Monterey City Council
February 21, 2023

continue to work through the issues related to cost recovery at a later time without delaying the expansion of the Pure Water Monterey Expansion Project.

The delay in signing the Water Purchase Agreement is costing an estimated $14 million. Further delays will add to the cost of construction and financing, putting a great burden on our ratepayers. M1W staff have secured over half of the project cost (~$40 million) in grant funding, that are at risk of being lost if not utilized in a timely manner.

We appreciate your consideration of our community’s request.

Respectfully,
Tyller Williamson
Mayor
City of Monterey
Council Regular Meeting, 2/21/2023, Item No. 6., Item Page 5, Packet Page 150 Council
Agenda Report
№08/22
FROM: Kimberly Cole, AICP, Community Development Director Christy Sabdo, AICP, Associate Planner, Planning Division SUBJECT: Progress Report on Monterey 2031 – a General Plan Update of the Housing, Land Use, and Safety Elements (Not a Project Under CEQA per Article 20, Section 15378 and Under General Rule Article 5, Section 15061) RECOMMENDATION:

That the Planning Commission and City Council receive a progress report on Monterey 2031 – General Plan Update – from the City’s consultant, Dyett and Bhatia – Urban and Regional Planners who will be presenting on this topic.

VALUE DRIVERS:

In collaboration with our community partners, work to improve the quality of life of all of our community members by fostering diversity, equity, and inclusion; championing equitable access to affordable housing; and maintaining a safe environment.

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

Support efforts and policies that provide equitable access to affordable housing in Monterey and the region.

Expand opportunities for people of all ages and abilities to bike and walk safely through active transportation, accessibility, and safety initiatives.

Foster a local government that is transparent and collaborative; and solicits, welcomes and appreciates input from all.

POLICY IMPLICATIONS:

The proposed General Plan update will meet the Value Drivers listed above. The project purpose is to plan for affordable housing while considering the environment.

There are no policy implications involved in receiving this progress report, though the report may inform the City of the policy implications of not updating the General Plan per State law.

FISCAL IMPLICATIONS:

Receiving a progress report is part of the overall costs for the General Plan Update, which totals $540,230.

Date: 2/21/2023
Item No.: 7.

Council Regular Meeting, 2/21/2023, Item No. 7., Item Page 1, Packet Page 151 ENVIRONMENTAL DETERMINATION:

The City of Monterey determined that the proposed action is not a project as defined by the California Environmental Quality Act (CEQA)(CCR, Title 14, Chapter 3 (“CEQA Guidelines), Article 20, Section 15378). In addition, CEQA Guidelines Section 15061 includes the general rule that CEQA applies only to activities which have 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 in question may have a significant effect on the environment, 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 or in the environment, this matter is not a project. Any subsequent discretionary projects resulting from this action will be assessed for CEQA applicability.

ALTERNATIVES CONSIDERED:

Council could decide not to hear a progress report on the Monterey 2031 – General Plan update. If staff does not proceed with the project, the City’s General Plan would be out of compliance with state law. The court may issue fines, among other penalties, for such noncompliance pursuant to Government Code section 65585(l). According to the San Francisco Chronicle, housing advocates filed 12 lawsuits against the cities of Burlingame, Cupertino, Daly City, Fairfax, Martinez, Novato, Palo Alto, Pinole, Pleasant Hill, Richmond, and Santa Clara County in February 2023 for alleged failure to comply with housing element requirements.

There is also a so-called builder’s remedy, which allows developers to bypass local zoning standards in order to build a certain percentage of affordable housing projects.

DISCUSSION:

Monterey 2031 – General Plan Update
Monterey 2031 is an important citywide project that involves updates to the Housing, Land Use, and Safety Elements of the City of Monterey General Plan to respond to emerging issues and new State laws. The City is required to update the Housing Element of our General Plan by December 15, 2023 to address demographic trends, market conditions, and new State laws.

Amid the ongoing housing shortage in California, Monterey is required to plan for 3,654 new homes over the next 8 years to accommodate this projected need. As a partially built-out community, integrating new housing into the fabric of the community will require a thoughtful approach to land use and community character. Ensuring consistency of the Land Use Element with the newly adopted Monterey Regional Airport Land Use Compatibility Plan is also required.

At the same time, State law triggers requirements to incorporate new data on natural hazards and climate change into the Safety Element along with actions to strengthen community resilience and emergency evacuation capacity.

Critical issues to be addressed in the General Plan Update include:
 Housing supply and affordability
 Land use mix and community character
 Climate change) and community resilience
 Fire hazard planning update
 Airport-related hazards, compatibility zones, and airport noise contours  Emergency preparedness and response
 Impact of new growth on military readiness activities Council Regular Meeting, 2/21/2023, Item No. 7., Item Page 2, Packet Page 152 What is RHNA and where does RHNA come from?
The Regional Housing Needs Assessment (more commonly referred to as RHNA) is a term that is central to the Housing Element process. It is the total number of new housing units that the City must plan to accommodate in the upcoming Housing Element cycle. RHNA is split into four categories representing different levels of affordability, based on median income level in the county.

The affordability categories are as follows:
 Very Low Income - Households making less than 50 percent of the area median income (AMI)
 Low Income - Households making 50-80 percent of AMI
 Moderate Income - Households making 80-120 percent of AMI  Above Moderate Income - Households making more than 120 percent of AMI HCD determines the estimated need for new housing in each region of California for the upcoming cycle, based on population projections and other factors including rates of vacancy, overcrowding, and cost burden. Each regional planning agency then allocates a target to each city or town within its jurisdiction, considering factors such as access to jobs, good schools, and healthy environmental conditions. For the Monterey Bay Area, the Association of Monterey Bay Area Governments (AMBAG) developed and refined a methodology for RHNA allocations with input from local jurisdictions in between August 2021 and October 2022.

What is the City’s RHNA?
The Final Regional Housing Needs Allocation Plan: 2023-2031 was adopted by the AMBAG Board of Directors (Resolution No. 2022-24) on October 12, 2022. For the period from December 15, 2023 through December 15, 2031, the City's RHNA allocation is a total of 3,654 new housing units, which must be planned to accommodate a variety of incomes (Table 1). The City is required to ensure that local zoning has sufficient capacity to meet RHNA at all income levels throughout the period.

Table 1: Final RHNA for the City of Monterey
Income Group Totals
Very Low Low Mod Above Mod
RHNA Total
City of Monterey 1,177 769 462 1,246 3,654
Satisfying RHNA requirements
Since housing production is driven largely by market forces, the City is not required to build new housing to meet its RHNA. The mandate in State law is that the City ensure that local zoning has sufficient capacity to meet RHNA for all income categories throughout the eight-year planning cycle. Additionally, HCD will review the Housing Element to ensure it includes policies and programs to facilitate accommodating the RHNA.

HCD is authorized in pursue penalties for jurisdictions that fail to adopt a certified Housing Element, including suspension of local authority to issue building permits or grant zoning changes, variances, or subdivision map approvals; court-imposed fines of up to $100,000 per month, which if not paid can be multiplied by a factor of six; or receivership, whereby a courtappointed agent is empowered to remedy identified Housing Element deficiencies and bring the Housing Element into substantial compliance with State law.

Council Regular Meeting, 2/21/2023, Item No. 7., Item Page 3, Packet Page 153 Monterey 2031 – Schedule for the Project
After releasing a Request for Proposals, the Community Development Department selected Dyett and Bhatia - Urban and Regional Planners (D&B) to partner with the City in updating the three general plan elements. A recognized leader in general plan preparation, D&B has led preparation of general plans for more than 65 California communities, including for many distinctive coastal communities like Monterey.

The project includes four key milestones, identifying issues and opportunities, alternatives exploration, draft general plan element preparation, and adoption and finalization (Figure 2).

Figure 2. Monterey 2031 - Project Phasing
Progress Report
During Phase 1, Issue and Opportunity Identification, the staff and D&B has:
 Compiled a Geographic Systems System (GIS) database for project research and analysis.
 Shared City documents and background information to the consultant that will be helpful in preparing the General Plan update.
 Initiated a project website on the City’s Have Your Say Monterey portal:
https://haveyoursaymonterey.org/monterey2031
 Sent SB 18 notifications to Native American Heritage Commission tribal consultation list  Held kick-off meetings with City staff, and military liaisons from the Army, Navy, and Coast Guard.
 Presented an Introduction to Monterey 2031 - General Plan update at the Monterey County Airport Land Use Commission.
 Held Listening Sessions on December 6, 7, and 8 at the Monterey Conference Center to directly connect with community members and provide a forum for residents to learn about the project, voice their priorities, and share their perspectives on issues and opportunities that will need to be addressed in the update.  Held Listening Sessions with individual City Council members in December 2022 & January 2023.
 Held Listening Sessions with individual Planning Commission members in January 2023  Staff has reviewed portions of the 6th Cycle Housing Element Background Report, including the Housing Needs Assessment, Housing Constraints Analysis, and Preliminary Housing Opportunity Sites and Environmental Constraints maps.  Met with Monterey High School Leadership Class to inform them of the Monterey 2031 – General Plan Update, and recruited students interested in designing and conducting a Youth-Led Survey to help inform the General Plan update. First survey meeting was held with the selected students at the high school. Students will present survey findings to the City Council.
 Interactive Online Survey will be released on Have Your Say Monterey in February.

Council Regular Meeting, 2/21/2023, Item No. 7., Item Page 4, Packet Page 154  Prepared Article for City Newsletter.
 CEQA analysis of General Plan update anticipated to begin in February 2023.

To bring awareness of the project, community outreach to date has included the creation of a webpage for Monterey 2031 (https://haveyoursaymonterey.org/monterey2031), continue to advertise project updates in the City Focus and other city newsletters. Community engagement will be robust at each stage of the project with tools such as: an interactive online survey, postcard mailers, Monterey 2031 website updates, City e-newsletter blasts, social media promotion, and a youth-led survey.

Listening Session Summary
The Community Development Department and planning consultant, Dyett and Bhatia, held fourteen listening sessions, between December 6 and December 8, 2022, to connect with community members and provide a forum for members to learn about the Monterey 2031 General Plan Update. The City sent out Held at the Monterey Conference Center, each listening session garnered discussion on topics such as housing, land use, community character, climate resilience, and emergency preparedness. Approximately fifty-six (56) individuals, including community members, professionals, land holders, housing developers and service providers, property managers, non-profit leaders, military liaisons, and interested residents participated in the sessions. The summaries below highlight the constraints and opportunities heard by the participants in each session. Recordings of the session are available in the title for each session.

Council Regular Meeting, 2/21/2023, Item No. 7., Item Page 5, Packet Page 155 Overall, the following are common themes/input expressed during the sessions:

Needs:
 State and local partnerships are needed to combat the youth homeless population in the Monterey.
 Housing is needed the most by people who can’t afford to live where they grew up, people living on fixed-incomes, and hospitality and service workers.  Addressing the need for affordable housing for hospitality and service workers.  Increase density in Monterey to attain the RHNA numbers.  Participants hope to desegregate income groups and research further inclusionary requirements versus inclusionary incentives.
 Participants mentioned Monterey needs workforce housing for hospitality workers, people who need to commute to Monterey for work, teachers, as well as faculty at the Naval Postgraduate School/Defense Language Institute.
 Need for mixed-income housing, corrective housing, housing with some character, and starter homes. A participant mentioned the housing in East Garrison as an example to look at.
 Participants suggested raising awareness in the community about natural hazards and what to do if they arise.
 Need housing in Monterey for people who work in the service industry and hospitality sector, older people who no longer can afford to live here, and younger people (about mid 30s) who cannot afford a home. Emphasis was that low-income households are most in need of housing in Monterey.

Challenges/Constraints:
 Lack of water supply is a major constraint to development of housing. In addition to water supply, density and property were noted as large constraints to housing development.
 Perceived lack of sense of urgency on behalf of the City; no sense of completion.  Impacts to traffic (near Downtown), roadway patterns, and circulation in general.  Discussion of what climate change would look like for the city, such as flooding near the coast, sea level rise, looking out for wildfire zones, and thinking about alternative evacuation routes.
 Major constraints to housing include the cost of living and wages, lack of housing stock for service workers (teachers and people working at CHOMP), and the linguistic isolation people may face in the community.
 Difficulty of hiring workers because they cannot afford to live in Monterey, or their commute is too long/far.
 Participants expressed residents may fear not knowing what development could look like, to which other participants mentioned there could be renderings made and visual preference survey sent beforehand.
 Hurdles to developing housing:
o Parking requirements, particularly in areas that have little parking left. o “Red tape”; discretionary review process.

Council Regular Meeting, 2/21/2023, Item No. 7., Item Page 6, Packet Page 156 o Multiple hearings from City Council and Planning Commission, fees by the California Department of Fish and Wildlife (CDFW), City and County, as well as the process of California Environmental Quality Act (CEQA). o Highly historic location, which limits development.
o Bar is too low for appeals in the development process. o Expensive to build a residential unit.
o The additional amount of amenities needed when developing residential housing, such as additional grocery stores, more fuel stations, and site drainage. o Environmental constraints, funding sources, parking, stormwater management, and various documents needed for due diligence.

Opportunities:
 Non-traditional alternatives for housing such as tiny homes and assisted living quarters.  Enhance buildings that are already in use to accommodate housing  Various living trends that can be opportunities, such as co-living, age-in-place, intergenerational households, and junior accessory dwelling units.  Encouraging major employers to partner with developers to construct housing, offering underused hotel units for employees, accessory dwelling units provided by churches, and encouraging Monterey Peninsula College to build housing.  Interest in providing market-rate apartments for demographics in need, specifically nurses, and doctors at CHOMP, students and faculty at the Naval Postgraduate School, students at Middlebury Institute, and folks that live in Downtown.  Local case studies of workforce housing, such as Pebble Beach and Cannery Row.  Live-work spaces (such as the Cannery Row hospitality apartments).  Developing additional accessory dwelling units.
 Exploring the development of commercial uses to residential units.  The idea of the City spearheading a matching system for roommates, for those who need a room and residents who have available bedrooms in their home.  Streamline housing development project in Monterey:
o Setting objective design standards and minimizing the number of hearings for development.
o Accessory dwelling units can be more flexible, specifically for existing nonconforming structures. o Agriculture housing in the City of Greenfield that can serve as an example of workforce housing.
 Potential opportunity sites for housing:
o Along North Fremont Street, including the site of former Eddie’s restaurant (2200 North Fremont), near Motel 6, CVS and car wash; and revamping businesses in this location as well.
o the Downtown core (including Franklin Street, Bank of America building, underutilized sites by McDonalds and Lake El Estero; and the Monterey Sports Center)
o Garden Road
o McGraw Hill
o Convert hangers at the airport to residential
o Land around Ryan Ranch
o Reuse of Fort Ord property
Council Regular Meeting, 2/21/2023, Item No. 7., Item Page 7, Packet Page 157 o Potential to upzone and develop the Del Monte Shopping Center o Cass Street
o Lighthouse Avenue
o Revamping the SR68 Plan
Other Suggestions:
 City should look into state and federal funds to bridge the gap in housing market and vulnerability of the City
 Participants also mentioned a variety of methods to either incentivize housing or inform the community. These suggestions include retrofitting and electrification [of existing housing stock], lot splits, having contractors teach the public about development, housing programs such as co-living situations with single room and a shared kitchen, as well as sending flyers to residents on various housing solutions.  Participants expressed interest in the City of Salinas’ Blue Zones Project and suggested the City explore this type of opportunity in the City.
 Participants mentioned that City of Santa Cruz has a loan program for homeowners wanting to build an accessory dwelling unit, which could facilitate development and could be an opportunity for Monterey. Participants also suggested looking into housing fund examples from Capitola and Santa Cruz.
 Suggestion to explore a vacancy tax.

Findings from Preliminary Housing Opportunity Sites Mapping Exercise A key component of the Housing Element is the inventory of sites with capacity for residential development to meet the City's assessed share of the regional housing need over the next 8 years. As a starting point for the creation of an updated inventory, the project team conducted an analysis to identify areas of the city with potential to accommodate new housing. There are relatively few vacant parcels within the city, so an important focus of the analysis was on identifying underutilized properties that offer opportunities for infill development. One indicator that a property is underutilized is when the value of the land is worth more than the buildings and structures on it, as this gives the owner an incentive to redevelop with new uses that command higher rents or sale prices. For example, a large surface parking lot with more spaces than are needed to serve the businesses at a shopping center could be considered underutilized and could be redeveloped with other uses to serve community needs, such as housing that in turn would provide more customers for the stores and restaurants on the site.

City-owned properties may also present opportunities, particularly when located adjacent to vacant and underutilized land.

Using GIS mapping software, vacant, underutilized, and City-owned properties in the city were identified and mapped. Areas where they are clustered present the best opportunities for redevelopment, as they are locations that can accommodate significant physical change. Maps have been prepared and will be shared at the meeting that show areas within Monterey with the largest clusters of properties with potential for development (called Opportunity Areas). These areas will be the focus of outreach to the community this Spring, as we explore opportunities for new housing with the community and whether land use changes or other improvements may be needed to facilitate their evolution in line with community aspirations and needs. The potential for natural and humanmade hazards in the Opportunity Areas will also be a critical consideration as we work with the community to refine the inventory of sites available for housing. At the meeting, staff will share maps that demonstrate the range of potential constraints on housing development that will be integral to the planning process.

Council Regular Meeting, 2/21/2023, Item No. 7., Item Page 8, Packet Page 158 Outside of the Opportunity areas, City-wide strategies for promoting housing will also be explored as part of the Housing Element Update, such as the development of ADUs and SB9 housing in established residential neighborhoods or the development of a congregational overlay that would facilitate affordable housing development on properties owned by religious institutions should those institutions wish to pursue that.

Interactive Online Survey – Kick-Off
An important component of the community engagement strategy for the Monterey 2031 project involves the design and launch of an interactive, map-based online survey to gather community input to inform development of the Housing Element Update. Recognizing that many residents lead busy lives and may not be able to set aside time to participate in person, the survey will be conducted online using a software platform that has the ability to integrate images, video, and maps, allowing participants to engage with and comment directly on the material presented on their own time from their laptop, smartphone, or home computer. The survey will be structured to allow participants to provide quick responses if they only have a few minutes to contribute or to take a deeper dive into issues if they have more time to spend.

Drawing on the findings of the preliminary opportunity sites analysis, the survey will present several subareas of the city with the potential to accommodate new housing and ask participants to share their thoughts on whether each location is appropriate for housing, what types could best be accommodated, and what other improvements or amenities would be needed to successfully integrate housing into the areas. Participants will be able to toggle on and off various map layers with information on environmental constraints and existing conditions to help inform their responses.

To promote the survey and encourage robust participation, a variety of outreach activities is planned. Mailers in both English and Spanish will be sent to all residents in the City (i.e., property owners and renters) inviting participation, and the project team will also conduct pop up events at locations throughout town to get the word out and encourage participation. The survey will be live from February 21 through March 20, 2023.

For those that do not have access to a computer or prefer to comment in person, a map and survey questions will be available in person at the Monterey Library.

Water
Water is the number one constraint to new housing development as new water meters can not currently be placed as a result of the Cease and Desist Order. Without the ability to set new water meters, housing production will be minimal. Staff has prepared a synopsis of the water situation and challenges addressing the shortfalls of the current planning efforts of the Monterey Peninsula Water Management District. (Attachment 1).

The City will be formally requesting a Water Supply Assessment, subject to the requirements of SB 610, be prepared as part of the Environmental Impact Report.

SAB/kc
Attachment 1. Housing Demand Versus Water Supply Analysis e: Andrew Hill, Principal, Dyett and Bhatia
Council Regular Meeting, 2/21/2023, Item No. 7., Item Page 9, Packet Page 159 Housing List
All Business Associations
All Neighborhood Associations
LandWatch Monterey County
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, 2/21/2023, Item No. 7., Item Page 10, Packet Page 160 ATTACHMENT 1
Housing Demand Versus Water Supply
While the AMBAG RHNA allocation requires the City to plan for 3,654 new housing units, there will not be sufficient water supply allocated to meet water demands to construct all 3,654 units by 2031. The required RHNA allocation for the City of Monterey would result in approximately 7,819 new residents1. The Monterey Peninsula Water Management District’s (MPWMD) adopted Technical Memorandum 2022 Supply and Demand Forecast2 only includes forecasted water demands for a population increase in Monterey of 1,469 new residents by 2045 (2045 Monterey projected population of 29,639 – 2020 Monterey population estimate of 28,170) (Table 2).

In summary, MPWMD’s 2045 Water Demand Forecast includes the following assumptions:

MPWMD’s forecast is based on the AMBAG 2022 Regional Growth Forecast and uses current 5-year average water production, a measure of the total water required to “feed” the system for customer use, before losses and fire flows, as the base. Starting with three years of actual consumption data (2017, 2018, and 2019 – pre-COVID), MPWMD allocated consumption for residential and nonresidential by political jurisdiction, based on the proportionate percentages of each then mapped the current base production to the same proportions.

Assuming all prospective population and housing growth is captured in AMBAG’s Regional Growth Forecast and all commercial economic expansion occurs at the same rate as AMBAG’s employment projections, MPWMD offers the following water demand forecast”2 (Pg 6 of MPWMD report; Refer to Table 2 below). 1 City of Monterey’s RHNA allocation of 3,654 units x 2.14 persons per household (Census 2017-2021) = 7,819 new residents. https://www.census.gov/quickfacts/montereycitycalifornia 2 2022. MPWMD. Technical Memorandum. 2022 Supply and Demand Forecast. Adopted September 19, 2022. Available online: https://www.mpwmd.net/wp-content/uploads/2022-Supply-and-Demand-Forecastw-Attachments-1.pdf Council Regular Meeting, 2/21/2023, Item No. 7., Item Page 11, Packet Page 161 ATTACHMENT 1
Table 2. MPWMD Adopted 2045 Water Demand Projections
Source: MPWMD. 20222 Appendix D, page 115.

The State, or more specifically HCD, does not require jurisdictions to act as a developer and construct 3,654 housing units by 2031; the City is only required by the State to accommodate this increased capacity of housing units in the 6th Cycle Housing Element of the General Plan and demonstrate that current land use and development standards do not inordinately constrain the construction of these units.

HCD’s policies and 6th Cycle Housing Element requirements are in response to California’s housing challenges. According to HCD, the current housing challenges include:
 Not enough housing being built: During the last ten years, housing production averaged fewer than 80,000 new homes each year, and ongoing production continues to fall far below the projected need of 180,000 additional homes annually.  Increased inequality and lack of opportunities: Lack of supply and rising costs are compounding growing inequality and limiting advancement opportunities for younger Californians. Without intervention, much of the new housing growth is expected to be focused in areas where fewer jobs are available to the families that live there.

Council Regular Meeting, 2/21/2023, Item No. 7., Item Page 12, Packet Page 162 ATTACHMENT 1
 Too much of people's incomes going toward rent: The majority of Californian renters — more than 3 million households — pay more than 30 percent of their income toward rent, and nearly one-third — more than 1.5 million households — pay more than 50 percent of their income toward rent.
 Fewer people becoming homeowners: Overall homeownership rates are at their lowest since the 1940s.
 Disproportionate number of Californians experiencing homelessness: California is home to 12 percent of the nation’s population, but a disproportionate 22 percent of the nation’s homeless population.
 Many people facing multiple, seemingly insurmountable barriers — beyond just cost — in trying to find an affordable place to live: For California’s vulnerable populations, discrimination and inadequate accommodations for people with disabilities are worsening housing cost and affordability challenges.3 Again, while the City is not required to construct housing to fulfill the RHNA allocation, the City Council is committed to addressing the City’s shortage of affordable housing. The City Council adopted a set of specific program, policy, or projects that support the City’s Strategic Priorities.

Under Value Driver #5 and #6, the City Council supports staff work programs that focus on providing affordable housing and securing water resources to provide this housing.

Value Driver #5: Champion regional and local efforts to secure adequate, affordable, and sustainable water sources for the city, now and into the future. The Council recognizes that access to a dependable supply of fresh water is a significant gating factor that impacts the City’s ability to provide affordable housing and promote economic vitality consistent with the goals described in the City’s General Plan. Securing water sources is a strategic priority for staffs’ work program efforts. This strategy includes staff continuing to advocate and lobby on behalf of the City of Monterey’s interests on regional water issues, with an emphasis on securing water for affordable housing projects.

Value Driver #6: Support efforts and policies that provide equitable access to affordable housing in Monterey and the region. The Council embraces efforts that provide equitable access to affordable housing, including balanced approaches to increase housing supply, rental resources and assistance, and housing rehabilitation grants to homeless, low-income, senior, and disabled individuals. This strategy includes staff efforts that support affordable housing through modern zoning policies/ordinances, ADU policies, housing grants, review of density requirements, and consideration of City-owned sites for affordable housing; and addressing homelessness through programs, partnerships, and support of homeless service agencies.4
Recognizing the urgent need for housing in Monterey, the City Council has petitioned the State Water Resources Control Board (SWRCB) to lift the Cease and Desist Order now that the illegal diversions have ceased; and has asked the Monterey Peninsula Water Management District (MPWMD), responsible for developing long-term water supply for the Monterey Peninsula cities in the district, to support the request. Former Major Clyde Roberson in a letter dated April 13, 2021, to the SWRCB requested relief from the Cease and Desist 3 2023. California Housing and Community Development (HUD). Addressing a Variety of Housing Challenges. https://www.hcd.ca.gov/policy-and-research/addressing-variety-housing-challenges 4 2023, January 25. City Council Special Meeting. Amended Agenda. https://isearchmonterey.org/OnBaseAgendaOnline/Meetings/ViewMeeting?id=5626&doctype=1 Council Regular Meeting, 2/21/2023, Item No. 7., Item Page 13, Packet Page 163 ATTACHMENT 1
Order for health and safety needs related to housing. The letter states:

Housing production in the City of Monterey is basically at a standstill due to the Cease and Desist Order (CDO). Last year, the City only produced 13 accessory dwelling units. These units could only be developed when the main home’s water credits were reduced such as bathroom removed. Housing production in the City is woefully inadequate to meet demand, prevent homelessness and meet State and regional housing goals for the City.

There are at least 441 units in the pipeline readying for construction including:
289 units on Garden Road and 152 100%-affordable housing units on City owned parcels. In addition to the 289 units proposed on Garden Road, the District’s request from relief would allow up to 400 units. The City would need approximately 25 acre feet of water to construct the 400 housing units. Without relief from Condition 2, development of these projects is uncertain5.

The SWRCB denied the request, but the agency recently expressed support for the regional desalination plant.

Regional Long-Range Water Supply Projects
There are long-range water supply projects that will create and expand three water supply sources for the Monterey Peninsula to reduce regional demand on groundwater and the Carmel River (Figure 1). The overall Monterey Peninsula Water Supply Project (MPWSP) involves several major components – (1) the Cal-Am desalination facility consolidated with other water infrastructure serving the area, (2) a water recycling project (Pure Water Monterey) purchased from the Monterey Regional Water Pollution Control Agency (MPWPCA), and (3) an Aquifer Storage and Recovery (ASR) wells project.
5 2021. City letter to California State Water Resources Control Board. April 13, 2021. https://files.monterey.org/Document%20Center/City%20Hall/City%20Council/Advocacy%20Letters/21_04 13-Support-for-the-MPWMD-Request-for-Reliefpdf.pdf
Council Regular Meeting, 2/21/2023, Item No. 7., Item Page 14, Packet Page 164 ATTACHMENT 1
Figure 1. MPWSP Overview
Desalination Facility
On November 17, 2022, the California Coastal Commission approved a Consolidated Coastal Development Permit for the California-American Water Company (Cal-Am) to construct and operate a desalination facility, a well field, water transmission pipelines, pump station, and other related infrastructure. The desalination facility will be part of the overall MPWSP. The desalination facility would provide potable water for customers in Cal-Am’s service area in the Monterey Peninsula region, which have experienced decades of water shortages resulting from drought, overpumping of groundwater sources, seawater intrusion, proposed supply projects not being completed, and other causes. The Monterey Peninsula region faces unique water supply challenges that are likely to be exacerbated by climate change. The desalination facility would be constructed in phases, a smaller initial phase would produce 4.8 million gallons per day (“mgd”) per year (~5,372 acre-feet) and the second phase, which would produce a combined total of 6.4 mgd per year (~6,250 acre feet per year), would occur only if Cal-Am can demonstrate a need for the additional water supply and demonstrate that the first phase has been operating in a manner that is protective of local groundwater supplies and nearby wetlands.

The desalination facility will use advanced slant well technology to draw ocean water from beneath a sandy beach located at the former CEMEX industrial sand mining facility in Marina, thereby minimizing any harm to marine life. At the Project’s maximum build-out, it would include up to six new slant wells to be located within a Cal-Am easement in part of the CEMEX sand mining facility near the Monterey Bay shoreline in the City of Marina. The Project would also include conversion of a test slant well to a permanent well on the same site, as well as four main pipelines, with part of each in the coastal zone. The desalination facility itself would be constructed inland of the coastal zone and would discharge processed saline brine to an existing outfall operated by the regional wastewater treatment agency, Monterey One Water (“M1W”). This outfall line would need to be modified in order to discharge the brine. The treatment plant will be powered with 100 percent renewable power or equivalents to achieve net-zero Greenhouse Gas emission.

Council Regular Meeting, 2/21/2023, Item No. 7., Item Page 15, Packet Page 165 ATTACHMENT 1
Cal Am says it expects to have the project operational in five years6.

The SWRCB submitted two comment letters to the California Coastal Commission in association with the Cal-Am Coastal Development Permit application for the desalination plant (Coastal Commission application 9-20-0603). Eileen Sobeck, SWRCB Executive Director, in her letter dated October 25, 2022 stated:

State Water Board Order 2016-0016 provides that the conditions of the State Water Board’s orders remain in effect until “Cal-Am certifies, with supporting documentation, that it has obtained a permanent supply of water that has been substituted for the water illegally diverted from the Carmel River” and the Deputy Director of the State Water Board’s Division of Water Rights concurs with the certification.

Cal-Am will not report its water use for Water Year 2021-2022 until February 1, 2023, and therefore the State Water Board is not yet able to determine whether Cal-Am is in compliance with their water rights (including permit terms such as maximum annual diversion limits). Because of the present uncertainty of Cal-Am’s compliance, the State Water Board recently denied requests to modify or lift the cease-and-desist order (Eileen Sobeck, letter to David Stoldt, July 28, 2022). As California has just experienced its driest three-year period on record, continued unlawful diversions will cause even greater harm to the Carmel River’s protected fish and wildlife.

Although Cal-Am and the Monterey Peninsula Water Management District (MPWMD) have implemented various measures to reduce diversions from the Carmel River, it is undisputed that Cal-Am has not yet secured a permanent replacement water supply. Cal-Am and MPWMD have made efforts to reduce demand, including programs encouraging conservation by business and residential customers, water efficiency requirements, and tiered conservation rates, and to develop new supplies, such as the Sand City desalination plant, Pebble Beach water recycling facility, and new lawful rights in the Carmel River.

Cal-Am currently relies on Pure Water Monterey to produce 3,500 acre-feet per year. The California Public Utilities Commission will consider whether to authorize Cal-Am to enter into a water purchase agreement for the Pure Water Monterey expansion project, which could provide an additional 2,250 acre-feet annually of treated water by 2024 or 2025.

The Pure Water Monterey expansion project may constitute an important component of a permanent replacement water supply, if it is developed and demonstrated to be a reliable, drought-resilient water source. However, based on regional housing needs, source reliability, and the effects of aridification on California’s water supplies, the State Water Board believes it is prudent for CalAm to pursue additional sources of water that are sustainable and urges the Coastal Commission to consider the proposed desalination facility as a potentially vital municipal water supply that also could help to protect one of the region’s most important environmental assets.

The water supply for the Monterey Peninsula remains precarious, and will continue 6 California Coastal Commission, Staff Report: Recommendation on Appeal De Novo. November 17, 2022. https://www.coastal.ca.gov/meetings/agenda/#/2022/11 Council Regular Meeting, 2/21/2023, Item No. 7., Item Page 16, Packet Page 166 ATTACHMENT 1
to be so until a long-term, resilient replacement water supply is developed. The conditions of the State Water Board’s orders remain in effect, including a prohibition on new water service connections served from the Carmel River. The State Water Board supports Cal-Am’s efforts to develop a diverse and droughtresilient water supply portfolio. Desalination that is appropriately permitted and conditioned to protect the environment can be one part of a long-term water supply solution.

The Regional Water Quality Control Board, Central Coast Region (Central Coast Water Board) has permitting authority over the desalination facility project and will apply subdivision (b) of section 13142.5 of the Water Code and the California Ocean Plan in the exercise of that authority.7
Water Recycling Facility (Pure Water Monterey/Groundwater Replenishment Project (PWM/GWR Project)
Pure Water Monterey Groundwater Replenishment Project (PWM/GWR) is an advanced water recycling project, jointly developed by two public agencies - a partnership between Monterey One Water and MPWMD. The project recycles wastewater through an advanced treatment process.

The primary objective of the PWM/GWR Project was to replenish the Seaside Groundwater Basin (Seaside Basin) with 3,500 acre-feet per year (AFY) of purified recycled water to replace a portion of California American Water’s (CalAm) water supply as required by SWRCB orders. The PWM/GWR Project as approved in 2015, included a 4.0 million gallon per day (mgd) capacity Advanced Water Purification Facility for treatment and production of purified recycled water for conveyance and injection into the Seaside Basin using conveyance pipelines, a booster pump station, and a series of shallow and deep Injection Wells. The injected water would then mix with the existing groundwater and be stored for extraction and urban use by CalAm.

Subsequent to the approval of the PWM/GWR Project, minor changes to components of the PWM/GWR Project were subject to discretionary action by responsible agencies. These actions included approval of a water distribution system permit by MPWMD, including the addition of the Hilby Pump Station and minor re-alignments to the Monterey Pipeline. On October 30, 2017, the M1W Board approved modifications to the PWM/GWR Project (Addendum No. 3 to the PWM/GWR Project, “Addendum No. 3”) to increase the operational capacity (peak or maximum flowrate) of the approved Advanced Water Purification Facility from 4.0 mgd to 5.0 mgd. The purposes of the 2017 modifications were to enable delivery of 600 AFY of purified recycled water to Marina Coast Water District (MCWD) for urban landscape irrigation by MCWD customers and to allow the shared use of existing pipelines and new pipelines and storage facilities for this irrigation use and for conveyance of purified recycled water to Injection Wells in the Seaside Basin8.

Using proven, advanced, multi-stage treatment to provide a safe, reliable and sustainable drinking 7 California Coastal Commission, Staff Report: Recommendation on Appeal De Novo. November 17, 2022. Correspondence from Elected Officials, Tribal Officials, and Organizations:
https://www.coastal.ca.gov/meetings/agenda/#/2022/11
8 Monterey One Water and MPWMD, Draft Supplemental EIR for the Proposed Modifications to the Pure Water Monterey Groundwater Replenishment Project, November 2019.

Viewed 1/24/2023 (pg 1-2). https://purewatermonterey.org/wp/wp-content/uploads/Main-Body-of-M1WDraft-Supplemental-EIR-Nov-7-2019.pdf Council Regular Meeting, 2/21/2023, Item No. 7., Item Page 17, Packet Page 167 ATTACHMENT 1
water supply that will comply with or exceed strict state and federal drinking water standards, the PWM/GWR Project will reduce water taken from the Carmel River and the Seaside Basin. It also provides a source of tertiary treated water for the Salinas Valley agricultural industry while providing treatment for their impaired surface waters. In doing so, it will help meet regulatory orders and enhance water supply reliability by diversifying local water sources9.

Aquifer Storage and Recovery project
The MPWSP will expand Cal-Am’s current Seaside Groundwater Basin ASR project – a partnership with MPWMD – which captures excess winter flows in the Carmel River (~December 1 st through May 31st) from the Carmel River Alluvial Aquifer for storage in the Seaside Aquifer, and conveys the water to the Seaside Basin via the existing Cal-Am delivery system, and injecting the water into ASR wells for subsequent recovery and delivery to Cal-Am customers during dry periods (normally June 1st through November 30th of the water year the water is injected). Winter flows are considered excess only when they exceed what is needed to protect the river’s threatened population of steelhead10.
9 Monterey Peninsula Water Supply Project. About Us. Viewed 1/24/2023. https://purewatermonterey.org/about-us/
10 MPWMD. Resolution No. 2016-12. Viewed 1/24/2023.
https://www.mpwmd.net/resolutions/2016/Resolution2016-12.pdf Council Regular Meeting, 2/21/2023, Item No. 7., Item Page 18, Packet Page 168 Council
Agenda Report
FROM: Kimberly Cole, AICP, Community Development Director SUBJECT: Second Reading of an Ordinance to Repeal and Replace 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) RECOMMENDATION:

That the City Council approve the second reading of an ordinance to repeal and replace City Code Chapter 38, Article 17, Section 112.4 related to Wireless Communication Facilities drafted by the Wireless Subcommittee.

VALUE DRIVERS:

In collaboration with our community partners, work to improve the quality of life of all of our community members by fostering diversity, equity, and inclusion; championing equitable access to affordable housing; and maintaining a safe environment.

Serve as stewards of the City’s financial resources through sound economic vitality efforts, streamlining operations, reasonable revenue enhancements, visionary long-term planning, fiscal transparency, and community partnerships.

POLICY IMPLICATIONS:

The proposed ordinance replaces the City’s existing Wireless Communication Facility regulations in its entirety.

FISCAL IMPLICATIONS:

The City will continue to collect permit fees under its existing fee schedule for permits reviewed under Chapter 38, Article 17, Section 112.4. As of November 4, 2022, the City incurred $278,411.64 in outside legal counsel costs from 2018 through December 2022 in connection with the facilitation and review of the Wireless Subcommittee’s ordinance. The majority of these costs were the direct result of the multiple Wireless Subcommittee meetings. In 2022, outside counsel preparation and attendance for the five Planning Commission hearings cost $59,000.

Among other things, the Commission required an extensive analysis of every change to the Subcommittee draft ordinance which resulted in a document with approximately 100 footnotes.

ENVIRONMENTAL DETERMINATION:

The City of Monterey Planning Office determined the project is exempt from the California Environmental Quality Act (CEQA) Guidelines (Article 19, Section 15305, Class 5) because the project consists of a zoning ordinance amendment to modify existing regulations affecting wireless communication facilities, which would not result in any changes in density or traffic patterns. Additionally, the project is exempt from CEQA pursuant to CEQA Guidelines section Date: 2/21/2023
Item No.: 8.

Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 1, Packet Page 169 15308 (Class 8) as an action taken by a regulatory agency to assure the enhancement and protection of the environment, which includes the visual environment of the City.

Furthermore, the project does not qualify for any of the exceptions to the categorical exemptions found at CEQA Guidelines Section 15300.2.

Exception a - Location. Classes 3, 4, 5, 6, and 11 are qualified by consideration of where the project is to be located - a project that is ordinarily insignificant in its impact on the environment may in a particularly sensitive environment be significant. Therefore, these classes are considered to apply in all instances, except where the project may impact an environmental resource of hazardous or critical concern where designated, precisely mapped, and officially adopted pursuant to law by federal, state, or local agencies. The environment is not particularly sensitive because the project is purely a zoning ordinance amendment. Therefore, impacts would not occur. Any subsequent discretionary projects resulting from this action will be assessed for CEQA applicability.

Exception b - Cumulative Impact. All exemptions for these classes are inapplicable when the cumulative impact of successive projects of the same type in the same place, over time is significant. No cumulative impact would occur because the project is purely a zoning ordinance amendment that would regulate the visual appearance of communications structures in the City right-of-way with uniform, objective standards. Therefore, cumulative impacts would not occur.

Any subsequent discretionary projects resulting from this action will be assessed for CEQA applicability.

Exception c - Significant Effect. A categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances. There are no unusual circumstances with this project because the project is purely a zoning ordinance amendment and the land use limitations imposed by the amendment are commonplace under Class 5 and Class 8 categorical exemptions. Therefore, significant impacts would not occur. Any subsequent discretionary projects resulting from this action will be assessed on a project-by-project basis for CEQA applicability.

Exception d - Scenic Highways. A categorical exemption shall not be used for a project which may result in damage to scenic resources, including but not limited to, trees, historic buildings, rock outcroppings, or similar resources, within a highway officially designated as a state scenic highway. This does not apply to improvements which are required as mitigation by an adopted negative declaration or certified Environmental Impact Report (EIR). The project is purely a zoning ordinance amendment, which would not damage scenic resources, but rather, assure their protection. Any subsequent discretionary projects resulting from this action will be assessed for CEQA applicability.

Exception e - Hazardous Waste Sites. A categorical exemption shall not be used for a project located on a site which is included on any list compiled pursuant to Section 65962.5 of the Government Code. The project is purely a zoning ordinance amendment regulating the visual effect of communications structures. Therefore, impacts to hazardous waste sites would not occur. Any subsequent discretionary projects resulting from this action will be assessed for CEQA applicability.

Exception f - Historical Resources. A categorical exemption shall not be used for a project which may cause a substantial adverse change in the significance of a historical resource. The project is purely a zoning ordinance amendment that would regulate the visual effect of Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 2, Packet Page 170 communications structures in the City, and not any historic resources. Therefore, impacts to historic resources would not occur. Any subsequent discretionary projects resulting from this action will be assessed for CEQA applicability.

ALTERNATIVES CONSIDERED:

The City Council could choose to not approve the second reading of the ordinance.

DISCUSSION:

On February 7, 2023, the City Council passed a first reading of an Ordinance to Repeal and Replace City Code Chapter 38 Article 17 Section 112.4 related to wireless communication facilities.

As part of the required second reading today, the Council requested more information about how the proposed ordinance protects the City’s neighborhoods. Section 38-112.4(F)(9) of the proposed ordinance establishes the following preferred locations for wireless facilities:
 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
 Parcels and public rights-of-way in industrial districts.  Parcels and public rights-of-way in commercial districts Section 38-112.4(F)(10)(a)-(f) imposes special considerations for certain districts, including residential zoning districts. For example, to gain approval to locate in a residential zoning district (R-E, R-1, R-2, R-3, and PC zones not governed by a Specific Plan), Section 38-112.4(F)(10)(b) requires the wireless provider to show that the denial of the application will result in an effective prohibition. An effective prohibition is a federal standard and is the strongest regulation that can be applied to wireless carriers. Specifically, the federal standard states:
“The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof—…shall not prohibit or have the effect of prohibiting the provision of personal wireless services.”
Basically, the wireless applicant will have to demonstrate to the Planning Commission that the proposed facility has to be located in a residential district in order to provide the personal wireless service. There are also other circumstances and locations where an effective prohibition showing is required by Section 38-112.4(F)(10).

To approve an application in this circumstance, the Planning Commission will have to determine the evidence supports making the required findings, including the specific finding in Section 38- 112.4(J)((2)(c) that 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 the 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.

How an applicant might attempt to meet its burden to show an effective prohibition will depend on the nature of the particular application and the evidence required will be guided by how the Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 3, Packet Page 171 effective prohibition standard has been applied and interpreted by federal courts and the FCC in various circumstances. For example, initial case law in the Ninth Circuit required a showing of a significant gap in service coverage and an alternatives analysis to determine the least intrusive means of filling the significant gap in light of the local wireless siting standards. However, in 2018, the FCC established a “materially inhibits” standard in its Small Cell Order, and this Order was upheld by the Ninth Circuit as well. Among other things, the FCC found that aesthetic requirements for small cells that are reasonable in that they are technically feasible and reasonably directed to avoiding or remedying the intangible public harm of unsightly or out-ofcharacter deployments are permissible. The FCC also stated that a legal requirement could materially inhibit service in numerous ways—not only by rendering a service provider unable to provide an existing service in a new geographic area or by restricting the entry of a new provider in providing service in a particular area, but also by materially inhibiting the introduction of new services or the improvement of existing services.

During the Planning Commission hearings additional language was added to the ordinance encouraging applicants to submit certain types of information regarding their effective prohibition showing as described below:
a. If applicant contends that denial of the application would result in an effective prohibition under federal law, or otherwise violate federal law such that the application shall be approved, it shall provide all facts that it relies upon and clear and convincing evidence for that claim. Where the applicant is not a wireless service provider, the information shall be provided for the affected wireless service providers. Applicants who claim that denial would be a “prohibition” or “effective prohibition” are encouraged to address at least the following:
i. If it is contended that compliance with an aesthetic standard is not reasonable, explain why in detail, and describe alternatives considered in determining whether service objectives for the wireless service provider could be reasonably satisfied by other means.
ii. What existing or planned personal wireless services the affected wireless service provider would be effectively prohibited from providing if the application is denied.
iii. The factual basis for any claim that denial will substantially impair a wireless service provider’s ability to provide a personal wireless service, and the information relied upon in support of that claim. iv. The factual basis for any claim that denial would result in a prohibition or effective prohibition under applicable precedent in the United States Court of Appeals for the Ninth Circuit, and the information relied upon in support of that claim.
v. Current signal coverage, by providing maps showing existing coverage in the area to be serviced by the proposed facilities (including areas outside the City, if applicable). In order to be treated as probative, maps shall be dated, and based on data collected within the prior six months or less, to Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 4, Packet Page 172 reflect all facilities installed inside and outside of the City as of the date of the application that may affect coverage.
vi. The exact geographic area that would be served by the proposed facility, using coverage maps that describe the distances between the proposed and existing sites that show how the proposed service area fits into and is necessary to each affected wireless service provider’s provision of personal wireless services given existing facilities, and planned or pending modifications or additions to those facilities that that may affect the provision of services;
vii. Alternatives considered within and outside the City prior to the submission of the application, including but not limited to alternatives that take advantage of software capabilities or reconfiguration of existing sites; the reason the alternative chosen was selected, and the reason other alternatives were not selected with supporting evidence; and why applicant contends existing sites could not be used to provide service. viii. Provide results of drive tests within the specific geographic areas where an effective prohibition is being claimed. In order to be treated as probative, maps shall be dated, and based on data collected within the prior six months or less, to reflect all facilities installed inside and outside of the City as of the date of the application that may affect coverage. The data shall specify the date and time of the test, the location in longitude and latitude of each point at which signal strength was recorded, and each signal strength recorded for each frequency at which the carrier provides personal wireless services to its customers. The signal strength data shall be provided in a separate table for each frequency. Drive test maps shall be submitted depicting the actual signal strengths recorded during the drive test for each frequency at which the carrier provides personal wireless services to its customers.
vix. Provide dropped call records and denial of service records evidencing the number and percentage of calls within which the carrier’s customers were unable to initiate, maintain and conclude the use of the carrier’s personal wireless services without actual loss of service or interruption of service.

The above list provides guidance for wireless applicants.

Finally, as another example of special considerations, Section 38-112.4(F)(10)(f) would allow an application for a wireless communications facility proposed for the public rights-of-way to be granted if the applicant shows that issuance of a permit is required by state law. An effective prohibition showing would not be required in this circumstance. However, the ordinance provides that: “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.”
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 5, Packet Page 173 Comparison to Cities of Malibu and Petaluma
The Council also requested additional analysis of the wireless ordinances from two jurisdictions – Malibu and Petaluma. The cities are different in terms of size, population and topography as shown in Table 1. Monterey and Petaluma only have ordinances, and Malibu has two ordinances and two resolutions (one set for inside the public right-of-way and one set for outside the public right-of-way). The Monterey and Malibu Ordinances are relatively new and the Petaluma Ordinance dates back to 1996, with some updates to the definitions and the small cell facilities section in 2018.

All the cities have developed regulations to discourage wireless facilities in their residential neighborhoods. Monterey’s ordinance states that a wireless facility in a residential zoning district will require a showing of an effective prohibition. Malibu’s resolution states that residential, public open space and recreational vehicle park zoning districts, parks and schools as the least appropriate possible locations, and the absolute last choices for siting. The resolution also creates a setback minimum distance of at least one hundred and twenty (120) percent of the height of the facility or monopole from any property line abutting a residentially zoned property. The Petaluma Ordinance states each small cell must be at least five hundred feet away from any existing or approved residence.

In terms of exceptions or waivers, both Monterey and Malibu reference effective prohibition.

The older Petaluma Ordinance does not mention effective prohibition.

As mentioned at the Council meeting, it is a policy option to re-work the entire ordinance and create an approach similar to Malibu with an ordinance and resolution (or two).

Monterey Malibu Petaluma
Size 8.42 square miles 19.8 square miles 14.5 square miles Population 29,874 persons 10,429 persons 59,403 persons Topography
Ordinance X (Adopted 2023)
Contains Location
and Design
Standards
Right-of-Way 477U
(December 2020)
Non-ROW 484 (April
2021)
X (Adopted 1996;
updated 2018)
Contains Location and
Design Standards
Resolution No 20-65 Right-of-Way
21-17Contains Location
and Design Standards)
No
Sources:

1. https://en.wikipedia.org/wiki/Malibu,_California#Geography

2. https://en.wikipedia.org/wiki/Petaluma,_California

3. https://en.wikipedia.org/wiki/Monterey,_California#Geography

4. https://www.census.gov/quickfacts/malibucitycalifornia

5. https://www.census.gov/quickfacts/petalumacitycalifornia

6. https://www.census.gov/quickfacts/montereycitycalifornia

7. Monterey Ordinance – Attachment 2

8. Malibu Ordinance and Resolution – Attachment 3

9. Petaluma Ordinance – Attachment 4
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 6, Packet Page 174 Major Location and Design Standards Related to Residential Uses:

Monterey
Ordinance
a. 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.

Malibu
Non-ROW
Resolution
B. All new freestanding wireless communications facilities and monopoles shall be set back a minimum distance of at least one hundred and twenty (120) percent of the height of the facility or monopole from any property line abutting a residentially zoned property. This minimum setback is not subject to the waivers allowed under Section 7 of this Resolution.

6. The City expressly designates residential, public open space and recreational vehicle park zoning districts, parks and schools as the least appropriate possible locations, and the absolute last choices for siting.

Petaluma
Ordinance

14.44.095
Small cell facilities — Basic requirements.

Small cell facilities as defined in Section 14.44.020 may be installed, erected, maintained and/or operated in any commercial or industrial zoning district where such antennas are permitted under this title, upon the issuance of a minor conditional use permit, so long as all the following conditions are met:

A. The small cell antenna must connect to an already existing utility pole that can support its weight.

B. All new wires needed to service the small cell must be installed within the width of the existing utility pole so as to not exceed the diameter and height of the existing utility pole.

C. All ground-mounted equipment not installed inside the pole must be undergrounded, flush to the ground, within three feet of the utility pole.

D. Each small cell must be at least one thousand five hundred feet away from the nearest small cell facility.

E. Aside from the transmitter/antenna itself, no additional equipment may be visible.

F. Each small cell must be at least five hundred feet away from any existing or approved residence.

G. An encroachment permit must be obtained for any work in the public rightof-way.

Waivers and Exceptions:

Monterey
Ordinance
a. If applicant contends that denial of the application would result in an effective prohibition under federal law, or otherwise violate federal law such that the application shall be approved, it shall provide all facts that it relies upon and clear and convincing evidence for that claim. Where the applicant is not a wireless service provider, the information shall be provided for the affected wireless service providers. Applicants who claim that denial would be a “prohibition” or “effective prohibition” are encouraged to address at least the following:
i. If it is contended that compliance with an aesthetic standard is not reasonable, explain why in detail, and describe alternatives considered in determining whether service objectives for the wireless service provider could be reasonably satisfied by other means.

Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 7, Packet Page 175 ii. What existing or planned personal wireless services the affected wireless service provider would be effectively prohibited from providing if the application is denied.
iii. The factual basis for any claim that denial will substantially impair a wireless service provider’s ability to provide a personal wireless service, and the information relied upon in support of that claim. iv. The factual basis for any claim that denial would result in a prohibition or effective prohibition under applicable precedent in the United States Court of Appeals for the Ninth Circuit, and the information relied upon in support of that claim.
v. Current signal coverage, by providing maps showing existing coverage in the area to be serviced by the proposed facilities (including areas outside the City, if applicable). In order to be treated as probative, maps shall be dated, and based on data collected within the prior six months or less, to reflect all facilities installed inside and outside of the City as of the date of the application that may affect coverage. vi. The exact geographic area that would be served by the proposed facility, using coverage maps that describe the distances between the proposed and existing sites that show how the proposed service area fits into and is necessary to each affected wireless service provider’s provision of personal wireless services given existing facilities, and planned or pending modifications or additions to those facilities that that may affect the provision of services;
vii. Alternatives considered within and outside the City prior to the submission of the application, including but not limited to alternatives that take advantage of software capabilities or reconfiguration of existing sites; the reason the alternative chosen was selected, and the reason other alternatives were not selected with supporting evidence; and why applicant contends existing sites could not be used to provide service. viii. Provide results of drive tests within the specific geographic areas where an effective prohibition is being claimed. In order to be treated as probative, maps shall be dated, and based on data collected within the prior six months or less, to reflect all facilities installed inside and outside of the City as of the date of the application that may affect coverage. The data shall specify the date and time of the test, the location in longitude and latitude of each point at which signal strength was recorded, and each signal strength recorded for each frequency at which the carrier provides personal wireless services to its customers.

The signal strength data shall be provided in a separate table for each frequency. Drive test maps shall be submitted depicting the actual Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 8, Packet Page 176 signal strengths recorded during the drive test for each frequency at which the carrier provides personal wireless services to its customers. vix. Provide dropped call records and denial of service records evidencing the number and percentage of calls within which the carrier’s customers were unable to initiate, maintain and conclude the use of the carrier’s personal wireless services without actual loss of service or interruption of service.

Malibu
Non-ROW
Resolution
SECTION 7. Waivers of These Standards.

A. A waiver of one or more of these Standards may be granted in the following circumstances:

1. Pursuant to MMC Section 17.46.060(D), if an applicant demonstrates to the Planning Commission through clear and convincing evidence that denial of an application would, within the meaning of federal law, prohibit or effectively prohibit the provision of personal wireless services, or otherwise violate applicable laws or regulations;

2. If an applicant demonstrates to the Planning Commission through clear and convincing evidence set forth in a feasibility study that compliance with a requirement of these Standards would be technically infeasible and the proposed wireless facility complies with the requirements of these Standards to the greatest extent technically feasible. For example, an exception to a requirement to conceal antennas in a shroud may be granted if shrouding is shown to be technically infeasible and an alternative concealment such as a colored film wrap is proposed; or

3. If an applicant demonstrates to the Planning Commission with clear and convincing evidence that the particular engineering, design or location proposed involves an alternative that better meets the purposes of Chapter

17.46 and only minor non-compliance with a requirement of these design Standards and results in no increase in public visual impact to the community or provides other benefits. For example, an exception to the wireless facility location limitations may be granted when the applicant can demonstrate that the placement is less visible from viewsheds of residences or shielded by vegetation or existing infrastructure (such as barriers), or is less physically intrusive (for example, less impactful to tree roots or reduces noise). Among other factors, in deciding whether or not to grant an exception, the Planning Commission may consider the impact of expansions to the facility that the applicant would be entitled to make as of right if granted.

Petaluma
Ordinance

14.44.310
Telecommunication facilities — Exceptions.

A. Exceptions to the requirements specified within this chapter may be granted through issuance of a conditional use permit by the planning commission.

Such a permit may only be approved if the planning commission finds, after receipt of sufficient evidence, that failure to adhere to the standard under consideration in the specific instance will not increase the visibility of the facility or decrease public safety.

B. An exception to the requirements of Sections 14.44.180 and 14.44.250 may only be granted upon written concurrence by the fire chief.

C. Tower setback requirements may be waived under any of the following circumstances:

Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 9, Packet Page 177

1. The facility is proposed to be co-located onto an existing, legallyestablished telecommunication tower; and

2. Overall, the reduced setback enables further mitigation of adverse visual and other environmental impacts than would otherwise be possible. (Ord. 2029 NCS (part), 1996.)
In conclusion, the City of Monterey’s Ordinance establishes the strictest standard allowed under federal law. In order to locate in a residential neighborhood, the applicant must demonstrate an effective prohibition under the federal law. If the application for a wireless communications facility in a residential district is proposed for the public rights-of-way, it may also be granted if the applicant shows that issuance of a permit is required by state law.

Attachments: 1. Ordinance

2. Malibu Ordinances and Resolutions

3. Petaluma Ordinance
e: All Neighborhood and Business Associations
Wireless Interest List
Former Wireless Subcommittee Members
Verizon
AT&T
Comcast
T-Mobile
Dish Wireless
Qualtek Wireless
Jean Rasch
Nina Beety
Susan Nine
Hans Jannasch
Pat Venza
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, 2/21/2023, Item No. 8., Item Page 10, Packet Page 178

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ORDINANCE NO. xx

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MONTEREY, CALIFORNIA, REPEALING AND REPLACING MONTEREY CITY CODE CHAPTER 38, ARTICLE 17, SECTION 112.4 – WIRELESS COMMUNICATIONS FACILITIES AND FINDING THE SAME

EXEMPT FROM THE CALIFORNIA ENVIRONMENTAL QUALITY ACT
THE COUNCIL OF THE CITY OF MONTEREY DOES ORDAIN, as follows:

SECTION 1:

WHEREAS, the City of Monterey currently regulates the placement, design, construction and modification of wireless communications facilities in the City of Monterey; WHEREAS, these regulations are designed to protect and promote the public’s health, safety, and welfare;
WHEREAS, the City’s aesthetics, unique historic setting, and views benefit residents, attract visitors worldwide, enhance property values, are a catalyst for economic development, and increase the City’s tax base;
WHEREAS, the City finds that wireless communications facilities should not be placed in the rights-of-way at such points or in such manner as to incommode the public use of the same, except as such placement is required under federal law; and because of the impacts on the City and its residents, should not be placed at certain points or in such manner on public or private property unless required by federal law;
WHEREAS, the City has amended its Personal Wireless Facilities Ordinance several times. The most recent amendments include Ordinance 3498 (April 15, 2014), Ordinance 3552 (October 18, 2016, and Ordinance 3586 (October 16, 2018). In addition, the City adopted Ordinance 3609 (February 4, 2020) and added Chapter 32, Article 8, to require (subject to approved deviations and certain exclusions) undergrounding of all new utilities used for communications service, regardless of the type of utility proposing the installation, in all new development and for existing utilities that are part of a redevelopment project; WHEREAS, on August 7, 2018, the City Council appointed a Wireless Subcommittee which met 20 times in 2018, and five times in 2019 until it was dissolved on December 17, 2019; WHEREAS, the Wireless Subcommittee drafted the ordinance and it was edited by staff; WHEREAS, the Planning Commission and City Council find that to avoid unsightly visual clutter that would degrade the visual character of the streets and incommode the public enjoyment and use of the rights-of-way, wireless communications facilities placed in the rightsof-way should be separated from each other and from certain non-commercial properties unless required by federal law;
WHEREAS, the Planning Commission conducted a duly noticed public hearing on August 9, September 13, September 27, 2022 and October 25, 2022, took public testimony, Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 11, Packet Page 179

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2 held a discussion, and voted to recommend City Council adoption of the Zoning Ordinance amendment;
WHEREAS, on January 17, 2023, the City Council received a presentation from outside counsel on the legal framework applicable to wireless facilities and received public comment; WHEREAS, the City of Monterey Planning Office determined the project is exempt from the California Environmental Quality Act (CEQA) Guidelines (Article 19, Section 15305, Class 5) because the project consists of a zoning ordinance amendment to modify existing regulations affecting wireless communication facilities, which would not result in any changes in density or traffic patterns. Additionally, the project is exempt from CEQA pursuant to CEQA Guidelines Section 15308 (Class 8) as an action taken by a regulatory agency to assure the enhancement and protection of the environment, which includes the visual environment of the City.

Furthermore, the project does not qualify for any of the exceptions to the categorical exemptions found at CEQA Guidelines Section 15300.2.

Exception a - Location. Classes 3, 4, 5, 6, and 11 are qualified by consideration of where the project is to be located - a project that is ordinarily insignificant in its impact on the environment may in a particularly sensitive environment be significant. Therefore, these classes are considered to apply in all instances, except where the project may impact an environmental resource of hazardous or critical concern where designated, precisely mapped, and officially adopted pursuant to law by federal, state, or local agencies. The environment is not particularly sensitive because the project is purely a zoning ordinance amendment. Therefore, impacts would not occur. Any subsequent discretionary projects resulting from this action will be assessed for CEQA applicability.

Exception b - Cumulative Impact. All exemptions for these classes are inapplicable when the cumulative impact of successive projects of the same type in the same place, over time is significant. No cumulative impact would occur because the project is purely a zoning ordinance amendment that would regulate the visual appearance of communications structures in the City right-of-way with uniform, objective standards. Therefore, cumulative impacts would not occur.

Any subsequent discretionary projects resulting from this action will be assessed for CEQA applicability.

Exception c - Significant Effect. A categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances. There are no unusual circumstances with this project because the project is purely a zoning ordinance amendment and the land use limitations imposed by the amendment are commonplace under Class 5 and Class 8 categorical exemptions. Therefore, significant impacts would not occur. Any subsequent discretionary projects resulting from this action will be assessed on a project-by-project basis for CEQA applicability.

Exception d - Scenic Highways. A categorical exemption shall not be used for a project which may result in damage to scenic resources, including but not limited to, trees, historic buildings, rock outcroppings, or similar resources, within a highway officially designated as a state scenic highway. This does not apply to improvements which are required as mitigation by an adopted negative declaration or certified Environmental Impact Report (EIR). The project is purely a zoning ordinance amendment, which would not damage scenic resources, but rather, assure Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 12, Packet Page 180

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3 their protection. Any subsequent discretionary projects resulting from this action will be assessed for CEQA applicability.

Exception e - Hazardous Waste Sites. A categorical exemption shall not be used for a project located on a site which is included on any list compiled pursuant to Section 65962.5 of the Government Code. The project is purely a zoning ordinance amendment regulating the visual effect of communications structures. Therefore, impacts to hazardous waste sites would not occur. Any subsequent discretionary projects resulting from this action will be assessed for CEQA applicability.

Exception f - Historical Resources. A categorical exemption shall not be used for a project which may cause a substantial adverse change in the significance of a historical resource. The project is purely a zoning ordinance amendment that would regulate the visual effect of communications structures in the City right-of-way, and not any historic resources. Therefore, impacts to historic resources would not occur. Any subsequent discretionary projects resulting from this action will be assessed for CEQA applicability.

NOW THEREFORE, THE MONTEREY CITY COUNCIL DECLARES, as follows:

SECTION 2: The foregoing recitals are true and correct and are hereby adopted by the City Council.

SECTION 3: CEQA The passage of the ordinance has been assessed in accordance with the authority and criteria contained in the California Environmental Quality Act (CEQA), the State and local CEQA Guidelines, and the environmental regulations of the City. The City, acting as Lead Agency, has determined the Project qualifies as being Categorically Exempt from CEQA Guidelines pursuant to Article 19, Sections 15305 and 15308, Classes 5 and 8.

SECTION 4: Section 38-112.4 is hereby repealed in its entirety and replaced with the following:
38-112.4 Wireless Communications Facilities
A. Purpose.

This section is enacted to reasonably regulate, to the greatest extent permitted under California and federal law, the placement, design, construction, and modification of wireless communications facilities within the City of Monterey. These regulations are designed to protect and promote public’s health, safety, and welfare, including by minimizing adverse aesthetic impacts and protecting persons and property from potential dangers. The City’s aesthetics, unique historic setting, and views benefit residents, attract visitors worldwide, enhance property values, are a catalyst for economic development, and increase the City’s tax base. The City’s economy, as well as the well-being of all who work, visit or live in the City depends in part on maintaining the City’s beauty.

B. Applicability.

1. The provisions in this section shall be applied to all applications for new wireless communications facilities and all applications for changes to existing wireless Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 13, Packet Page 181

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4 communications facilities filed after the effective date of this section, unless the wireless communications facility is exempt from the permitting requirement. For all other applications, the provisions of Section 38-112.4 as it existed before the effective date shall apply.

2. This section is not intended to exempt wireless communications facilities from any applicable laws.

3. This section shall be interpreted and applied in a manner consistent with state and federal law.

4. The time within which any act provided by this Section is to be done has been computed to permit the City to comply with state and federal regulations governing the time for action on applications for wireless communications facilities, and may be extended by the City Manager where an extension will not result in a violation of those state or federal regulations, or otherwise prejudice the public, or shortened by the City Manager when necessary to prevent a violation of applicable law.

C. General Requirements.

1. Every wireless communications facility, whether or not installed pursuant to a use permit, shall:
a. Comply at all times with Federal Communications Commission (“FCC”) standards for radiofrequency (“RF”) emissions currently in effect or as may be amended;
b. Comply with all applicable state, federal and local laws and requirements; and, c. Comply with conditions applicable to encroachments if located in the public rights-of-way.

2. No wireless communications facilities may be installed speculatively.

3. All wireless communications facilities located within an airport safety zone as defined by the Monterey Airport Land Use Compatibility Plan (ALUCP), or an airspace protection zone as defined by the FAA shall comply with applicable criteria in the ALUCP, and FAA standards. No work may proceed on a permit except in compliance with such standards, or without issuance of any required determinations of no hazard to aviation. No work may proceed on a permit where an applicant has failed to provide notices or seek reviews required under applicable requirements. Provided, nothing herein requires compliance with ALUCP standards where such standards have been overruled in accordance with applicable law. Without limiting the foregoing, under the Airport Land Use Compatibility Plan in effect as of April 1, 2022:
a. In Runway Protection Zone 1, all structures are prohibited except facilities set by aeronautical function. No objects may exceed FAR Part 77 height limits as Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 14, Packet Page 182

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5 determined by the FAA. The City shall refer all objects within Zone 1 to the Airport Land Use Commission (ALUC) and FAA.
b. In Inner Airport/Departure Zone 2, Inner Turning Zone 3, and Sideline Safety Zone 5, wireless communication facilities shall comply with the following development conditions: i) Airport disclosure notice shall be provided; ii) Structures shall be located the maximum distance from extended runway centerline; and iii) The City shall refer objects greater than 35’ tall to the ALUC and FAA.
c. In Outer Approach/Departure Zone 4 and Airport Property Zone 6, wireless communication facilities shall comply with the following development conditions:
i) Airport disclosure notice shall be provided; ii) The City shall refer objects greater than 70’ tall to the ALUC and FAA.
d. In Airport Influence Area Zone 7, wireless communication facilities shall comply with the following development conditions: i) Airport disclosure notice shall be provided; ii) The City shall refer objects greater than 100’ tall to the ALUC and FAA; iii) New structures are prohibited on existing terrain that penetrates 14 CFR Part 77 surfaces; and iv) New structures require additional airspace analysis and FAA Form 7560 within the 50-foot terrain penetration buffer. e. All structures that could penetrate 14 CFR Part 77 elevations shall file Form 7460 with the FAA.

D. Planning Applications and Approvals Required

1. Use Permit Review. All new wireless communications facilities and all modifications to existing wireless communications facilities require a use permit issued pursuant to Section 38-156 et seq., except those subject to administrative review under this section.

The use permit for placement in the public rights-of-way, if granted, shall be deemed to constitute the encroachment permit required by Monterey City Code Chapter 32, Article

8. The application for a use permit shall satisfy all the requirements for an encroachment permit, and without limitation any use permit issued shall be subject to all conditions set forth in, and regulations adopted pursuant to, that Chapter.

2. Administrative Review for Temporary Wireless Communication Facilities: A use permit may be issued for a temporary wireless communications facility by the Community Development Director under this section.
a. Application. An application for a temporary wireless communications facility shall provide a detailed description of the facility including: how it will be anchored or otherwise supported; where it will be placed; how it will be designed, secured, and marked to protect against harm to persons or property; the purpose of the placement; the duration it will be in place; a certification by a California licensed structural engineer that the installation will be structurally safe; and the information required by Sections 38-112.4 (E)(3)(a),(b), (q) and (r).

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6 b. Approval. Administrative approval shall be granted if:
i. The facility meets the definition of a temporary wireless communications facility;
ii. The proposed facility will be placed and protected to prevent hazards to persons and property, and so as not to unreasonably interfere with pedestrian or vehicular traffic or disrupt the use and enjoyment of adjoining properties;
iii. There is an appropriate plan for removal of the facility and restoration of property affected by it; and
iv. Except in the case of an emergency, the temporary wireless communications facility is not proposed for a residential zoning district (i.e., R-E, R-1, R-2, R-3 and any PC Zone not governed by a Specific Plan).
c. Conditions. Each permit for a temporary wireless communications facility shall be granted for the shortest period of time it will take to achieve the purposes for which it was installed. The permittee’s period for removal and restoration shall be based upon the work required to remove the facility and restore affected property, and shall not exceed ten (10) days except for good cause shown as determined by the Director. Any facility that is not removed from private property by the date specified in the permit is hereby declared a public nuisance, which may be remedied pursuant to Monterey City Code Chapter 22, Article 4 and any other remedy allowed by law. Any facility that is not removed from City property by the date specified in the permit may be removed by the City and the City may restore affected property and charge the permittee the costs thereof. d. Emergency Installation. A permit shall be obtained before a facility is installed except: (1) in the case of an emergency declared by federal, state, regional, or local officials; (2) when it is necessary to install a facility to immediately address an unanticipated service outage; or (3) when immediate action by a person or agency performing a public service is required to protect life or property in response to an emergency. In such cases, an application shall be submitted within five business days after the date of installation. The time for filing may be extended by the Director as needed based on the circumstances giving rise to the need for the temporary placement. If an application is not timely filed, or is denied, in addition to being subject to any other remedy available at law or equity, the temporary wireless communications facility will constitute a public nuisance, which on private property may be remedied pursuant to Monterey City Code Chapter 22, Article 4. Without limiting the foregoing, if the temporary wireless facility is on public property, and a timely application is not filed, or is denied, the facility shall be removed within twenty-four (24) hours of failure to timely file, or the denial, as applicable, unless the Director specifies a later, alternative time for removal and restoration. If the facility is not removed and Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 16, Packet Page 184

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7 property restored as required, the City may remove the facility, and restore the property, and charge for costs associated with the same.

E. Applications and Submittals

1. This section establishes minimum application requirements for wireless communications facilities other than eligible facilities requests, for which applications shall be submitted and reviewed as provided in Section 38-112.4(G).

2. Application Required. Each application for a permit under this section shall be submitted on a form prescribed by the Director, in an electronic searchable format, and accompanied by a fee in the amount set by resolution. The Director may amend the submittal form and requirements as the Director deems appropriate to achieve the purposes of this section.

3. Application Content. Each application shall be signed by the owner of the wireless communications facility. If the applicant is not a provider of wireless services, it shall provide a letter from each wireless service provider that will use the facility affirming: it will use the facility proposed, if approved; that it will make available such information as the City may require to act upon the application, either directly or through applicant; and will ensure that any representations made to the City regarding the services it will provide, or equipment it will use, are true, accurate, and complete. Each application shall include at least the following:
a. Written Authorizations. A written authorization signed by the owner(s) of the property and supporting structure consenting to the placement of the wireless communications facility as proposed. An authorization is not required as part of the application for placement on City-owned or controlled property, but appropriate consents and contracts shall be obtained before a permit may issue. b. Licenses. Evidence that the applicant and operator hold all current licenses and registrations from the FCC and California Secretary of State where such license(s) or registration(s) are necessary to provide wireless services using the proposed wireless communications facility.
c. Notice and Proof of Service of Notice. Applicant shall mail notice of the application to all persons entitled to notice under Section 38-159. In addition to providing the information required by Section 38-159(D), the notice shall provide a brief description of the wireless communications facility and its location; identify what entities will own or operate any part of the wireless communications facility; state that the application may be reviewed online as posted by the Planning Department; and state that comments may be submitted to the Planning Department. The notice shall be mailed by the applicant on the day the application is filed and a proof of service on a form provided by the City shall be provided with the application.

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8 d. Effect of Deadlines. To the extent that filing of the wireless application would establish a deadline for action on any other permit, agreement, or other authorization that may be required in connection with the wireless communications facility, the application shall include complete copies of applications for every such required permit, including without limitation, electrical permits, building permits, traffic control permits, and excavation permits, with all engineering completed, and with all fees associated with each permit. Provided, such additional applications are not required if applicant agrees, in the application for the wireless communication facility, that any such deadline will not begin to run until a separate and complete application for those permits is submitted.
e. Project Description Letter. A full written description of the proposed facility and the work that will be required to install or modify it, which description shall include whether:
i. the facility will be on a new, existing, or replacement supporting structure; ii. excavation work will be required and where it will occur; iii. foundational work will be required; and
iv. if the application is for a modification to an existing wireless communications facility, or a support structure, the application shall identify whether the existing wireless facility or support structure was installed pursuant to a permit and if so provide the original permit and any permit modifications; describe any camouflage and concealment elements, and describe how the modifications to the facility or proposed support structure will maintain the concealment elements, and how it will preserve other requirements intended to camouflage or otherwise limit the visual impacts of a wireless communications facility, or support structure; and state whether the existing wireless communications facility or support structure is currently in compliance with such original permit and any permit modifications.
f. Equipment Specifications. Specifications that show the dimensions (height, width, depth, and cubic feet) for all components of the proposed wireless communications facility and the support structure, and the weight of all components of the wireless communications facility and any replacement or new support structure. If the wireless communications facility will be placed on an existing or replacement support structure, the specifications shall include:
i. a clear description of all components of the existing support structure, and how it is anchored/supported;
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9 ii. a clear description of all attachments to the existing support structure and their dimensions; and
iii. a description of changes that will be made in connection with an attachment to, or replacement of, the existing structure, including but not limited to, steps that may be taken to strengthen or secure the supporting structure.
g. Lease Area. If the wireless communication facility will be installed pursuant to a lease or license, a plan depicting the leased or licensed area in relationship to the proposed facility.
h. Plot Plan. A plot plan of the lot, premises, or parcel of land showing the exact location of the proposed wireless facility (including all related equipment and cables), exact location and dimensions of all buildings, parking lots, walkways, property lines pertaining to the area leased or otherwise dedicated to the use of the wireless communications facility. For freestanding facilities, the plans shall indicate surrounding grade, structures, and landscaping from all sides. If new ground mounted equipment or structures (retaining walls, etc.) are proposed in the public right-of-way, a site survey with topography lines shown in 1’ intervals be submitted. The survey should show all improvements in the public right of way within 10’ of the proposed area of disturbance.
i. Licensed Site Survey. If the project involves new ground mounted equipment, grading or fill, a site survey is required.
j. Elevations and Roof Plan. Building elevations and roof plan including exact location and dimensions of equipment proposed. For freestanding facilities, the plans shall indicate surrounding grades, structures, and landscaping from all sides.
k. Screening. Proposed landscaping and maintenance plan for the life of the facility and/or non-vegetative screening (including required safety fencing) plan for all aspects of the facility.
l. Manufacturer’s Updated Specification. Manufacturer’s specifications, including installation and maintenance specifications, exact location of cables, wiring, materials, color, and any support devices that may be required. m. Photographs and Photo Simulations. Accurate color photographs and photo simulations that show the proposed facility both close up at street level and in context of the site from reasonable line-of-sight locations from public streets or other viewpoints which would reasonably be expected to sustain the most significant adverse aesthetic impacts due to such factors as proximity to the site or their elevation relative to the site, together with a map that shows the photo location of each view angle.

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10 n. Hazard Compliance Certification. For placement of wireless communications facilities on utility poles, street light poles, or towers in the public rights-of-way, as part of the safety certification required by Section 38-112.4(E)(3)(o):
i. If the application is for a wireless communications facility in a “High Hazard Zone” (“HHZ”) (as demarcated on the current version of the California Public Utility Commission Fire-Threat Map), and is to be placed on a supporting structure that applicant contends is or will be under the jurisdiction of General Order (“GO”) 95 (“GO 95”), or GO 165, or GO 166, the applicant shall submit documentation showing the HHZ where the wireless communications facility will be located and whether all required Fire Prevention Plans are in place. Applicant shall also submit documentation showing whether the supporting structure has been inspected and when; the results of the inspection (if any), and proof that the structure, any existing facilities, and planned structures and facilities will comply with standards for placement on structures in a HHZ. If existing or proposed structures or facilities are or will be non-compliant in any respect, the application shall identify what applicant will do to ensure the structure and existing and proposed facilities are compliant. ii. If the application is for a wireless communications facility in a HHZ on a supporting structure or tower that applicant contends is not under the jurisdiction of GO 95, GO 165, and GO 166, the applicant shall submit documentation showing:
a) The specific HHZ in which the wireless communications facilities will be located, as demarcated on the current version of the California Public Utility Commission Fire-Threat Map;
b) A description of the steps the applicant has taken to reduce hazards to public safety, including fire safety hazards, that may be caused by the proposed wireless communications facility or any supporting structure; and
c) What applicant will do to inspect and maintain the safety of the wireless communications facility, or any supporting structure which steps shall be at least as rigorous as if GO 95, GO 165, and GO 166 applied.
d) The documentation shall be supported by sworn statements from qualified and California licensed engineers attesting that the wireless communications facility and any supporting structure as installed will comply with applicable law, and be as safe as facilities and structures which are subject to the General Orders.

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11 o. Safety Certification. Applicant shall submit structural analyses prepared by a licensed or registered California engineer or engineers qualified to attest to the facts showing that the portions of the wireless communications facility placed on or within the tower or supporting structures will be safely supported by the tower, or supporting structure, and also showing that all components of the structure and the wireless communication facility comply with applicable safety standards. p. Noise study. A noise study certified by an acoustical engineer licensed by the State of California for the proposed facility and all associated equipment including environmental control units, sump pumps, temporary backup power generators, and permanent backup power generators, demonstrating that the facility will comply with the city’s noise regulations when fully operational. For example, if a wireless communications facility is planned to include multiple cooling units, the noise study will be performed assuming that all the units will be in place and operational. The noise study shall also include an analysis of the manufacturers’ specifications for all noise-emitting equipment and a depiction of the proposed equipment relative to all adjacent property lines. A study is not required if the proposed facility does not contain equipment that generates noise. q. Radio/antenna detail. Information regarding the radio units that are proposed to be installed at the site, including the manufacturer’s name and specifications, and the actual frequencies and power levels (in watts effective radio power [ERP]) for the proposed wireless communications facility and for any existing wireless communications facility that shall be considered in determining compliance with FCC RF standards.
r. Radio Frequency (RF) Compliance Report. Applicant shall submit a RF exposure compliance report prepared by a licensed RF engineer. The report shall include a certification by the engineer that the facility complies with FCC RF standards, be prepared in accordance with FCC guidelines, and include the calculations and information on which the engineer relied. The report shall clearly identify any areas where exposure would exceed occupational or general FCC exposure limits, vertically and horizontally, and shall include drawings that show those areas in relation to the proposed structure, adjoining buildings, and property lines. The report shall clearly identify any measures that shall be taken to ensure compliance with FCC rules. The report’s analysis will be based on a “worst case” scenario, and assuming all antennas are operating at maximum output. The report shall be signed by the licensed RF engineer and include a certification, under penalty of perjury, that the content thereof is true and correct. s. Underground vault and venting plans, if any element of the wireless communications facility will be placed underground. The underground vault and venting plans shall include manufacturer’s specifications for cover, color, materials, dimensions, and reveal at the sidewalk, and evidence that all enclosures will comply with California Public Utilities Code standards for underground utility enclosures.

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12 t. Master Plan. A master plan which identifies the location of the proposed facility in relation to all existing wireless communications facilities used by the wireless service providers that will use the facility; and if the facility proposed is part of a planned network, the approximate location of other planned facilities. u. For any wireless communications facility located within the Monterey Regional Airport Influence Area (AIA), the applicant shall provide written evidence to the City demonstrating the following: 1) applicant submittal to the FAA of the FAA Form 7460-1 (Notice of Proposed Construction or Alteration) or other equivalent FAA form notifying the FAA of the proposed construction or alteration of any wireless communications facility in the AIA that has the potential to obstruct or pose a hazard to air navigation, navigational aids, or navigational facilities, or has the potential to interfere with any aircraft flight components affecting air safety, except for minor alterations that do not have this potential; 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.
v. If applicant contends that denial of the application would result in an effective prohibition under federal law, or otherwise violate federal law such that the application shall be approved, it shall provide all facts that it relies upon and clear and convincing evidence for that claim. Where the applicant is not a wireless service provider, the information shall be provided for the affected wireless service providers. Applicants who claim that denial would be a “prohibition” or “effective prohibition” are encouraged to address at least the following:
i. If it is contended that compliance with an aesthetic standard is not reasonable, explain why in detail, and describe alternatives considered in determining whether service objectives for the wireless service provider could be reasonably satisfied by other means.
ii. What existing or planned personal wireless services the affected wireless service provider would be effectively prohibited from providing if the application is denied.
iii. The factual basis for any claim that denial will substantially impair a wireless service provider’s ability to provide a personal wireless service, and the information relied upon in support of that claim. iv. The factual basis for any claim that denial would result in a prohibition or effective prohibition under applicable precedent in the United States Court of Appeals for the Ninth Circuit, and the information relied upon in support of that claim.

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13 v. Current signal coverage, by providing maps showing existing coverage in the area to be serviced by the proposed facilities (including areas outside the City, if applicable). In order to be treated as probative, maps shall be dated, and based on data collected within the prior six months or less, to reflect all facilities installed inside and outside of the City as of the date of the application that may affect coverage.
vi. The exact geographic area that would be served by the proposed facility, using coverage maps that describe the distances between the proposed and existing sites that show how the proposed service area fits into and is necessary to each affected wireless service provider’s provision of personal wireless services given existing facilities, and planned or pending modifications or additions to those facilities that that may affect the provision of services.
vii. Alternatives considered within and outside the City prior to the submission of the application, including but not limited to alternatives that take advantage of software capabilities or reconfiguration of existing sites; the reason the alternative chosen was selected, and the reason other alternatives were not selected with supporting evidence; and why applicant contends existing sites could not be used to provide service. viii. Provide results of drive tests within the specific geographic areas where an effective prohibition is being claimed. In order to be treated as probative, maps shall be dated, and based on data collected within the prior six months or less, to reflect all facilities installed inside and outside of the City as of the date of the application that may affect coverage.

The data shall specify the date and time of the test, the location in longitude and latitude of each point at which signal strength was recorded, and each signal strength recorded for each frequency at which the carrier provides personal wireless services to its customers. The signal strength data shall be provided in a separate table for each frequency. Drive test maps shall be submitted depicting the actual signal strengths recorded during the drive test for each frequency at which the carrier provides personal wireless services to its customers. ix. Provide dropped call records and denial of service records evidencing the number and percentage of calls within which the carrier’s customers were unable to initiate, maintain and conclude the use of the carrier’s personal wireless services without actual loss of service or interruption of service.

4. Presubmittal Conference. Before application submittal, applicants are strongly encouraged to schedule and attend a voluntary presubmittal conference with City staff for all wireless communications facilities applications. The presubmittal conference is intended to foster cooperative discussion between applicants and staff, identify potential avoidable issues, and generally streamline the application review process to occur after the applicant formally submits its application. Requests for voluntary presubmittal Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 23, Packet Page 191

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14 conferences will not be scheduled until the city receives payment of the associated fee in the amount set by City Council resolution.

5. Application Submittal Appointment. All applications for wireless communications facilities use permits shall be submitted to the City at a prescheduled appointment with the Director. During the application submittal appointment, or thereafter, the Director shall review the application materials and determine whether the application is complete. If the application is found to be complete, the Director will refer the application to the Planning Commission. If the application is not complete, the Director shall issue a written notice of incompleteness specifying the information missing from the application.

6. Applications Available Online. Except where good cause has been shown, as determined by the Director, applications will be posted on the City website within five working days of filing or as soon thereafter as practical, along with communications between the City and the applicant regarding those filings (including additions and modifications to the filing). The City shall post notice promptly when the application is deemed “complete.” The City’s failure to post the applications by the time required shall not affect the validity of any application submitted under this section.

7. Notice of Applications Within Monterey Regional Airport Influence Area. For any wireless communication facility located within the Monterey Regional Airport Influence Area, the City shall, upon deeming such application “complete”, provide written notice of the application to the staff of the Monterey County Airport Land Use Commission and the Monterey Regional Airport District.

F. Location, Design and Development Standards

1. This section establishes design and development standards for wireless communications facilities and supporting structures, other than wireless communications facilities and supporting structures modified as part of an eligible facilities request. The Planning Commission may develop and approve, for mandatory use, neighborhood specific design standards that are consistent with this section.

2. Overall Goals. It is the overall goal of the City to minimize the visual impact of wireless facilities; to minimize the number and height of supporting structures that may intrude upon view sheds; to maintain the overall visual character of individual neighborhoods, to encourage placement away from residential units; to minimize the number of structures in the public rights-of-way and prevent interference with the other uses of the public rights-of-way.

3. General Principle for All Locations. The proposed wireless communications facility, and any supporting structure (to the extent installation requires installation of a new or replacement supporting structure, or any change in the height of an existing supporting structure) shall be of the minimum size necessary to serve the defined service objectives of the wireless service provider(s) that will be using the facility.

Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 24, Packet Page 192

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15 a. Exception. Section 38-112.4(F)(3) does not apply when a larger facility is consistent with a stealth design approved by the City, or appropriate as part of the incorporation of a wireless communications facility into a structure such as a street light, where the facility shall mimic the height of existing street lights.

4. Design Standards for Facilities Off the Public Rights-of-Way - General Design and Aesthetic Standards. All new facilities and changes to existing facilities shall conform to the standards in this section.
a. Concealment. Wireless communications facilities shall incorporate concealment elements sufficient to render the facility stealth, as appropriate for the proposed location and design, or otherwise incorporate elements that will camouflage or limit the visual impacts of a wireless communications facility as well or better than a stealth facility. All facilities shall be designed to visually blend into the surrounding area and shall be compatible with the character of the area in which they are located, as described in the General Plan and provisions governing development of particular areas.
b. Height. Wireless communications facilities, and any supporting structure shall not exceed the applicable height limit for structures in the applicable zoning district. c. Setbacks. Wireless communications facilities may not encroach into any applicable setback for structures in the applicable zoning district. d. Future Collocations. Applicants shall design wireless communications facilities to accommodate future collocated facilities to the extent feasible, and to the extent consistent with the other provisions of this Code.
e. Noise. A wireless communications facility shall comply with the noise standards in the City Code. Applicant may be required to install noise attenuating or baffling materials and/or other measures, including but not limited to walls or landscape features, as the City deemed necessary or appropriate to ensure compliance with noise limits.
f. Lights. Unless otherwise required under FAA or FCC regulations, applicants may install only timed or motion-sensitive light controllers and lights, and shall install such lights so as to avoid illumination impacts to adjacent properties to the maximum extent feasible. The City may, in its discretion, exempt an applicant from the foregoing requirement when the applicant demonstrates a substantial public safety need, or applicant shows that the light’s effect is negligible. All aircraft warning lighting shall use lighting enclosures that avoid illumination impacts to properties in the City to the maximum extent feasible. This section does not apply to designs that are intended to mimic or to be incorporated within lighting structures on the property where the facility will be located. g. Signs. No wireless communications facility may display any signage or advertisements unless expressly allowed by the City in a written approval, recommended under FCC regulations, or required by law or permit condition.

Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 25, Packet Page 193

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16 Every facility shall at all times display signage that accurately identifies the facility owner, provides the facility owner’s unique site number, and a local or toll-free telephone number to contact the facility owner’s operations center. “Signage” does not include approved banners or directional signage used to conceal a or camouflage a wireless communications facility.
h. Fencing or Enclosures. Any fencing or enclosures proposed in connection with a wireless communications facility shall blend with the natural and/or manmade surroundings. Additional landscape features may be required to screen fences.

Barbed wire, razor ribbon, electrified fences and similar measures for securing a wireless communications facility are not permitted.
i. Landscaping. Landscaping may be required to visually screen facilities from adjacent properties or public view or to provide a backdrop to conceal the facilities. All proposed landscaping is subject to architectural review approval by the Director, unless the Director refers the landscaping plan to the Architectural Review Committee. Landscaping may be required for the purposes that include, but are not limited to, the following:
i. To preserve existing on-site and associated access way vegetation and trees to the extent feasible at all times before, during and after construction.
ii. To minimize disturbance of the existing topography. iii. To provide screening of wireless communications facilities and access roads appurtenant to the wireless communications facility which screening may require planting of additional trees and other vegetation around the facility, and along access roads.
j. Applicants shall use flat rate electric metering, if available, so that no meter is required. If a ground-mounted or pole-mounted meter is used, applicant will provide information as to available form factors and show how those can be incorporated into the design to minimize visual impacts and, where possible, make the meter stealth.
k. Ground-Mounted Equipment. Where above-ground, ground-mounted facilities are permitted, in locations visible or accessible to the public, applicants shall conceal outdoor ground-mounted equipment, with opaque fences or landscape features that mimic the adjacent structure(s) (including, but not limited to, dumpster corrals and other accessory structures).

5. Building-Mounted Facilities. These requirements are in addition to design standards in Section 38-112.4(F)(4)(a)-(g) and (k).
a. General Design Preferences. Building-mounted wireless communications facilities shall be one of the following, in this order of preference; provided that Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 26, Packet Page 194

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17 any change to any building within the National Historic Landmark Districts, local historic district (H-D) or any change to individually zoned historic property (H-1 and H-2) shall be fully consistent with design requirements and limitations on modifications to historic properties and buildings.
i. The wireless communications facilities shall be completely concealed and architecturally integrated into the facade or rooftop-mounted base stations with no visible impacts (including shadowing) from any publicly accessible areas at ground level (examples include, but are not limited to, antennas behind existing parapet walls or facades replaced with RF-transparent material and finished to mimic the replaced materials, provided such replacement is consistent with the historic preservation of a structure); then
ii. Wireless communications facilities may be completely concealed new structures or appurtenances designed to mimic the support structure’s original architecture and proportions (examples include, but are not limited to, cupolas, steeples, chimneys and water tanks), subject to height limits applicable to the area where the facility is located, and subject to standards that apply for similar modifications that do not involve wireless communications facilities.
b. Rooftop-Mounted Equipment. Consistent with Section 112.4(F)(5), and subject to Section 38-112.4(F)(5)(a)(i), and subject to Section 112.4(F)(4)(a), the City will not approve unscreened rooftop wireless communications facilities if the applicant has the right to increase the facility height so that the equipment would become visible to public view from ground level on adjoining properties or from the public rights-of-way, unless the applicant shows that because of the design proposed, or the location, approval of the design will be no more intrusive and consistent with the goals of this section.
c. Facade-Mounted Equipment. Applicants shall conceal all facade-mounted transmission equipment behind screen walls as flush to the facade as practicable. The City may not approve any “pop-out” screen boxes unless such design is architecturally consistent with the original support structure. The City may not approve any exposed facade-mounted antennas, which includes exposed antennas painted to match the façade, unless the applicant shows that because of the design proposed, or the location, approval of the design will be no more intrusive and consistent with the goals of this section.

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 Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 27, Packet Page 195

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18 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
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.

Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 28, Packet Page 196

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19 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:
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 Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 29, Packet Page 197

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20 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 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 Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 30, Packet Page 198

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21 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 polemounted equipment in the same portion of the public right-of-way. 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 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 Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 31, Packet Page 199

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22 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.
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 Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 32, Packet Page 200

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23 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 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 Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 33, Packet Page 201

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24 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 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 Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 34, Packet Page 202

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25 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 public 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.
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.

Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 35, Packet Page 203

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26 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 requirement: no proposed wireless communications facility shall be placed in the public right-of-way within 250 feet in any direction from 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)-(s) and (u-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 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:

Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 36, Packet Page 204

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27 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.

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 Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 37, Packet Page 205

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28 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 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 Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 38, Packet Page 206

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29 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.

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 Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 39, Packet Page 207

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30 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, 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:

Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 40, Packet Page 208

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31 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.

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 Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 41, Packet Page 209

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32 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 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 38-112.4(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 preapproval 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 preCouncil Regular Meeting, 2/21/2023, Item No. 8., Item Page 42, Packet Page 210

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33 approval 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 38-112.4(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. “Base station” has the same meaning as the term used in 47 CFR Section 1.6100(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.

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34 “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 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.

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35 “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. “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:

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36 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.
“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 _____ Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 46, Packet Page 214

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37 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, 2/21/2023, Item No. 8., Item Page 47, Packet Page 215 2/14/23, 4:00 PM Chapter 12.02 WIRELESS FACILITIES IN PUBLIC RIGHTS-OF-WAY https://library.qcode.us/lib/malibu_ca/pub/municipal_code/item/title_12-chapter_12_02?view=all 1/10 Malibu, California Municipal Code
Title 12 STREETS, SIDEWALKS AND PUBLIC PLACES
Chapter 12.02 WIRELESS FACILITIES IN PUBLIC RIGHTS-OF-WAY

12.02.010 Purpose.

12.02.020 Definitions.

12.02.030 Scope.

12.02.040 Administration.

12.02.050 General standards for wireless facilities in the public rights-of-way.

12.02.060 Applications.

12.02.070 Findings—Decisions—Consultants.

12.02.080 Conditions of approval—Generally.

12.02.090 Breach—Termination of permit.

12.02.100 Nondiscrimination.

12.02.010 Purpose.

The purpose of this chapter is to establish a process for managing, and uniform standards for acting upon, requests for the placement of wireless facilities within the public rights-of-way of the city consistent with the city’s obligation to promote the public health, safety, and welfare, to manage the public rights-ofway, and to ensure that the public is not incommoded by the use of the public rights-of-way for the placement of wireless facilities. The city recognizes the role of personal wireless facilities to provide personal wireless service to the residents and businesses within the city. No provision of this chapter shall be interpreted in a manner that violates state or federal law. (Ord. 477 § 2, 2021; Ord. 477U § 2, 2020)

12.02.020 Definitions.

The abbreviations, phrases, terms and words used in this chapter will have the following meanings assigned to them unless context indicates otherwise. Undefined phrases, terms or words in this policy will have their ordinary meanings.

Attachment 2
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 48, Packet Page 216 2/14/23, 4:00 PM Chapter 12.02 WIRELESS FACILITIES IN PUBLIC RIGHTS-OF-WAY https://library.qcode.us/lib/malibu_ca/pub/municipal_code/item/title_12-chapter_12_02?view=all 2/10 The definitions in this policy shall control over conflicting definitions for the same or similar abbreviations, phrases, terms or words as may be defined in the Malibu Municipal Code Chapter 17.02 and Section 17.46.040.
“Applicant” means a person filing an application for placement or modification of a wireless facility in the public right-of-way.
“Application” means a formal request, including all required and requested documentation and information, submitted by an applicant to the city for a wireless ROW permit. “Eligible facilities request” or “EFR” has the meaning as set forth in 47 C.F.R. Section 1.6100(b)(3), or any successor provision.
“FCC” means the Federal Communications Commission or its lawful successor. “Municipal infrastructure” means city-owned or controlled property structures, objects, and equipment in the ROW, including, but not limited to, street lights, traffic control structures, banners, street furniture, bus stops, billboards, or other poles, lighting fixtures, or electroliers located within the ROW. “Permittee” means any person or entity granted a wireless ROW permit pursuant to this chapter. “Personal wireless services” has the same meaning as set forth in 47 U.S.C. Section 332(c)(7)(C) (i).
“Personal wireless services facility” means a wireless facility used for the provision of personal wireless services.
“Professional engineer (PE)” is as defined by Business and Professions Code Section 6701, and shall be interpreted to refer to the specific appropriate engineering branch in issue as defined in Sections 6702 through 6703 and “supervision of the construction of engineering structures” as defined in Section 6703.1.
“Public right-of-way” or “ROW” means any public street, public way or public place within the city limits, either owned by the city or dedicated to the public for the purpose of travel and which the city has the responsibility to maintain or manage.

The term includes all or any part of the entire width of right-of-way, and above and below the same, whether or not such entire area is actually used for travel purposes. “Small cell facility” has the same meaning as “small wireless facility” in 47 C.F.R. 1.6002(l), or any successor provision (which is a personal wireless services facility that meets the following conditions that, solely for convenience, have been set forth below):

1. The facility:
a. Is mounted on a structure fifty (50) feet or less in height, including antennas, as defined in 47 C.F.R. Section 1.1320(d), or
Attachment 2
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 49, Packet Page 217 2/14/23, 4:00 PM Chapter 12.02 WIRELESS FACILITIES IN PUBLIC RIGHTS-OF-WAY https://library.qcode.us/lib/malibu_ca/pub/municipal_code/item/title_12-chapter_12_02?view=all 3/10 b Is mounted on a structure no more than ten (10) percent taller than other adjacent structures, or
c. Does not extend an existing structure on which it are located to a height of more than fifty (50) feet or by more than ten (10) percent, whichever is greater;

2. Each antenna associated with the deployment, excluding associated antenna equipment (as defined in the definition of antenna in 47 C.F.R. Section 1.1320(d)), is no more than three cubic feet in volume;

3. All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than twenty-eight (28) cubic feet in volume;

4. The facility does not require antenna structure registration under 47 C.F.R. Part 17;

5. The facility is not located on Tribal lands, as defined under 36 C.F.R. Section 800.16(x); and

6. The facility does not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in 47 C.F.R. Section 1.1307(b). “Support structure” means any structure capable of supporting a base station. “Underground areas” means those areas where there are no electrical facilities or facilities of a local exchange carrier in the right-of-way; or where the wires associated with the same are or are required to be located underground; or where the same are scheduled to be converted from overhead to underground. Electrical facilities are distribution facilities owned by an electric utility and do not include transmission facilities used or intended to be used to transmit electricity at nominal voltages in excess of thirty-five thousand (35,000) volts.
“Utility pole” means a structure in the ROW designed to support electric, telephone and similar utility lines. For the avoidance of doubt, any structure built for the sole or primary purpose of supporting any FCC-licensed or authorized antennas and their associated facilities is not a utility pole. “Wireless facility” or “facility” means the transmitters, antenna structures and other types of installations used for the provision of wireless services at a fixed location, including, without limitation, any associated tower(s), support structure(s), and base station(s). “Wireless infrastructure provider” means a person that owns, controls, operates or manages a wireless facility or portion thereof within the ROW.
“Wireless regulations” means those regulations adopted pursuant to Section 12.02.050 and implementing the provisions of this chapter.
“Wireless ROW permit” or “WRP” means a permit issued pursuant to this chapter authorizing the placement or modification of a wireless facility of a design specified in the permit at a particular location within the ROW; and the modification of any existing support structure to which the wireless facility is proposed to be attached.

Attachment 2
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 50, Packet Page 218 2/14/23, 4:00 PM Chapter 12.02 WIRELESS FACILITIES IN PUBLIC RIGHTS-OF-WAY https://library.qcode.us/lib/malibu_ca/pub/municipal_code/item/title_12-chapter_12_02?view=all 4/10 “Wireless service provider” means an entity that provides personal wireless services to end users. (Ord. 477 § 2, 2021; Ord. 477U § 2, 2020)

12.02.030 Scope.

A. In General. There shall be a type of permit entitled a “wireless ROW permit (WRP),” which shall be subject to all of the requirements of this chapter. Unless exempted, every person who desires to place a wireless facility in the public rights-of-way or modify an existing wireless facility in the public rights-ofway must obtain a wireless ROW permit authorizing the placement or modification in accordance with this chapter. Except for small cell facilities, facilities qualifying as eligible facilities requests, or any other type of wireless facility expressly allowed in the public right-of-way by state or federal law, no other wireless facilities shall be permitted pursuant to this chapter.

B. Exemptions. This chapter does not apply to:

1. The placement or modification of facilities by the city or by any other agency of the state solely for public safety purposes.

2. Installation of a “cell on wheels,” “cell on truck” or a similar structure for a temporary period in connection with an emergency or event, but no longer than required for the emergency or event, provided that installation does not involve excavation, movement, or removal of existing functional facilities.

C. Other Applicable Requirements. In addition to the WRP required herein, the placement and operation of a wireless facility in the public rights-of-way requires the persons who will own or control those facilities to obtain all permits required by Chapter 12.04 (Highway Permits) and other applicable law, and to comply with applicable law, including, but not limited to, applicable law governing radio frequency (RF) emissions and the Americans with Disabilities Act (ADA) and electrical and fire codes. If an applicant meets the requirements of this chapter and obtains a wireless ROW permit, then the applicant does not need to obtain a site plan review permit or conditional use permit pursuant to Malibu Municipal Code Sections 17.46.020 and 17.46.030.

D. Pre-Existing Facilities in the ROW. Any permitted wireless facility already existing in the ROW as of the date of this chapter’s adoption shall remain subject to the standards and conditions of the city code in effect prior to this chapter, unless and until a renewal of such facility’s then-existing permit is granted, at which time the provisions of this chapter shall apply in full force going forward as to such facility. The review of any request for a renewal of a permit for such pre-existing facilities shall be conducted pursuant to this chapter, rather than the portion(s) of the city code under which it was previously reviewed.

E. Public Use. Except as otherwise provided by California law, any use of the public right-of-way authorized pursuant to this chapter will be subordinate to the city’s use and use by the public. (Ord. 477 § 2, 2021; Ord. 477U § 2, 2020)

12.02.040 Administration.

Attachment 2
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 51, Packet Page 219 2/14/23, 4:00 PM Chapter 12.02 WIRELESS FACILITIES IN PUBLIC RIGHTS-OF-WAY https://library.qcode.us/lib/malibu_ca/pub/municipal_code/item/title_12-chapter_12_02?view=all 5/10 A. Reviewing Authority. The planning director or designee (“director”) is responsible for administering this chapter. As part of the administration of this chapter, the director is responsible for the following:

1. Implement standards governing the placement and modification of wireless facilities consistent with the requirements of this chapter, including regulations governing collocation and resolution of conflicting applications for placement of wireless facilities;

2. Implement acceptable engineering design and development standards for wireless facilities in the public rights-of-way, taking into account the zoning districts adjacent to the public rights-of-way;

3. Develop forms and procedures for submission of applications for placement or modification of wireless facilities, and proposed changes to any support structure consistent with this chapter;

4. Collect, as a condition of the completeness of any application, any fee established by this chapter;

5. Establish deadlines for submission of information related to an application, and extend or shorten deadlines where appropriate and consistent with state and federal laws and regulations;

6. Issue any notices of incompleteness, requests for information, or conduct or commission such studies as may be required to determine whether a permit should be issued;

7. Require, as part of, and as a condition of completeness of any application, timely notice to members of the public that may be affected by the placement or modification of the wireless facility and proposed changes to any support structure;

8. Subject to appeal as provided herein, determine whether to approve, approve subject to conditions, or deny an application; and

9. Take such other steps as may be required to timely act upon applications for placement of wireless facilities, including issuing written decisions and entering into agreements to mutually extend the time for action on an application.

B. Appeals.

1. Any person adversely affected by a decision of the director pursuant to this chapter may request an administrative hearing to appeal the director’s decision. In order to request a hearing, the person shall submit to the city clerk in the manner directed in the director’s decision notice a fully completed request for administrative hearing form along with a full amount of the appeal fee (by way of check or money order). The request for administrative hearing shall be incomplete if it does not include the deposit in the full amount of the appeal fee. The deposit will be retained in a noninterest bearing account until the matter is resolved. The appeal fee shall be refunded to the appellant if their appeal is granted.

Attachment 2
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 52, Packet Page 220 2/14/23, 4:00 PM Chapter 12.02 WIRELESS FACILITIES IN PUBLIC RIGHTS-OF-WAY https://library.qcode.us/lib/malibu_ca/pub/municipal_code/item/title_12-chapter_12_02?view=all 6/10

2. Appeals must be filed within five business days of the mailing of decision notice of the director, unless a different time period is specified by the director in such notice. The director may extend the time period for filing an appeal for due cause but an extension may not be granted where such extension would result in approval of the application by operation of law.

3. If a timely and complete request for hearing is not submitted, the director’s decision shall be deemed final.

4. If a timely and complete request for hearing is submitted, the city manager shall appoint to an administrative hearing officer (“hearing officer”) to conduct the administrative hearing. The hearing officer may decide the issues de novo. Administrative hearings are informal, and formal rules of evidence and discovery do not apply. The appellant and the applicant shall have the opportunity to present evidence in support of their case.

5. Any administrative hearing shall be conducted so that a timely written decision may be issued in accordance with applicable law.

6. The hearing officer’s decision shall be in writing, shall explain the basis for the decision, and shall be served upon the applicant, and upon the appellant (if different) by first class mail, to the address stated on the request for hearing form. and the written decision of the hearing officer will be the final decision of the city effective on the date of mailing. (Ord. 477 § 2, 2021; Ord. 477U § 2, 2020)

12.02.050 General standards for wireless facilities in the public rights-of-way.

A. Generally. Wireless facilities in the ROW shall meet the minimum requirements set forth in this chapter and the wireless regulations, in addition to the requirements of any other applicable law.

B. Regulations. The wireless regulations and decisions on applications for placement of wireless facilities in the ROW shall, at a minimum, ensure that the requirements of this section are satisfied, unless a waiver is granted by the director or hearing officer pursuant to subsection E of this section.

C. Minimum Standards. Wireless facilities shall be installed and modified in a manner that does not incommode the public use of the ROW, in that it minimizes risks to public safety, avoids placement of aboveground facilities in underground areas, avoids installation of new support structures or equipment cabinets in the public rights-of-way, makes facilities stealth by using concealment elements, and otherwise maintains the integrity and character of the neighborhoods and corridors in which the facilities are located; ensures that installations are subject to periodic review to minimize the intrusion on the rights-of-way; and ensures that the city bears no risk or liability as a result of the installations, and that such use does not inconvenience the public or cause personal or economic harm, interfere with the primary uses of the rights-of-way, or hinder the ability of the city or other government agencies to improve, modify, relocate, abandon, or vacate the public rights-of-way or any portion thereof, or to cause the improvement, modification, relocation, vacation, or abandonment of facilities in the rights-of-way.

D. Engineering Design and Location Standards. All applicants shall engineer, design and locate the wireless facilities in accordance with the standards and wireless regulations set forth separately through the resolution adopted by the city council.

Attachment 2
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 53, Packet Page 221 2/14/23, 4:00 PM Chapter 12.02 WIRELESS FACILITIES IN PUBLIC RIGHTS-OF-WAY https://library.qcode.us/lib/malibu_ca/pub/municipal_code/item/title_12-chapter_12_02?view=all 7/10 E. Waivers. Requests for waivers from any requirement of this chapter shall be made in writing to the director. The director or hearing officer may grant a request for waiver only if it is demonstrated through clear and convincing evidence that denial of an application would, within the meaning of federal law, prohibit or effectively prohibit the provision of personal wireless services, or otherwise violate applicable laws or regulations. All waivers approved pursuant to this subsection shall be: (1) granted only on a case-by-case basis; and (2) narrowly-tailored so that the requirements of this chapter are waived only to the minimum extent required to avoid the prohibition or violation. (Ord. 477 § 2, 2021; Ord. 477U § 2, 2020)

12.02.060 Applications.

A. Submission. Unless the wireless regulations provide otherwise, applicant shall submit a paper copy and an electronic copy of any application, amendments, or supplements to an application, or responses to requests for information regarding an application to the planning department.

B. Pre-Application Meeting. Prior to filing an application for a WRP, applicant is encouraged to schedule a voluntary pre-application meeting with the director to discuss the proposed facility, the requirements of this chapter, and any potential impacts of the proposed facility. Conducting a voluntary pre-application meeting shall not initiate any applicable “shot clock.” C. Public Notice.

1. Within seven calendar days after an application is submitted to the city, the applicant shall: (a) post notice at the proposed project site in a location near to and visible from the ROW; and (b) provide the city with evidence that such notice has been posted. The applicant shall maintain and replace the posted notice as necessary during the entire application review process until the director acts on the application and all appeals have been exhausted. The posted notice shall be composed from durable quality and weather-resistant materials that will not deteriorate under normal circumstances for at least one hundred eighty (180) calendar days. The posted notice shall be at minimum seventeen (17) inches wide by eleven (11) inches tall. The posted notice shall not be placed in any location where it would obstruct travel or visibility for vehicles, bicycles, pedestrians or other users in the ROW. The city encourages applicants to consult with the planning department on placement locations to avoid any potential hazards.

2. Within five business days from the date on which an application is determined to be complete, the director shall notify in writing of the filing of the application property owners and residents of all property within a one thousand (1,000) foot radius of the proposed project, but in no event fewer than the owners and occupants of ten (10) developed properties. The purpose of the notice is to inform the surrounding property owners and residents of the filing of the application and provide an opportunity for comment on the application prior to the director’s decision. The notice shall describe the request, provide a map showing the specific location of the proposed project, describe the review process and timeframes, indicate how to contact the applicant and case planner assigned to the application, and the city-assigned application identifier.

Attachment 2
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 54, Packet Page 222 2/14/23, 4:00 PM Chapter 12.02 WIRELESS FACILITIES IN PUBLIC RIGHTS-OF-WAY https://library.qcode.us/lib/malibu_ca/pub/municipal_code/item/title_12-chapter_12_02?view=all 8/10 D. Content. An applicant shall submit an application on the form approved by the director, which may be updated from time to time, but in any event shall require the submission of all required fee(s), documents, information, and any other materials necessary to allow the director to make required findings and ensure that the proposed facility will comply with applicable federal and state law, the city code, and will not endanger the public health, safety, or welfare. If no form has been approved, applications must contain all information listed in any applicable city council resolution and as necessary to show that applicant is entitled to the WRP requested and must specify whether the applicant believes state or federal law requires action on the application within a specified time period.

E. Fees. Application fee(s) shall be required to be submitted with any application for a wireless ROW permit and with any request for appeal of a director’s decision. At the time of the adoption of the ordinance codified in this chapter, the application and appeal fees are set forth in the planning department fees in the city’s Fiscal Year 2020-2021 Citywide Fee Schedule, which may be amended from time to time. Notwithstanding the foregoing, no application fee shall be refundable, in whole or in part, to an applicant for a WRP unless paid as a refundable deposit. Simultaneously with an appeal request, an affected resident may submit a request for waiver of appeal fees based on a showing of undue financial burden. If the request for waiver is granted, no fee shall apply. If the request for waiver is denied, the affected resident shall submit payment of the fee within three days after notice of the waiver request has been denied. Failure to timely submit the fee will result in dismissal of the appeal.

F. Incompleteness. Applications will be processed, and notices of incompleteness provided, in conformity with state, local, and federal law. If an application is incomplete, the director may notify the applicant in writing, and specifying the material omitted from the application. A failure to notify the applicant of any defect or omission does not relieve the applicant of its burden of proof on the merits and the city reserves the right to deny the application if all necessary information was not provided by the applicant.

G. Denials Without Prejudice/Extensions. To promote efficient review and timely decisions, if the applicant fails to tender a substantive response to the director within ninety (90) calendar days after the director deems the application incomplete in a written notice to the applicant, the director may, in the director’s discretion, deny the application without prejudice. However, if the applicant submits a written request to the director prior to the 90th day that shows good cause to grant an extension, the director may instead grant a written extension for up to an additional thirty (30) calendar days for the applicant to tender a substantive response. (Ord. 477 § 2, 2021; Ord. 477U § 2, 2020)

12.02.070 Findings—Decisions—Consultants.

A. Findings Required for Approval.

1. Except for eligible facilities requests, the director or hearing officer, as the case may be, shall approve an application if, on the basis of the application and other materials or evidence provided in review thereof, he or she finds the following:
a. The facility is not detrimental to the public health, safety, and welfare; b. The facility complies with this chapter and all applicable design and development standards; Attachment 2
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 55, Packet Page 223 2/14/23, 4:00 PM Chapter 12.02 WIRELESS FACILITIES IN PUBLIC RIGHTS-OF-WAY https://library.qcode.us/lib/malibu_ca/pub/municipal_code/item/title_12-chapter_12_02?view=all 9/10 c. The facility meets applicable requirements and standards of state and federal law; d. The application is complete and provides all information required by this chapter; and e. The applicant has satisfied the burden of proving full compliance with all procedural and substantive requirements in this chapter.

2. For eligible facilities requests, the director or hearing officer, as the case may be, shall approve an application if, on the basis of the application and other materials or evidence provided in review thereof, he or she finds the following:
a. That the application qualifies as an eligible facilities request in that:
i. The proposed colocation or modification meets each and every one of the applicable criteria for an eligible facilities request stated in 47 C.F.R. 1.6100(b)(3)-(9), after application of the definitions in 47 C.F.R. 1.6100(b). The director shall make an express finding for each criterion that applies and for any criterion found not to apply the director shall make independent findings justifying the determination that a criterion does not apply;
ii. The existing facility complies with conditions associated with the siting approval of the construction or modification of the eligible support structure or base station equipment; provided, however, that this limitation does not apply to any modification that is noncompliant only in a manner that would not exceed the thresholds identified in 47 C.F.R. 1.6100(b)(7)(i) through (iv); and b. That the proposed facility will comply with all generally-applicable laws.

B. Decisions. Decisions on an application by the director or hearing officer shall be in writing and include the reasons for the decision.

C. Independent Consultants. The director or hearing officer, as the case may be, is authorized, in his or her discretion, to select and retain independent consultant(s) with expertise and appropriate credentials in telecommunications and/or electrical and fire safety in connection with the review of any application under this chapter. Such independent consultant review may be retained on any issue that involves specialized or expert knowledge in connection with an application, including, but not limited to, application completeness or accuracy, engineering analysis, or compliance with FCC radio frequency emissions limits. (Ord. 477 § 2, 2021; Ord. 477U § 2, 2020)

12.02.080 Conditions of approval—Generally.

In addition to any supplemental conditions imposed by the director or hearing officer, as the case may be, all permits under this chapter shall be subject to the conditions in the design standards and standard conditions of approval resolution adopted by the city council, unless modified by the director or hearing officer. (Ord. 477 § 2, 2021; Ord. 477U § 2, 2020)

12.02.090 Breach—Termination of permit.

Attachment 2
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 56, Packet Page 224 2/14/23, 4:00 PM Chapter 12.02 WIRELESS FACILITIES IN PUBLIC RIGHTS-OF-WAY https://library.qcode.us/lib/malibu_ca/pub/municipal_code/item/title_12-chapter_12_02?view=all 10/10 A. For Breach. A WRP may be revoked for failure to comply with the conditions of the permit or applicable law or if the permittee becomes ineligible for franchise rights under state law or if the permittee’s FCC authorization to operate wireless facilities and/or provide wireless service is terminated for any reason. Upon revocation, the wireless facility must be removed; provided that removal of a support structure owned by city, a utility, or another entity authorized to maintain a support structure in the right-of-way need not be removed, but must be restored to its prior condition, except as specifically permitted by the city. All costs incurred by the city in connection with the revocation and removal shall be paid by entities who own or control any part of the wireless facility.

B. For Installation Without a Permit. A wireless facility or its modification installed after the effective date of the ordinance codified in this chapter without a WRP (except for those exempted from, or not subject to, this chapter) must be removed; provided that removal of a support structure owned by city, a utility, or another entity authorized to maintain a support structure in the right-of-way need not be removed, but must be restored to its prior condition, except as specifically permitted by the city. All costs incurred by the city in connection with enforcement of this provision and removal shall be paid by entities who own or control any part of the wireless facility.

C. Violations. In addition to any criminal, civil or other legal remedy established by law that may be pursued to address violations of the municipal code, violations of any provision of this chapter or the regulations adopted by this chapter are subject to the administrative penalty provisions of Chapter 1.10. (Ord. 477 § 2, 2021; Ord. 477U § 2, 2020)

12.02.100 Nondiscrimination.

In establishing the rights, obligations and conditions set forth in this chapter, it is the intent of the city to treat each applicant or public right-of-way user in a competitively neutral and nondiscriminatory manner, to the extent required by law, and with considerations that may be unique to the technologies, situation and legal status of each particular applicant or request for use of the ROW. (Ord. 477 § 2, 2021; Ord. 477U § 2, 2020)
Contact:

City Clerk: 310-456-2489 ext. 228
Published by Quality Code Publishing, Seattle, WA. By using this site, you agree to the terms of use.

Attachment 2
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 57, Packet Page 225

Second Supplemental
Council Agenda Report
To: Mayor Pierson and the Honorable Members of the City Council Prepared by: Richard Mollica, Acting Planning Director
Adrian Fernandez, Principal Planner
Gail Karish & Andrew McCardle of BB&K
Christi Hogin, City Attorney
Trevor Rusin, Assistant City Attorney
Date prepared: December 9, 2020 Meeting date: December 9, 2020 Subject: Consider Urgency Ordinance, and Introduction of Ordinance, Regulating the Permitting of Wireless Facilities in Public Rights-ofWay and Finding the Same Exempt from the California Environmental Quality Act; and Adoption of Resolution Establishing Design and Development Standards and Standard Permit Conditions for Wireless Facilities in Public Rights-of-Way
This supplements Attachment 2 and Attachment 3 published with the original staff report on Friday, December 4, 2020.

ATTACHMENTS:

1. Attachment 2 – REDLINED

2. Attachment 3 – REDLINED
Special Meeting
12-09-20
Item

1.A.

Attachment 2
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 58, Packet Page 226 ATTACHMENT 3
RESOLUTION NO. 20-65

A RESOLUTION OF THE CITY OF MALIBU ADOPTING ENGINEERING,

DESIGN AND LOCATION STANDARDS AND CONDITIONS OF
APPROVAL FOR WIRELESS FACILITIES IN THE PUBLIC RIGHT-OFWAY AND FINDING THE SAME EXEMPT FROM THE CALIFORNIA

ENVIRONMENTAL QUALITY ACT
The City Council of the City of Malibu does hereby find, resolve and order as follows:

SECTION 1. Recitals
A. Chapter 12.02 of the Malibu Municipal Code governs the permitting, installation, and regulation of personal wireless services facilities in the City’s public right-of-way (ROW); B. Section 12.025.050(D) provides that “[a]ll applicants shall engineer, design and locate the wireless facilities in accordance with the standards and wireless regulations set forth separately though the resolution adopted by the City Council;” C. The City’s public rights-of-way are a uniquely valuable public resource, closely linked with the City’s character, making the regulation of wireless installations in the public rights-of-way necessary to protect and preserve the aesthetics in the community; D. Being authorized to do so, the City wishes to establish engineering, design and development standards applicable to wireless installations in the public rights-of-way; E. The City also wishes to set standard conditions of approval applicable to wireless ROW permits; and
F. On December 9, 2020 the City Council conducted a duly noticed public hearing and received testimony from City staff and all interested parties regarding the engineering, design and development standards.

Purpose The purpose of this document is to (1) establish design and location standards (Standards) for wireless facilities in the public right-of-way (ROW) withinhile the City; and (2) set standard conditions of approval for Wireless ROW Permits (WRPs).

Definitions For the purposes of these Standards, the definitions set forth in Malibu Municipal Code (MMC) Section 12.02.020 are incorporated by reference into this Resolution and in addition the following definitions apply:

A. “Pole-mounted facility” means a wireless facility that is, or is proposed to be, attached to or contained in a pole.

B. “Stealth facility” (or “stealth facilities”) means a wireless facility designed to look like something other than a wireless tower or base station.

Commented [A1]: Scott McCollough proposed including
application content requirements in the Resolution. Staff recommends further evaluation of these requirements so that they can be considered for inclusion in an amended resolution considered by the Planning Commission in January.

Attachment 2
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 59, Packet Page 227 Resolution No. 20-65

_____________________
General Standards for all Facilities The following standards shall apply to all wireless facilities in the ROW:

A. All wireless facilities shall be engineered and designed to minimize the visual impact by means of placement, screening, camouflaging, painting and texturing and to be compatible with existing architectural elements, building materials and other site characteristics. The applicant shall use the smallest and least visible antenna possible to accomplish the facility’s objectives. All antennas and support structures shall be painted and/or textured to achieve architectural compatibility with the structures for which they are attached and/or located.

B. Prohibition of Generators. Permanent generators are prohibited.

C. General Orders. All installations shall comply with applicable California Public Utilities Commission (“CPUC”) General Orders, including, but not limited to General Order 95, and, if stricter, the pole owner’s safety standards. None of the engineering or design standards are meant to conflict with or cause a violation of CPUC General Orders. Accordingly, the Standards can be adjusted on a case-by-case basis if it is demonstrated that adjustment is necessary to ensure compliance with CPUC rules on safety.

D. Electric Service. The permittee shall request that the permittee’s electric service provider apply flat-rate billing for any proposed electric service, wireless smart metering or other alternative metering option that would obviate the need for an above-grade electric meter. If flat-rate service is not available, applicants may install a shrouded “smart meter” that shall not exceed the width of the pole; provided, however that such smart meter shall be placed at least ten (10) feet above ground level. If the proposed project involves a ground-mounted equipment cabinet, an electric meter may be integrated with and recessed into the cabinet, but the Director shall not approve a separate ground-mounted electric meter pedestal unless (1) the separate ground-mounted meter pedestal would be placed off the sidewalk and (2) the applicant demonstrates with clear and convincing evidence that all other alternatives for the electric meter are not available.

All support equipment located within cabinets, shelters, or similar structures shall be screened from public view to the maximum extent feasible. Undergrounding of support equipment is required wherever practicable.

E. Security. All equipment and facilities shall be installed in a manner to avoid being an attractive nuisance and to prevent unauthorized access, climbing, and graffiti.

Attachment 2
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 60, Packet Page 228 Resolution No. 20-65

_____________________
F. Safety. All wireless facilities, including each piece of equipment, shall be located and placed in a manner so as to not interfere with the public use of the ROW; impede the flow of vehicular or pedestrian traffic; impair the primary use and purpose of poles/signs/traffic signals or other infrastructure; interfere with outdoor dining areas or emergency facilities; or otherwise obstruct the accessibility of the ROW. Further, all wireless facilities and associated equipment shall comply with Americans with Disabilities Act (ADA) requirements.

G. Fire and Electrical Safety Standards. All wireless facilities shall contain:

1. A power shut off readily accessible to fire service personnel for emergencies;

2. Surge protection for lightning discharge or other significant electrical disturbances;

3. Signage as required by the permit conditions, the National Electric Code or the Los Angeles County Fire Department Chief or his or her designee; and

4. Instructions for first responders to de-energize the equipment.

G.H. Noise. Wireless facilities and equipment must comply with the City’s noise ordinance in MMC 8.24, or any successor provisions, and be designed to prevent noise and sound from being plainly audible at a distance of fifty (50) feet from the facility or within ten (10) feet of any residence.

H.I. Lighting. Lighting of antenna structures and their electrical support equipment is prohibited, except as required by any order or regulation of the Federal Communications Commission (FCC) or the Federal Aviation Administration (FAA) and except for manually operated emergency lights for use when official operating personnel are on site.

I.J. Signs. No facility may display any signage or advertisement unless it is expressly allowed by this paragraph or required by law or a permit condition. Every facility shall at all times display signage that accurately identifies the facility owner and provides the owner’s unique site number and a local or toll-free telephone number to contact the facility owner’s operations center.

J.K. Landscaping. Where appropriate, facilities shall be installed so as to maintain and enhance existing landscaping on the site, including trees, foliage and shrubs, whether or not utilized for screening. In addition to any landscaping used for concealment or screening purposes, the applicant Attachment 2
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 61, Packet Page 229 Resolution No. 20-65

_____________________
shall replace any existing landscaping displaced during construction or installation of the applicant’s facility. The applicant’s landscaping plan shall be subject to the City’s review and approval but shall, at a minimum, match the existing landscaping and foliage surrounding the installation site consistent with MMC Section 17.53.090.

Location Standards for All Facilities The location standards for all wireless facilities, other than those that qualify as eligible facilities requests, in the ROW are as follows:

A. Spacing. Wireless facilities located adjacent to any residential zone district, except for those facilities placed on utility poles located along Pacific Coast Highway or other major arterial roadways as depicted in Figure CI-1 of the City’s General Plan, shall not be located within six hundred (600) feet of any other wireless facility, unless a finding is made, based on technical evidence acceptable to the Planning Director, as appropriate, showing a clear need for the facility and that no technically feasible alternative site exists. This provision does not apply to wireless facilities located adjacent to any commercial zone district.

B. Location preference for wireless facilities should be given to the following:

1. Installations along major arterial roadways as depicted in Figure CI-1 of the City’s General Plan.

2. Facilities attached to existing utility poles or street lights, or sited adjacent to existing structures not used for human habitation or school grounds or to playgrounds or parks. Whenever possible, facilities shall be located on and/or inside existing structures.

3. Sites that are not highly visible from adjacent roadways and do not obstruct views of impressive scenes off the Pacific Ocean, offshore islands, the Santa Monica Mountains, canyons, valleys, or ravines.

4. Unless otherwise indicated in this title, no wireless facility shall be installed on an exposed ridgeline unless the facility blends with the surrounding existing natural and man-made environment and a finding is made that no other location is technically feasible.

C. Discouraged Locations/Zones.

1. Wireless facilities that are within 250 feet from the property line of an open space or recreational area.

2. Wireless facilities that are less than five hundred (500) feet from school grounds, playgrounds or parks.

Commented [A2]: Scott McCollough proposed that this distance be 1,500 feet.

Commented [A3]: Scott McCollough proposed that these
locations be prohibited and that these distances be 1,500 feet.

Attachment 2
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 62, Packet Page 230 Resolution No. 20-65

_____________________

3. Wireless facilities that are less than four hundred fifty (450) feet from any other existing wireless facility within or adjacent to any residential zone district, except for those facilities placed on utility poles located along Pacific Coast Highway or other major arterial roadways as depicted in Figure CI-1 of the City’s General Plan.

Undergrounding Standards for All Facilities With regard to undergrounding wireless facilities, the following standards apply:

A. Equipment, including remote radio units (RRUs) that cannot be placed with the antenna in the shroud, must be placed underground, subject to Section 7(B) below. Vaults and pull boxes shall be installed flush to grade.

B. Ground-mounted equipment is prohibited unless required for technical reasons.

1. If required, ground-mounted wireless facilities shall be located near existing structures or trees at similar heights for screening purposes. The equipment shall be enclosed in cabinets, sized only for the necessary equipment. Further, if ground mounted, the antennas, equipment, cabinet and support structure shall be painted, textured, landscaped or otherwise camouflaged as much as possible to integrate the structure into the environment. Colors and materials for facilities shall be non-reflective and chosen to minimize visibility. As such, ground-mounted equipment shall be stealth.

2. The ground-mounted equipment must not obstruct ocean views.

3. Not more than one ground-mounted antenna shall be permitted on each site.

Design Standards for all Facilities The general design standards for wireless facilities in the ROW are as follows:

A. Materials. The materials used shall be non-reflective and non-flammable.

B. Cabinet doors must be design to stay securely closed, and openings in all facilities shall be shielded or made the smallest size feasible to protect against fire and wind-blown embers.

C. The pole, or other support structure, and all equipment shall be designed to withstand forces from seismic events.

D. All connections between various components of the facility, power lines, and conduit shall be designed in a manner to protect against damage by a Attachment 2
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 63, Packet Page 231 Resolution No. 20-65

_____________________
natural disaster, a vehicular accident, an act of vandalism or similar external forces.

B.E. Stealth. The wireless facility shall be stealth. Stealth elements and techniques should be used to blend the facility with surrounding materials and colors of the support structure and make the facility appear to be something other than a wireless facility. Stealth elements include, but are not limited to, the following:

1. Radio frequency (RF) transparent screening or shrouds;

2. Matching the color of the existing support structure by painting, coating, or otherwise coloring the wireless facility, equipment, mounting brackets, and cabling;

3. Placing cables and wires inside the pole or beneath conduit of the smallest size possible;

4. Minimizing the size of the site;

5. Installing new infrastructure that matches existing infrastructure in the area surrounding the proposed site; and

6. Using paint of durable quality.

C.F. Curb Setback Requirements. New or replacement poles shall be a minimum of 18 inches from the face of the curb.

D.G. Collocation. The City has a preference for the use of existing infrastructure. Wireless facilities shall be collocated on existing poles or other facilities when possible. No permittee shall restrict access to an existing antenna location if required to collocate by the City and if possible to do so.

E.H. Minimum Height. All antennas shall be located such that: (1) any person walking adjacent to the transmitting surface of the antenna will be walking on a grade that is a minimum of eight and one-half feet below the transmitting surface; and (2) no person at ground level will be exposed to an exposure level that is higher than allowed by the FCC’s general population exposure rules.

F.I. Strand-mounted Facilities. Strand-mounted facilities are encouraged. The facilities must be stealth and of the smallest size that is technically feasible to reduce aesthetic impacts.

Commented [A4]: Scott McCollough proposed alternative
standards for strand-mounted facilities.

Attachment 2
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 64, Packet Page 232 Resolution No. 20-65

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Engineering and Design Standards for Pole-Mounted Facilities In addition to the generally applicable standards set forth above, the design standards for pole-mounted facilities in the ROW are as follows:

A. Facilities on Streetlight Poles.

1. Stealth. The facility shall be engineered, designed, painted, coated, and otherwise made to maintain the look of a streetlight pole rather than a wireless facility, tower, or base station.

2. Antennas and RRUs. Antennas shall be top-mounted in a shroud, and RRUs and other equipment shall be placed underground. If RRUs and equipment cannot be underground, then they shall be placed within the shroud with the antenna. RRUs attached to the side of the pole or ground-mounted are discouraged, but if they are required due to technical reasons, they should use the smallest RRU volume possible and be stacked vertically and close together with minimal distance from the pole.

3. Dimensions. Antennas shall be of the smallest possible size, but in no case more than three cubic feet in volume. Pole-top wireless facilities, including shroud, shall be no more than 60 inches in height and 14.5 inches in diameter.

4. Cables and Wiring. All cables and wiring must be within the pole.

B. Facilities on Wood Utility Poles.

1. Stealth. The facility shall be engineered, designed, painted, coated, and otherwise made to maintain the look of a utility pole rather than a wireless facility, tower, or base station.

2. Antennas. The preferred mounting type for wireless facilities on wood utility poles is side-mounting.
a. Side-mounted Facilities. Antennas and RRUs shall be midpole mounted (i.e., mid-pole mounted) in a shroud. If RRUs are attached to the side of the pole, the facility should use the smallest RRU volume possible, and the
RRUs should be stacked vertically and close together with minimal distance from the pole.
(1) Antennas shall be of the smallest possible size, but in no case more than three cubic feet in volume.

Attachment 2
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(2) Side-mounted wireless facilities shall be of the
smallest size technically feasible and shall not
project from the pole more than 30 inches. The
diameter of the shroud shall be no greater than the
diameter of the pole or 14.5 inches, whichever is
less. Side-mounted facilities shall only extend out
on one side of the pole.
b. Top-mounted Facilities. Antennas and RRUs shall be topmounted in a shroud. (1) Dimensions. Antennas shall be of the smallest
possible size, but in no case more than three cubic
feet in volume.
(a) Pole-top wireless facilities, including
shroud, shall be no more than 72 inches in
height and 14.5 inches in diameter.

3. Cables and Wiring. All cables and wiring must be within the conduit on the exterior of the pole. The conduit must be a color that matches the pole and of the smallest size technically feasible.

C. Replacement Poles. If an applicant proposes or is required to install a replacement pole to accommodate the proposed facility:

1. Placement. A replacement pole must be in the same location as the pole that it is replacing or as close to the original location as possible, taking into account pole owner safety-related requirements and all applicable location and placement standards herein.

2. Design. Replacement poles should match the design (e.g., color, dimensions, height, style, and materials) of the existing pole that is being replaced.

3. Cables and Wiring. All cables and wiring on non-wood poles must be within the structure. All cables and wiring on wood poles must be within conduit on the exterior of the pole. The conduit must be a color that matches the pole and of the smallest size technically feasible.

4. Stealth. The facility should be stealth, as defined above in Section 4(B).

D. New (Non-Replacement) Poles.

Attachment 2
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1. Waiver Required. New poles are prohibited, unless a waiver is approved by the City to prevent a prohibition of service.

2. Design. New poles (including antenna) shall have a maximum height of 28 feet and a maximum diameter of 14 inches, and any base enclosure shall not exceed 24 inches in width or height. If existing poles are present in the surrounding area, then the new pole shall be designed to resemble the existing poles in appearance, color, materials, and distribution pattern/spacing.

3. New wooden poles are prohibited, unless required to match existing poles in the area surrounding the proposed installation site.

4. Cables and Wiring. All cables and wiring on non-wood poles must be within the pole. All cables and wiring on wood poles must be within the conduit on the exterior of the pole. The conduit must be a color that matches the pole and of the smallest size technically feasible.

5. Antennas and RRUs. Antennas and RRUs shall be contained within the pole and its base or underground.

6. Stealth. The facility must be stealth, as defined above in Section 4(B).

Exceptions to These Design Standards
A. An exception may be granted to one or more of these Standards in the following circumstances:

1. Pursuant to MMC Section 12.02.050(E), if an applicant demonstrates to the Director or Hearing Officer in writing with clear and convincing evidence that denial of an application would, within the meaning of federal law, prohibit or effectively prohibit the provision of personal wireless services, or otherwise violate applicable laws or regulations. All waivers approved pursuant to MMC Section 12.02.050(E) shall be (1) granted only on a case-bycase basis, and (2) narrowly-tailored so that the requirements of these Standards are waived only to the minimum extent required to avoid the prohibition or violation.

1.2. If an applicant demonstrates to the Director or Hearing Officer with clear and convincingsubstantial, objective, fact-based evidence set forth in a feasibility study that compliance with a requirement of the policy would be technically infeasible and the proposed wireless facility complies with the requirements of this Attachment 2
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policy to the greatest extent technically feasible. For example, an exception to a requirement to conceal antennas in a shroud may be granted if shrouding is shown to be technically infeasible and an alternative concealment such as a colored film wrap is proposed.

As another example, an exception to the volume limitation for antennas in a single shroud may be granted if the applicant can demonstrate that a greater volume is technically required, and that it is using the smallest, technically feasible engineering and design for providing personal wireless services, taking into account the other requirements of these Standards; or

2.3. If an applicant demonstrates to the Director or Hearing Officer in writing and based on clear and convincingsubstantial evidence that the particular engineering, design or location proposed involves only minor non-compliance with a requirement of these Standards but such non-compliance either results in no increase in visual harms to the community or provides other benefits. For example, an exception to the antenna or equipment size or volume limitations may be granted when the applicant can demonstrate that because of the proposed location of the wireless facility away from viewsheds of residences or shielded by vegetation or existing infrastructure (such as barriers) in the public ROW, any additional visual and physical impacts of the larger wireless facility would be insignificant. As another example, an exception to the wireless facility location limitations may be granted when the applicant can demonstrate that the placement is less visible from viewsheds of residences or shielded by vegetation or existing infrastructure (such as barriers) in the public right-of-way, or is less physically intrusive (for example, less impactful to tree roots or reduces noise), or the applicant can demonstrate that in a multi-site deployment, the placement would reduce the overall number of sites needed and be no more visible or physically intrusive than placement in accordance with the wireless location criteria. Among other factors, in deciding whether or not to grant an exception, the Director may consider the impact of expansions to the facility that the applicant would be entitled to make as of right if granted.

B. Factors to be addressed in a feasibility study requesting an exception to undergrounding requirements based on feasibility shall include but are not limited to construction impacts (including duration and extent of excavation and soil disturbance); traffic and pedestrian impacts (including impediments to access during construction and maintenance, or permanent impediments due to the nature of particular equipment); operational challenge (such as water, heat, or maintenance complications affecting network reliability); noise impacts (such as venting and pumping which Attachment 2
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may be required in some instances); cost impacts; aesthetic considerations; and permanent impacts to the integrity and future capacity of public ROW.

C. Exceptions must be requested at the time an application is initially submitted for a WRP. The request must include both the specific provision(s) from which exception is sought and the basis of the request, including all supporting evidence on which the applicant relies. Any request for exception after the Director has deemed an application complete constitutes a material change to the proposed wireless facility and shall be considered a new application. A request for exception from one or more requirements does not relieve the applicant from compliance with all other applicable provisions of law or of these Standards.

Standard Conditions of Approval for Permits Under MMC Chapter 12.02 A. Generally. In addition to any supplemental conditions imposed by the Director of Planning or the Hearing Officer, as the case may be, all permits under MMC Chapter 12.02 shall be subject to the following conditions, unless modified by the approving authority:

1. The permittee, and their successors in interest, shall indemnify and defend the City of Malibu and its officers, employees and agents from and against all liability and costs relating to the City's actions concerning this project, including (without limitation) any award of litigation expenses in favor of any person or entity who seeks to challenge the validity of any of the City's actions or decisions in connection with this project or seeks to hold the City liable in whole or in part as a result of the engineering, design, construction or operation of the facility. The City shall have the sole right to choose its counsel and property owners shall reimburse the City’s expenses incurred in its defense of any lawsuit challenging the City’s actions concerning this project.

2. Subsequent submittals for this project shall be in substantial compliance with the plans date-stamped received by the Planning Department on _____________. The project shall comply with all conditions of approval stipulated in the referral sheets attached to the agenda report for this project. In the event the project plans conflict with any condition of approval, the condition shall take precedence and revised plans shall be submitted and approved by the Planning Director prior to the Environmental Sustainability Department for plan check.

3. The permit and rights conferred in this approval shall not be effective until the permitteeroperty owner signs, notarizes and returns the Acceptance of Conditions Affidavit accepting the Attachment 2
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conditions set forth herein. The applicant shall file this form with the Planning Department within 30 days of this decision or prior to issuance of any wireless ROW, building, electrical or
encroachment permit.

4. The applicant shall digitally submit a complete set of plans, including the items required in Condition No. 5 to the Planning Department for consistency review and approval prior to plan check and again prior to the issuance of any building or development permits.

5. This Notice of Decision (including the signed and notarized Acceptance of Conditions Affidavit) shall be copied in its entirety and placed directly onto a separate plan sheet(s) to be included in the development plans prior to submitting any development permits from the City of Malibu Environmental Sustainability Department and encroachment permit.

6. A WRP shall be valid for a period of ten (10) years from issuance, unless pursuant to another provision of the Code or these conditions, it expires sooner or is terminated. At the end of ten (10) years from the date of issuance, such wireless ROW permit shall automatically expire, unless an extension or renewal has been granted. A person holding a WRP must either (1) remove the facility within thirty (30) days following the permit’s expiration (provided that removal of support structure owned by City, a utility, or another entity authorized to maintain a support structure in the right of way need not be removed, but must be restored to its prior condition, except as specifically permitted by the City); or (2) prior to expiration, submit an application to renew the permit, which application must, among all other requirements, demonstrate that the impact of the wireless facility cannot be reduced. The wireless facility must remain in place until it is acted upon by the City and all appeals from the City’s decision exhausted.

7. The installation and construction authorized by a WRP shall be completed within three (3) years after its approval, or it will expire without further action by the City unless prior to the three (3) years the applicant submit an extension request and the City, in its sole discretion, grants a time extension for due cause. The installation and construction authorized by a wireless ROW permit shall conclude, including any necessary post-installation repairs and/or restoration to the ROW, within thirty (30) days following the day construction commenced. The permittee must provide written notice to City within ten (10) days after completing construction.

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The expiration date shall be suspended until an appeal and/or litigation regarding the subject permit is resolved.

8. The Planning Director may grant up to four one-year extensions of the timeline, in Condition 7 above, for completing the installation and construction authorized by a WRP approval, if the Planning Director finds that the conditions, including but not limited to changes in the wireless ordinance under which the WRP approval was issued, have not significantly changed.

9. Any questions of intent or interpretation of any condition of approval will be resolved by the Planning Director upon written request of such interpretation.

10. All structures shall conform to the requirements of the Environmental Sustainability Department, City Public Works Department, FCC and Los Angeles County Fire Department
requirements, as applicable. Notwithstanding this review, all required permits, including but not limited to an encroachment permit from the City, shall be secured.

11. Minor changes to the approved plans or the conditions of approval may be approved by the Planning Director, provided such changes achieve substantially the same results and the project is still in compliance with the MMC. An application with all required materials and fees shall be required.

Cultural Resources

12. In the event that potentially important cultural resources are found in the course of geologic testing, work shall immediately cease until a qualified archaeologist can provide an evaluation of the nature and significance of the resources and until the Planning Director can review this information. Where, as a result of this evaluation, the Planning Director determines that the project may have an adverse impact on cultural resources, a Phase II Evaluation of cultural resources shall be required pursuant to MMC Section

17.54.040(D)(4)(b).

13. If human bone is discovered, the procedures described in Section 7050.5 of the California Health and Safety Code shall be followed.

These procedures require notification of the coroner. If the coroner determines that the remains are those of a Native American, the applicant shall notify the Native American Heritage Commission by phone within 24 hours. Following notification of the Native American Heritage Commission, the procedures described in Attachment 2
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Section 5097.94 and Section 5097.98 of the California Public Resources Code shall be followed.

Wireless Facility Conditions

14. All antennas shall meet the minimum siting distances to public/uncontrolled areashabitable structures required for compliance with the FCC regulations and standards governing the environmental effects of radio frequency emissions. Permittee shall keep up-to-date on current information from the FCC in regards to maximum permissible radio frequency exposure levels. In the event that the FCC changes its guidelines for human exposure to radio frequency, permittee shall, within 30 days after any such change, submit to the Planning Director a report prepared by a qualified engineer that demonstrates actual compliance with such changed guidelines. The Director may, at permittee’s sole cost, retain an independent consultant to evaluate the compliance report and any potential modifications to the permit necessary to conform to the FCC’s guidelines. Failure to submit the compliance report required under this condition, or failure to maintain compliance with the FCC’s guidelines for human exposure to radio frequency at all times shall constitute grounds for permit revocation.

15. All antennas shall be located so that any person walking adjacent to the transmitting surface of the antenna will be walking on a grade, which is a minimum of eight and one-half feet below the transmitting surface.

16. All antennas, equipment, and support structures shall be engineered and designed to prevent unauthorized climbing.

17. The wireless facility shall be erected, operated, and maintained in compliance with the general requirements set forth in the Standards.

18. The antenna and electrical support equipment shall, at all times, be operated in a manner that conforms to the applicable federal health and safety standards.

19. Wireless facilities and equipment must comply with the City’s noise ordinance in MMC 8.24, or any successor provisions, and be designed to prevent noise and sound from being plainly audible at a distance of fifty (50) feet from the facility or within ten (10) feet of any residence.

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20. The installation of a permanent onsite generator and/or other equipment is prohibited. The Planning Director’s approval is required if a generator is to be placed onsite for temporary or permanent use.

21. All pole-mounted equipment associated with the application shall be located no lower than eight feet above grade or ground level on the utility pole.

22. The City or its designee may enter onto the facility area to inspect the facility upon 48 hours prior notice to the permittee. The permittee shall cooperate with all inspections and may be present for any inspection of its facility by the City. The City reserves the right to enter or direct its designee to enter the facility and support, repair, disable, or remove any elements of the facility in emergencies or when the facility threatens imminent harm to persons or property. The City shall make an effort to contact the permittee prior to disabling or removing any facility elements, but in any case, shall notify permittee within 24 hours of doing so.

23. Testing of any equipment shall take place on weekdays only, and only between the hours of 8:30 a.m. and 4:30 p.m., except that testing is prohibited on holidays that fall on a weekday. In addition, testing is prohibited on weekend days.

24. Permittee shall obtain and maintain throughout the term of the permit commercial general liability insurance with a limit of five million dollars ($5,000,000) per occurrence for bodily injury and property damage and six million dollars ($6,000,000) general aggregate including premises operations, contractual liability, personal injury, and products completed operations. The relevant policy(ies) shall name the City, its elected/appointed officials, commission members, officers, representatives, agents, and employees as additional insureds. Permittee shall use its best efforts to provide thirty (30) days’ prior notice to the City of to the cancellation or material modification of any applicable insurance policy.

25. Prior to issuance of a wireless encroachment permit, the permittee shall file with the City, and shall maintain in good standing throughout the term of the approval, a performance bond or other surety or another form of security for the removal of the facility in the event that the use is abandoned or the permit expires, or is revoked, or is otherwise terminated. The security shall be in the amount equal to the cost of physically removing the facility and all related facilities and equipment on the site, based on the higher of Attachment 2
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two contractor’s quotes for removal that are provided by the permittee. The permittee shall reimburse the city for staff time associated with the processing and tracking of the bond, based on the hourly rate adopted by the City Council. Reimbursement shall be paid when the security is posted and during each administrative review.

26. Permittee shall not move, alter, temporarily relocate, change, or interfere with any existing structure, improvement, or property without the prior consent of the owner of that structure, improvement, or property. No structure, improvement, or property owned by the City shall be moved to accommodate a permitted activity or encroachment, unless the City determines that such movement will not adversely affect the City or any surrounding businesses or residents, and the Permittee pays all costs and expenses related to the relocation of the City's structure, improvement, or property. Prior to commencement of any work pursuant to a WRP, the permittee shall provide the City with documentation establishing to the city's satisfaction that the permittee has the legal right to use or interfere with any other structure, improvement, or property within the public right-of-way or City utility easement to be affected by permittee's facilities.

27. The permission granted by a WRP shall not in any event constitute an easement on or an encumbrance against the ROW. No right, title, or interest (including franchise interest) in the ROW, or any part thereof, shall vest or accrue in permittee by reason of a WRP or the issuance of any other permit or exercise of any privilege given thereby.

28. No possessory interest is created by a WRP. However, to the extent that a possessory interest is deemed created by a governmental entity with taxation authority, permittee
acknowledges that City has given to permittee notice pursuant to California Revenue and Taxation Code Section 107.6 that the use or occupancy of any public property pursuant to a WRP may create a possessory interest which may be subject to the payment of property taxes levied upon such interest. Permittee shall be solely liable for, and shall pay and discharge prior to delinquency, any and all possessory interact taxes or other taxes, fees, and assessments levied against permittee’s right to possession, occupancy, or use of any public property pursuant to any right of possession, occupancy, or use created by this WRP.

29. If not already completed, permittee shall enter into the appropriate agreement with the City, as determined by the City, prior to Attachment 2
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constructing, attaching, or operating a facility on municipal infrastructure. This permit is not a substitute for such agreement.

30. For all facilities located within the ROW, the permittee shall remove or relocate, at its expense and without expense to the City, any or all of its facilities when such removal or relocation is deemed necessary by the City by reason of any change of grade, alignment, or width of any right-of-way, for installation of services, water pipes, drains, storm drains, power or signal lines, traffic control devices, right-of-way improvements, or for any other construction, repair, or improvement to the right-of-way.

31. If a facility is not operated for a continuous period of three (3) months, the WRP and any other permit or approval therefore shall be deemed abandoned and terminated automatically, unless before the end of the three (3) month period (i) the Director has determined that the facility has resumed operations, or (ii) the City has received an application to transfer the permit to another service provider. No later than ninety (90) days from the date the facility is determined to have ceased operation or the permittee has notified the Director of its intent to vacate the site, the permittee shall remove all equipment and improvements associated with the use and shall restore the site to its original condition to the satisfaction of the Director. The permittee shall provide written verification of the removal of the facilities within thirty (30) days of the date the removal is completed. If the facility is not removed within thirty (30) days after the permit has been discontinued pursuant to this subsection, the site shall be deemed to be a nuisance, and the City may cause the facility to be removed at permittee’s expense or by calling any bond or other financial assurance to pay for removal. If there are two (2) or more users of a single facility or support structure, then this provision shall apply to the specific elements or parts thereof that were abandoned but will not be effective for the entirety thereof until all users cease use thereof.

32. In the event the City determines that it is necessary to take legal action to enforce any of these conditions, or to revoke a permit, and such legal action is taken, the permittee shall be required to pay any and all costs of such legal action, including reasonable attorney’s fees, incurred by the City, even if the matter is not prosecuted to a final judgment or is amicably resolved, unless the City should otherwise agree with permittee to waive said fees or any part thereof. The foregoing shall not apply if the permittee prevails in the enforcement proceeding.

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Construction

33. Installation hours shall be limited to Monday through Friday from 7:00 a.m. to 7:00 p.m. and Saturdays from 8:00 a.m. to 5:00 p.m.

No installation activities shall be permitted on Sundays and Citydesignated holidays. The restricted work hours described in this condition do not apply to emergency maintenance necessary to protect health or property. The City of Malibu may issue a Stop Work Order if permittee violates this condition. Construction activities shall be conducted in compliance with, and abide by, all applicable safety codes.

Site Specific Conditions

34. In the event that the electric service provider does not currently offer an alternative metering option, the permittee shall remove the above-grade electric meter when such option becomes available.

Prior to removing the above-grade electric meter, the permittee shall apply for any encroachment and/or other ministerial permit(s) required to perform the removal. Upon removal, the permittee shall restore the affected area to its original condition that existed prior to installation of the equipment.

35. The permittee acknowledges that the City specifically includes conditions of approval related to (a) painting, coloring or finishing the equipment to match the pole; (b) undergrounding all equipment to the extent possible; and (c) installing equipment within shrouds, conduits and risers as concealment elements engineered and designed to integrate the wireless facility with the surrounding built and natural environment. Any future modifications to the permittee’s wireless facility must maintain or improve all concealment elements.

36. Before the permittee submits any applications for construction, encroachment, excavation or other required permits in connection with this permit, the permittee must incorporate a true and correct copy of this permit, all conditions associated with this permit and any approved photo simulations into the project plans (collectively, the “Approved Plans”). The permittee must construct, install and operate the wireless facility in substantial compliance with the Approved Plans as determined by the Director or the Director’s designee. Any substantial or material alterations, modifications or other changes to the Approved Plans, whether requested by the permittee or required by other departments or public agencies with jurisdiction over the wireless facility, must be submitted in a written request subject to the Director’s prior review and approval, Attachment 2
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who may refer the request to the original approval authority if the Director finds that the requested alteration, modification or other change substantially deviates from the Approved Plans or implicates a significant or substantial land-use concern.

37. The permittee shall install and at all times maintain in good condition a “Network Operations Center Information” and “RF Caution” sign on the utility pole no less than three (3) feet below the antenna (measured from the top of the sign) and no less than nine (9) feet above the ground line (measured from the bottom of the sign). Signs required under this condition shall be installed so that a person can clearly see the sign as he or she approaches within three (3) feet of the antenna structure. If any person on or within the public ROW is or may be exposed to emissions that exceed applicable FCC uncontrolled/general population limits at any time the sign shall expressly so state, and provide instructions on how persons can avoid any such exposure. The sign shall also include the name(s) of the facility owner(s), equipment owner(s) and operator(s)/carrier(s) of the antenna(s), property owner name, as well as emergency phone number(s) for all such parties. The sign shall not be lighted, unless applicable law, rule or regulation requires lighting. No signs or advertising devices other than required certification, warning, required seals or signage, other signage required by law, this Chapter, any City or applicable state code or the Los Angeles County Fire Department Chief or his or her designee shall be permitted. The sign shall be no larger than two (2) square feet.

37.38. The permittee shall ensure that all signage complies with FCC Office of Engineering and Technology Bulletin 65, CPUC General Order 95 or American National Standards Institute C95.2 for color, symbol, and content conventions. All such signage shall at all times provide a working local or toll-free telephone number to its network operations center, and such telephone number shall be able to reach a live person who can exert transmitter power-down control over this site as required by the FCC.

38.39. In the event that the FCC changes any of radio frequency signage requirements that are applicable to the project site approved herein or ANSI Z535.1, ANSI Z535.2, and ANSI C95.2 standards that are applicable to the project site approved herein are changed, the permittee, within 30 days of each such change, at its own cost and expense, shall replace the signage at the project site to comply with the current standards.

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39.40. The permittee shall maintain the paint, color and finish of the facility in good condition at all times.

40.41. All improvements, including foundations, and appurtenant ground wires, shall be removed from the property and the site restored to its original pre-installation conditions within 90 days of cessation of operation or abandonment of the facility.

41.42. Build-Out Conditions.
a. Permittee shall not commence any excavation,
construction, installation or other work on the project site until and unless it demonstrates to the City Public Works Department that the project complies with all generally applicable laws, regulations, codes and other rules related to public health and safety, including without limitation all applicable provisions in California Public Utilities
Commission General Order 95 and MMC Chapters 8.12,

8.24 and 15.08.
b. To the extent that the pole owner requires greater or more restrictive standards than contained in California Public Utilities Commission General Order 95, those standards
shall control.

42.43. Permittee shall at all times maintain compliance with all applicable federal, State and local laws, regulations, ordinances and other rules, including Americans with Disabilities Act (ADA)
requirements.

43.44. The permittee shall cooperate with all inspections. The City and its designees reserves the right to support, repair, disable or remove any elements of the facility in emergencies or when the facility threatens imminent harm to persons or property.

44.45. Permittee shall at all times maintain accurate contact information for all parties responsible for the facility, which shall include a phone number, street mailing address and email address for at least one natural person. All such contact information for responsible parties shall be provided to the Planning Department at the time of permit issuance and within one business day of permittee’s receipt of City staff’s written request.

45.46. Permittee shall undertake all reasonable efforts to avoid undue adverse impacts to adjacent properties and/or uses that may arise Attachment 2
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from the construction, operation, maintenance, modification and removal of the facility.

46.47. The site and the facility must be maintained in a neat and clean manner and in accordance with all approved plans and conditions of approval.

47.48. Permittee shall promptly remove any graffiti on the wireless facility at permittee’s sole expense within 48 hours after notice.

Prior to Operation

48.49. The applicant shall request a final Planning Department inspection immediately after the wireless facility has been installed and prior to the commencement of services and final electrical inspection by the City of Malibu Environmental Sustainability Department.

49.50. Within thirty (30) calendar days following the installation of any wireless facilities, the applicant shall provide to the Planning Department with a field report prepared by a qualified engineer verifying that the unit has been inspected, tested, and is operating in compliance with FCC standards. Specifically, the on-site postinstallation radiofrequency (RF) emissions testing must demonstrate actual compliance with the FCC OET Bulletin 65 RF emissions safety guidelines for general population/uncontrolled RF exposure in all sectors. For this testing, the transmitter shall be operating at maximum operating power, and the testing shall occur outwards to a distance where the RF emissions no longer exceed the uncontrolled/general population limit. Such report and documentation shall include the make and model (or other identifying information) of the unit tested, the date and time of the inspection, a certification that the unit is properly installed and working within applicable FCC limits, and a specific notation of the distance from the transmitter at which the emissions are equal to or less than the uncontrolled/general population limit.

50.51. The operation of the approved facility shall commence no later than one (1) month after the City completes its post-installation inspection of the facility, any issues with the facility are resolved, and the City receives the RF testing report required in the condition of approval above, or the wireless ROW permit will expire without further action by the City.

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Fixed Conditions

51.52. Violation of any of the conditions of this approval shall be cause for revocation and termination of all rights thereunder.

Eligible Facilities Requests
In addition to all of the other conditions of approval placed on a WRP, all permits for an eligible facilities request under MMC Chapter 12.02 shall be subject to the following additional conditions, unless modified by the approving authority:

52.53. Any permit granted in response to an application qualifying as an eligible facilities request shall be subject to the terms and conditions of the underlying permit.

53.54. The City’s grant or grant by operation of law of an eligible facilities request permit constitutes a federally-mandated modification to the underlying permit or approval for the subject tower or base station. Notwithstanding any permit duration established in another permit condition, the City’s grant or grant by operation of law of a eligible facilities request permit will not extend the permit term for the underlying permit or any other underlying regulatory approval, and its term shall be coterminous with the underlying permit or other regulatory approval for the subject tower or base station.

54.55. The City’s grant or grant by operation of law of an eligible facilities request does not waive, and shall not be construed to waive, any standing by the City to challenge Section 6409(a) of the Spectrum Act, any FCC rules that interpret Section 6409(a) of the Spectrum Act, or any modification to Section 6409(a) of the Spectrum Act.

Small Cell Facilities
In addition to the other conditions of approval placed on a WRP, all permits for a small cell facility under MMC Chapter 12.02 shall be subject to the following additional condition, unless modified by the approving authority:

55.56. The City’s grant of a permit for a small cell facility request does not waive, and shall not be construed to waive, any standing by the city to challenge any FCC orders or rules related to small cell facilities, or any modification to those FCC orders or rules.

Attachment 2
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 80, Packet Page 248 Resolution No. 20-65

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SECTION 11. Environmental Review
This Resolution is not a project within the meaning of Section 15378 of the State of California Environmental Quality Act (CEQA) Guidelines, because it has no potential for resulting in physical change in the environment, directly or indirectly. The Resolution does not authorize any specific development or installation on any specific piece of property within the City’s boundaries. Moreover, when and if an application for installation is submitted, the City will at that time conduct preliminary review of the application in accordance with CEQA. Alternatively, even if the Resolution is a “project” within the meaning of State CEQA Guidelines section 15378, the Resolution is exempt from CEQA on multiple grounds. First, the Resolution is exempt CEQA because the City Council’s adoption of the Resolution is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. (State CEQA Guidelines, § 15061(b)(3)). That is, approval of the Resolution will not result in the actual installation of any facilities in the City. In order to install a facility in accordance with this Resolution, the wireless provider would have to submit an application for installation of the wireless facility. At that time, the City will have specific and definite information regarding the facility to review in accordance with CEQA. And, in fact, the City will conduct preliminary review under CEQA at that time. Moreover, in the event that the Resolution is interpreted so as to permit installation of wireless facilities on a particular site, the installation would be exempt from CEQA review in accordance with either State CEQA Guidelines section 15302 (replacement or reconstruction), State CEQA Guidelines section 15303 (new construction or conversion of small structures), and/or State CEQA Guidelines section 15304 (minor alterations to land).

SECTION 12. This Resolution will become effective immediately upon adoption.

SECTION 13. The City Clerk shall certify to the passage and adoption of this resolution and enter it into the book of original resolutions.

PASSED, APPROVED, and ADOPTED this 9th day of December 2020. _____________________________
MIKKE PIERSON, Mayor
ATTEST:
___________________________
HEATHER GLASER, City Clerk
(seal)
APPROVED AS TO FORM:
_____________________________
CHRISTI HOGIN, City Attorney
Attachment 2
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 81, Packet Page 249 2/14/23, 4:01 PM Chapter 17.46 WIRELESS TELECOMMUNICATIONS ANTENNAS AND FACILITIES https://library.qcode.us/lib/malibu_ca/pub/municipal_code/item/title_17-chapter_17_46?view=all#title_17-chapter_17_46-17_46_080 1/15 Malibu, California Municipal Code
Title 17 ZONING
Chapter 17.46 WIRELESS TELECOMMUNICATIONS ANTENNAS

AND FACILITIES
Alert: This item has been affected by: Ordinance 484. Visit the CodeAlert page for more information on pending legislation.

17.46.010 Purpose and objectives.

17.46.020 Site plan review.

17.46.030 Conditional use permit.

17.46.040 Definitions.

17.46.050 Health and safety.

17.46.060 General requirements.

17.46.070 Most restrictive design criteria.

17.46.080 Standard conditions of approval.

17.46.090 Locating antennas at existing sites.

17.46.100 Minimum application requirements.

17.46.110 Preferred antenna siting and mounting techniques.

17.46.120 Location.

17.46.130 Indemnity and liability for damages.

17.46.140 Cessation of use or abandonment.

17.46.150 Permit, review, renewal and revocation procedure.

17.46.160 Exempt telecommunications facilities.
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Attachment 2
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 82, Packet Page 250 2/14/23, 4:01 PM Chapter 17.46 WIRELESS TELECOMMUNICATIONS ANTENNAS AND FACILITIES https://library.qcode.us/lib/malibu_ca/pub/municipal_code/item/title_17-chapter_17_46?view=all#title_17-chapter_17_46-17_46_080 2/15

17.46.010 Purpose and objectives.

Alert: This item has been affected by: Ordinance 484. See the CodeAlert page for details on recent amendments and newly-added provisions.

A. Purpose. The purpose and intent of this chapter is to provide a uniform and comprehensive set of standards for the development, siting and installation of wireless communication facilities and antennas. The regulations contained herein are designed to protect and promote the public health, safety and community welfare and the aesthetic quality of the city as set forth within the goals, objectives and policies of the general plan, while at the same time providing for managed development of wireless communications infrastructure in accordance with the guidelines and intent of the Telecommunications Act of 1996.

B. Objectives. Recognizing the city’s roles as regulator, service provider, facilitator and user, it is intended that the city shall apply these regulations in furtherance of the following goals and policy objectives, including but not limited to:

1. To retain control of private and public property within the confines of state and federal legislation to regulate wireless telecommunications services.

2. To facilitate the creation of an advanced wireless telecommunications infrastructure for citizens, businesses, industries and schools.

3. To protect the city from potential adverse effects of wireless telecommunications facility development.

4. Ensure that the wireless telecommunications infrastructure is designed to enhance and not interfere with the city’s emergency response network. (Ord. 253 § 4, 2003; Ord. 155 § 18, 1996; prior code § 9320)

17.46.020 Site plan review.

Alert: This item has been affected by: Ordinance 484. See the CodeAlert page for details on recent amendments and newly-added provisions.
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Attachment 2
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 83, Packet Page 251 2/14/23, 4:01 PM Chapter 17.46 WIRELESS TELECOMMUNICATIONS ANTENNAS AND FACILITIES https://library.qcode.us/lib/malibu_ca/pub/municipal_code/item/title_17-chapter_17_46?view=all#title_17-chapter_17_46-17_46_080 3/15 A site plan review permit, pursuant to Section 17.62.040, shall be obtained prior to erecting a wireless telecommunications antenna and/or facility in any non-residential zoning district (except for the public open space and recreational vehicle park zoning districts) or in any public right-of-way regardless of zoning district, if such wireless telecommunications antenna and/or facility complies with the general requirements set forth in Section 17.46.060 and the most restrictive design standards set forth in Section

17.46.070. In addition to the site plan review permit, an encroachment permit shall be obtained for all wireless telecommunication antennas and facilities to be located in any public right-of-way. (Ord. 253 § 4, 2003; Ord. 155 § 18, 1996; prior code § 9321)

17.46.030 Conditional use permit.

Alert: This item has been affected by: Ordinance 484. See the CodeAlert page for details on recent amendments and newly-added provisions.

A conditional use permit, pursuant to Chapter 17.66, shall be obtained prior to erecting wireless telecommunication antennas and/or facilities within any rural residential, public open space, or recreational vehicle park zoning districts (unless the antenna and/or facility is to be erected in a public right-of-way and it complies with the general requirements set forth in Section 17.46.060 and the most restrictive design standards set forth in Section 17.46.070), or within any other non-residential zoning district if the proposed wireless telecommunications antenna and/or facility does not comply with the most restrictive design standards set forth in Section 17.46.070. Any wireless telecommunication antennas and/or facilities conditionally approved pursuant to this section shall comply with the general requirements set forth in Section 17.46.060. The conditional use permit shall be reviewed by the city based solely upon the location, design and other criteria of this chapter, as well as for consistency with the general plan and the health, safety and welfare of the public. (Ord. 253 § 4, 2003; Ord. 155 § 18, 1996; prior code § 9322)

17.46.040 Definitions.

Alert: This item has been affected by: Ordinance 484. See the CodeAlert page for details on recent amendments and newly-added provisions.
“ANSI/IEEE standards” means American National Standards Institute. A private organization that develops widely accepted standards for many pieces of modern day equipment. “Antenna” means a typically metallic device used for radiating or receiving radio waves. “Antenna, building mounted sites” means antennas which are located and/or mounted on an existing building’s exterior walls.
“Antenna equipment” means a cabinet, room, or similar structure which houses the electronic facilities used to operate an antenna.
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Attachment 2
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 84, Packet Page 252 2/14/23, 4:01 PM Chapter 17.46 WIRELESS TELECOMMUNICATIONS ANTENNAS AND FACILITIES https://library.qcode.us/lib/malibu_ca/pub/municipal_code/item/title_17-chapter_17_46?view=all#title_17-chapter_17_46-17_46_080 4/15 “Antenna, ground mounted sites” means antennas which are located and/or mounted on a pole, attached to the ground level and are, otherwise, freestanding. These antennas do not use a building or ancillary structures for mounting purposes.
“Antenna height” means the vertical distance from the existing or proposed grade, whichever is lower, to the top of the antenna or its support structure. “Antenna, Roof-Mounted” means an antenna, and its associated support structure, that is attached to a roof of a building or similar structure.
“Personal Communication Services (PCS)” is Federal Communication Commission (FCC) terminology describing intelligent, digital wireless, personal two-way communication systems. A broad range of telecommunications services that enable people and devices to communicate independent of location. PCS networks and devices operate over a wide range of frequencies assigned and authorized by the FCC.
“Wireless telecommunications antennas” means a device used to transmit and/or receive radio or electromagnetic waves between terrestrial and/or orbital based systems, including but not limited to directional, omni-directional and parabolic antennas. This excludes non-commercial antennas, radio and television signals, and non-commercial satellite dishes. “Wireless telecommunications facilities” means an installation that sends and/or receives radio frequency signals, including but not limited to directional, omnidirectional and parabolic antennas, structures or towers to support receiving and/or transmitting devices, cabinets, equipment rooms, accessory equipment and other structures, and the land or structure on which they are all situated. The term does not include mobile transmitting devices, such as vehicle or hand held radios/telephones and their associated transmitting antennas. (Ord. 253 § 4, 2003; Ord. 155 § 18, 1996; prior code § 9323)

17.46.050 Health and safety.

Alert: This item has been affected by: Ordinance 484. See the CodeAlert page for details on recent amendments and newly-added provisions.

A. No wireless telecommunications facility shall be sited or operated in such a manner that it poses, either by itself or in combination with other such facilities, a potential threat to public health. To that end, no facility or combination of facilities shall produce at any time power densities in any inhabited area that exceed the FCC’s Maximum Permissible Exposure (MPE) limits for electric and magnetic field strength and power density for transmitters or any more restrictive standard subsequently adopted or promulgated by the city, county, the State of California, or the federal government.

B. Failure to remain in continued compliance with the MPE limits shall be grounds for revocation of the discretionary permit. (Ord. 253 § 4, 2003; Ord. 155 § 18, 1996; prior code § 9324)

17.46.060 General requirements.
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Attachment 2
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 85, Packet Page 253 2/14/23, 4:01 PM Chapter 17.46 WIRELESS TELECOMMUNICATIONS ANTENNAS AND FACILITIES https://library.qcode.us/lib/malibu_ca/pub/municipal_code/item/title_17-chapter_17_46?view=all#title_17-chapter_17_46-17_46_080 5/15 Alert: This item has been affected by: Ordinance 484. See the CodeAlert page for details on recent amendments and newly-added provisions.

The following general requirements apply at all times to all wireless telecommunications facilities located in all zoning districts:

A. Each facility must comply with any and all applicable provisions of the Malibu Municipal Code, including but not limited to provisions of the Uniform Building Code, National Electric Code, Uniform Plumbing Code, Uniform Mechanical Code, and Uniform Fire Code, and any conditions of approval imposed as part of the approval process.

B. Each facility must comply with any and all applicable regulations and standards promulgated or imposed by any state or federal agency, including, but not limited to, the Federal Communications Commission and the Federal Aviation Administration.

C. The facility must at all times comply with all applicable health requirements and standards pertaining to radio frequency emissions.

D. Interference with city communications systems is prohibited. All proposed facility applications shall include reports, as required by the Los Angeles County Fire Department, to evaluate potential interference. The applicant shall be responsible for any costs incurred by the city, including the costs of retaining consultants, to review and analyze the reports.

E. Freestanding wireless telecommunication facilities, including towers, lattice towers, and monopoles, shall not exceed twenty-eight (28) feet in height and shall not extend higher than the top of the ridgeline nearest the antenna. The height of a freestanding facility shall be measured from the natural undisturbed ground surface below the center of the base of the tower itself to the tip of the highest antenna or piece of equipment attached thereto.

F. Building-mounted wireless telecommunication facilities shall not exceed twenty-eight (28) feet in height. However, antenna elements, mounted flush on the facade of an existing structure that exceeds twenty-eight (28) feet, may have a height equal to the height of the building. Roof-mounted antennas may extend no more than three feet above the roof from which they are attached. Associated roofmounted equipment cabinets shall not extend more than five feet above the roof from which it is attached and shall be set back a minimum of ten (10) feet from the edge of the roof. All roof- mounted equipment cabinets shall be located behind a mechanical screen wall. In the event that a roof parapet wall screens the equipment cabinets, a mechanical screen wall will not be required.

G. Not more than one ground-mounted antenna site, excluding licensed amateur radio station antennas, shall be permitted on each site.

H. Wireless telecommunication facilities and antennas shall be co-located on existing poles or other facilities when possible. No permittee shall restrict access to an existing antenna location if required to co-locate by the city, and if possible to do so. 
Attachment 2
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 86, Packet Page 254 2/14/23, 4:01 PM Chapter 17.46 WIRELESS TELECOMMUNICATIONS ANTENNAS AND FACILITIES https://library.qcode.us/lib/malibu_ca/pub/municipal_code/item/title_17-chapter_17_46?view=all#title_17-chapter_17_46-17_46_080 6/15 I. All electrical support equipment located within cabinets, shelters, or similar structures shall be screened from public view. Roof-mounted electrical support equipment shall be discouraged. Groundmounted electrical support equipment shall be encouraged. In addition, under grounding of support equipment is required wherever practicable.

J. When possible, wireless telecommunication facilities will be located on existing utility poles provided the antennas do not exceed the height of the utility poles and provided a less intrusive alternative is not available.

K. All antennas shall meet the minimum siting distances to habitable structures required for compliance with Federal Communications Commission (FCC) regulations and standards governing the environmental effects of radio frequency emissions.

L. All antennas shall be located such that any person walking adjacent to the transmitting surface of the antenna will be walking on a grade that is a minimum of eight and one-half feet below the transmitting surface.

M. Lighting of antenna structures and their electrical support equipment is prohibited, except as required by any order or regulation of the Federal Communications Commission (FCC) or the Federal Aviation Administration (FAA) and except for manually operated emergency lights for use when official operating personnel are on site.

N. No wireless telecommunication facility shall be located within five hundred (500) feet of any school ground, playground or park unless a finding is made, based on technical evidence acceptable to the planning manager, as appropriate, showing a clear need for the facility and that no technically feasible alternative site exists.

O. Except for facilities co-located on the same pole or tower; wireless telecommunication facilities located within any residential zone district, except for those facilities placed on utility poles located along Pacific Coast Highway, shall not be located within six hundred (600) feet of any other wireless telecommunications facility, unless a finding is made, based on technical evidence acceptable to the planning manager, as appropriate, showing a clear need for the facility and that no technically feasible alternative site exists. This provision shall not apply to wireless telecommunication facilities located within any commercial zone district. (Ord. 253 § 4, 2003; Ord. 155 § 18, 1996; prior code § 9325)

17.46.070 Most restrictive design criteria.

Alert: This item has been affected by: Ordinance 484. See the CodeAlert page for details on recent amendments and newly-added provisions.

In addition to all other requirements set forth in this chapter, all wireless telecommunications facilities shall meet the following design requirements:
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Attachment 2
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 87, Packet Page 255 2/14/23, 4:01 PM Chapter 17.46 WIRELESS TELECOMMUNICATIONS ANTENNAS AND FACILITIES https://library.qcode.us/lib/malibu_ca/pub/municipal_code/item/title_17-chapter_17_46?view=all#title_17-chapter_17_46-17_46_080 7/15 A. Facade-mounted antennas and equipment shall be architecturally integrated into the building design and otherwise made as unobtrusive as possible. If possible, antennas should be located entirely within an existing or newly created architectural feature so as to be completely screened from view.

Facade-mounted facilities shall generally not extend more than eighteen (18) inches out from the building face.

B. Ground-mounted wireless telecommunication facilities shall be located near existing structures or trees at similar heights for screening purposes where feasible.

C. All wireless telecommunication facilities shall be designed to minimize the visual impact to the greatest extent feasible by means of placement, screening, camouflaging, painting and texturing and to be compatible with existing architectural elements, building materials and other site characteristics. The applicant shall use the smallest and least visible antennas possible to accomplish the coverage objectives.

D. All antennas and support structures shall be painted and/or textured to achieve architectural compatibility with the structures for which they are attached and/or located. If ground mounted, the antennas and support structure shall be painted, textured, landscaped or otherwise camouflaged as much as possible to integrate the structure into the environment. Colors and materials for facilities shall be non-reflective and chosen to minimize visibility to the greatest extent feasible.

E. All wireless telecommunication facilities shall be designed to prevent unauthorized climbing.

F. Roof-mounted antennas and necessary equipment shall be screened from above if visible from higher elevations.

G. Satellite dish or parabolic antennas shall be situated as close to the ground as possible to reduce visual impact without compromising their function.

H. Where appropriate, facilities shall be installed so as to maintain and enhance existing landscaping on the site, including trees, foliage and shrubs, whether or not utilized for screening.

I. All monopoles and lattice towers shall be designed to be the minimum functional height and width required to support the proposed antenna installation. Freestanding monopoles in highly visible locations shall incorporate stealth techniques to minimize their prominence.

J. Support equipment pads, cabinets, shelters and buildings require architectural, landscape, color, fencing, or other camouflage treatment to minimize visual impacts to the extent deemed necessary by the Planning Manager. Landscaping screening should also be provided if irrigation water is available.

K. No freestanding facility such as a monopole, lattice tower, or similar structure including ancillary support equipment may be located between the face of a building and a public street, bikeway or park.

L. No wireless telecommunications facility shall emit a noise greater than fifty (50) decibels (dB) as measured from the base of the facility. (Ord. 253 § 4, 2003; Ord. 155 § 18, 1996; prior code § 9326)

17.46.080 Standard conditions of approval.

Attachment 2
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 88, Packet Page 256 2/14/23, 4:01 PM Chapter 17.46 WIRELESS TELECOMMUNICATIONS ANTENNAS AND FACILITIES https://library.qcode.us/lib/malibu_ca/pub/municipal_code/item/title_17-chapter_17_46?view=all#title_17-chapter_17_46-17_46_080 8/15 Alert: This item has been affected by: Ordinance 484. See the CodeAlert page for details on recent amendments and newly-added provisions.

Each wireless telecommunications antenna and/or facility which is approved through either the site plan review process or a conditional use permit shall be subject to the following standard conditions of approval, in addition to any other condition deemed appropriate by the reviewing authority:

A. The wireless telecommunications antenna and/or facility shall be erected, operated, and maintained in compliance with the general requirements of Section 17.46.060 and, if applicable, with the most restrictive design standards set forth in Section 17.46.070.

B. Within thirty (30) calendar days following the installation of any wireless telecommunications antenna and/or facility, the applicant shall provide FCC documentation to the planning manager that the unit has been inspected and tested in compliance with FCC standards. Such documentation shall include the make and model (or other identifying information) of the unit tested, the date and time of the inspection, and a certification that the unit is properly installed and working within applicable FCC standards.

C. The installation of any wireless telecommunications antenna and/or facility shall be in compliance with all applicable state and local building, electrical, and mechanical codes.

D. Any substantial change in the type of antenna and/or facility installed in a particular location shall require the prior approval of the planning manager.

E. The applicant shall pay to the city a permit compliance fee in an amount to be established by resolution of the city council.

F. Co-location of wireless telecommunications antennas and facilities pursuant to Section

17.46.090 shall be required whenever it is feasible to do so. (Ord. 253 § 4, 2003; Ord. 155 § 18, 1996; prior code § 9327)

17.46.090 Locating antennas at existing sites.

Alert: This item has been affected by: Ordinance 484. See the CodeAlert page for details on recent amendments and newly-added provisions.

An effort should be made to locate new wireless telecommunications antennas and facilities on existing grandfathered or conforming facilities when feasible. (Ord. 253 § 4, 2003; Ord. 155 § 18, 1996; prior code § 9328)

17.46.100 Minimum application requirements.

Alert: This item has been affected by: Ordinance 484. See the CodeAlert page for details on recent amendments and newly-added provisions.
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Attachment 2
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 89, Packet Page 257 2/14/23, 4:01 PM Chapter 17.46 WIRELESS TELECOMMUNICATIONS ANTENNAS AND FACILITIES https://library.qcode.us/lib/malibu_ca/pub/municipal_code/item/title_17-chapter_17_46?view=all#title_17-chapter_17_46-17_46_080 9/15 In addition to meeting standard application submittal requirements for discretionary permits, detailed in other chapters in this title, all wireless telecommunication facility carriers or providers shall provide the information listed below. As used herein, “Wireless telecommunication facility”, “wireless facility”, “telecommunication facility”, or simply “facility”, means an installation that sends and/or receives radio frequency signals, including but not limited to directional, omnidirectional and parabolic antennas, structures or towers to support receiving and/or transmitting devices, cabinets, equipment rooms, accessory equipment and other structures, and the land or structure on which they are all situated. The term does not include mobile transmitting devices, such as vehicle or hand held radios/telephones and their associated transmitting antennas. The planning manager may waive certain submittal requirements or require additional information based on specific project factors.

A. Visual impact demonstration. A visual impact analysis shall be provided showing the maximum silhouette and proposed or required screening. The visual impact analysis shall include photo simulations and any required photo overlays, scaled models or architectural renderings necessary to determine visual impact. A map depicting where the photos were taken shall be included.

B. Narrative. The applicant shall submit a narrative that addresses each of the following paragraphs and subparagraphs. The narrative shall be organized according to subject headings that match those in the paragraphs and subparagraphs listed below.

1. Antennas/Equipment. List the number of proposed antennas and base transceiver stations and/or equipment cabinets and any existing facilities on the site. As used herein, “Antenna” means a device used to transmit and/or receive radio or electromagnetic waves between terrestrial and/or orbital based systems.

2. Location. Describe the location and type of antenna installations (stand-alone rooftop, rooftop attached to a mechanical penthouse, building façade, or existing utility towers and poles) and location of the base transceiver station(s), equipment cabinets and/or buildings.

3. Height. List the height of the antenna installation. Carriers must provide documentation that establishes that the proposed facilities have been designed to the minimum height required from a technological standpoint for the proposed site.

4. Radio frequency. List the radio frequency range in megahertz and list the wattage output of the equipment.

5. Radio frequency emissions. Provide a report listing the effective radiated power generated by the proposed facility. The report shall identify exposure levels for both controlled and uncontrolled areas where the levels are projected to be highest.

6. FCC compliance. Provide documentation certifying all applicable licenses or other approvals required by the Federal Communications Commission to provide the services proposed have been obtained.

7. Maintenance. Describe the anticipated maintenance and monitoring program for the facility.

Attachment 2
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 90, Packet Page 258 2/14/23, 4:01 PM Chapter 17.46 WIRELESS TELECOMMUNICATIONS ANTENNAS AND FACILITIES https://library.qcode.us/lib/malibu_ca/pub/municipal_code/item/title_17-chapter_17_46?view=all#title_17-chapter_17_46-17_46_080 10/15

8. Noise/acoustical information. Provide noise and acoustical information for equipment such as air conditioning units and back-up generators.

9. Site selection process. Provide a map and narrative description explaining the site selection process including information about other sites considered and reason for their rejection. This information is necessary to determine whether there will be a significant gap in coverage if the project is not approved or whether alternatives exist for providing coverage.

10. Geographic service area. Identify the geographic service area for the subject installation, including a map showing the site and the associated “next” cell sites within the network. Describe the distance between cell sites. Describe how this service area fits into and is necessary for the company’s service network. Illustrate the geographic area in which the facility could be located showing all other sites that could be used for antenna location. This information is necessary to determine whether there will be a significant gap in coverage if the project is not approved or whether alternatives exist for providing coverage.

11. Preferred location sites. Each application shall identify the location preference, listed in Section

17.46.120 that the proposed facility is meeting. If the proposed location is not a preferred location, the applicant shall provide a list (by address and Assessor’s Parcel Number) and a map at 1:200 scale of all preferred location sites within the service area; what good faith efforts and measures were taken to secure each other of these preferred location sites; describe why each such site was not technologically, legally or economically feasible and why such efforts were unsuccessful; how and why the proposed site is essential to meet service demands for the geographic service area and the citywide network. This information is necessary to determine whether there will be a significant gap in coverage if the project is not approved or whether alternatives exist for providing coverage.

12. Preferred mounting technique. Each applicant shall identify the antenna mounting preference, listed in Section 17.46.110 the proposed facility is meeting. If the proposed mounting technique is not a preferred technique, the applicant shall provide a list (by address and Assessor’s Parcel Number) and a map at 1:200 scale of all such buildings/sites within the service area; what good faith efforts and measures were taken to secure each of these preferred mounting location/sites; describe why each such site was not technologically or legally feasible and why such efforts were unsuccessful; and how and why the proposed site is essential to meet service demands for the geographic service area and the citywide network.

13. Cumulative effects. Identify the location of all the applicant’s antennas and backup facilities and location of other wireless telecommunications facilities on and near the property; include the following:
a. Height. The height of all existing and proposed wireless telecommunications facilities on the property, shown in relation to the height limit for the zoning district; b. Antennas. The dimension of each existing and proposed antenna, base transceiver station, equipment cabinet and associated building and backup equipment on the property; c. Power rating. The power rating for all existing and proposed backup equipment; Attachment 2
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 91, Packet Page 259 2/14/23, 4:01 PM Chapter 17.46 WIRELESS TELECOMMUNICATIONS ANTENNAS AND FACILITIES https://library.qcode.us/lib/malibu_ca/pub/municipal_code/item/title_17-chapter_17_46?view=all#title_17-chapter_17_46-17_46_080 11/15 d. Total watts. The total number of watts per installation and the total number of watts for all installations on the building (roof or side);
e. Facilities within five hundred (500) feet. The number and types of wireless telecommunication facilities within five hundred (500) feet of the proposed site and provide estimates of the cumulative electromagnetic radiation emissions at the proposed site.

C. Co-location agreement. All wireless telecommunications carriers shall provide a letter stating their willingness to allow other carriers to co-locate on their facilities wherever technically feasible. When determined to be technically feasible and appropriate, the planning manager may require unutilized space to be made available for co-location of other wireless telecommunications facilities, including space for entities providing similar, competing services. Co-location is not required in cases where the addition of the new service or facilities would cause quality of service impairment to the existing facility or if it becomes necessary for the host to go off-line for a significant period of time. As used herein, “Colocation” means an arrangement whereby multiple wireless communication devices share the same structure or site.

D. Planned facilities. The applicant shall provide a list of planned or anticipated facilities within the city, and their anticipated construction schedules. The planning manager may require concurrent processing of planned facilities.

E. Independent consultant. At the discretion of the planning manager and as reasonably required, the applicant may be required to provide an authorization waiver to permit the city to hire an independent, qualified consultant to evaluate any technical aspect of the proposed telecommunications facility, including, but not limited to, compliance with applicable federal emission standards, potential for interference with existing or planned public safety emergency response telecommunications facilities, or analysis of feasibility of alternate sites, screening methods or devices. Any authorization for this purpose shall include an agreement by the applicant to reimburse the city for all reasonable costs associated with the consultation. Any proprietary information disclosed to the city or the consultant is hereby deemed not be a public record, shall remain confidential, and not be disclosed to any third party without the express consent of the applicant.

F. Other information. Any other relevant information as required by the planning manager. (Ord. 253 § 4, 2003)

17.46.110 Preferred antenna siting and mounting techniques.

Alert: This item has been affected by: Ordinance 484. See the CodeAlert page for details on recent amendments and newly-added provisions.

The following antenna and equipment siting and mounting techniques are preferred:

A. Facade mounted antennas that meet the visual requirements specified in this title.

B. Roof mounted antennas that are not visible to the public.

C. Existing monopoles or freestanding towers, utilizing stealthing techniques. 
Attachment 2
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 92, Packet Page 260 2/14/23, 4:01 PM Chapter 17.46 WIRELESS TELECOMMUNICATIONS ANTENNAS AND FACILITIES https://library.qcode.us/lib/malibu_ca/pub/municipal_code/item/title_17-chapter_17_46?view=all#title_17-chapter_17_46-17_46_080 12/15 D. Existing utility poles located within the public right-of-way.

E. Monopoles or freestanding towers that utilize stealthing techniques. (Ord. 253 § 4, 2003)

17.46.120 Location.

Alert: This item has been affected by: Ordinance 484. See the CodeAlert page for details on recent amendments and newly-added provisions.

Location preference for wireless communications facilities should be given to:

A. Co-location sites. Co-located and multiple-user wireless telecommunications facilities will be required when, in the determination of the planning manager, it is technically feasible and appropriate and will minimize overall visual impact to the community.

B. Property designated non-residential (except for public open space and recreational vehicle park zoning districts), unless otherwise prohibited pursuant to this title.

C. Facilities attached or sited adjacent to existing structures. Whenever possible, facilities shall be located on and/or inside existing structures. Appropriate types of existing structures may include, but are not limited to: buildings, water tanks, telephone poles and utility towers and poles, sign standards, traffic signals, light standards and roadway overpasses.

D. Sites that are not highly visible from adjacent roadways.

E. Sites with minimum separation. When co-location is determined to be infeasible by the planning manager, sites that are more than five hundred (500) feet from school grounds, playgrounds or parks and which are more than four hundred fifty (450) feet from any other existing wireless facility within any residential zone district, except for those facilities placed on utility poles located along Pacific Coast Highway.

F. Unless otherwise indicated in this title, no telecommunication facility shall be installed on an exposed ridgeline unless the facility blends with the surrounding existing natural and man-made environment and a finding is made that no other location is technically feasible. (Ord. 253 § 4, 2003)

17.46.130 Indemnity and liability for damages.

Alert: This item has been affected by: Ordinance 484. See the CodeAlert page for details on recent amendments and newly-added provisions.
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Attachment 2
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 93, Packet Page 261 2/14/23, 4:01 PM Chapter 17.46 WIRELESS TELECOMMUNICATIONS ANTENNAS AND FACILITIES https://library.qcode.us/lib/malibu_ca/pub/municipal_code/item/title_17-chapter_17_46?view=all#title_17-chapter_17_46-17_46_080 13/15 A. The wireless telecommunications facility provider shall defend, indemnify, and hold harmless the city or any of its boards, commissions, agents, officers, and employees from any claim, action or proceeding against the city, its boards, commission, agents, officers, or employees to attack, set aside, void, or annul, the approval of the project when such claim or action is brought within the time period provided for in applicable state and/or local statues. The city shall promptly notify the provider(s) of any such claim, action or proceeding if the city bears its own attorney’s fees and costs, and the city defends the action in good faith.

B. Wireless telecommunications facility operators shall be strictly liable for interference caused by their facilities with city communications systems. The operator shall be responsible for costs for determining the source of the interference, all costs associated with eliminating the interference (including but not limited to filtering, installing cavities, installing directional antennas, powering down systems, and engineering analysis), and all costs arising from third party claims against the city attributable to the interference. (Ord. 253 § 4, 2003)

17.46.140 Cessation of use or abandonment.

Alert: This item has been affected by: Ordinance 484. See the CodeAlert page for details on recent amendments and newly-added provisions.

All improvements, including foundations and appurtenant ground wires, shall be removed from the property and the site restored to its original pre-installation condition within ninety (90) days of cessation of operation or abandonment of the facility. (Ord. 253 § 4, 2003)

17.46.150 Permit, review, renewal and revocation procedure.

Alert: This item has been affected by: Ordinance 484. See the CodeAlert page for details on recent amendments and newly-added provisions.

A. The city finds that the technology associated with telecommunications equipment is subject to rapid changes and upgrades as a result of industry competition and customer demands, and anticipate that telecommunications antennas and related equipment with reduced visual impacts will be available from time to time with comparable or improved coverage and capacity capabilities. The city further finds that it is in the interest of the public health, safety, and welfare that telecommunications providers be required to replace older facilities with newer equipment of equal or greater capabilities and reduced visual impacts as technological improvements become available. Therefore, any modifications requested to an existing facility for which a permit issued pursuant to this title authorizing establishment of a wireless telecommunications facility shall permit the planning manager to review the carrier’s existing facility to determine whether requiring newer equipment or applying new screening techniques that reduce visual impacts is appropriate if technically feasible. 
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Attachment 2
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 94, Packet Page 262 2/14/23, 4:01 PM Chapter 17.46 WIRELESS TELECOMMUNICATIONS ANTENNAS AND FACILITIES https://library.qcode.us/lib/malibu_ca/pub/municipal_code/item/title_17-chapter_17_46?view=all#title_17-chapter_17_46-17_46_080 14/15 B. At any time, the planning manager may initiate proceedings to revoke a permit issued pursuant to this title. Grounds for revocation shall be limited to a finding that the owner or operator has abandoned the facility, the facility is no longer in compliance with either the general requirements or design standards of this title, the conditions of approval and the owner or operator has failed to bring the facility into compliance within ninety (90) days after a notice has been sent by the planning manager requiring the facility to be brought into compliance, the facility is no longer in compliance with applicable FCC or FAA regulations, the facility has not been upgraded to reduce or minimize its impact to the extent reasonably permitted by the technology available at the time of any requested modifications, or if the planning manager determines that revocation would be in the best interest of the public health, safety, or welfare. (Ord. 253 § 4, 2003)

17.46.160 Exempt telecommunications facilities.

Alert: This item has been affected by: Ordinance 484. See the CodeAlert page for details on recent amendments and newly-added provisions.

A. Installation of the following antennas and/or appurtenant equipment which complies with all applicable health requirements and standards pertaining to RF emissions is exempt from the provisions of this chapter subject to any conditions included below:

1. Antennas designed to receive video programming signals from direct broadcast satellite (DBS) services, residential fixed wireless communications, multi-channel multi-point distribution providers (MMD) or television broadcast stations in all zoning districts are exempted, provided that all of the following conditions are met:
a. The antenna is accessory to an existing use and measures thirty-nine (39) inches (one meter) or less in diameter.
b. The antenna is installed in a location where it is not readily visible from the public right-of-way. c. The antenna shall not be located within a required setback area, driveway or parking space.

2. Amateur radio antenna (including ham and short wave) provided the antenna does not exceed the maximum building height for the zoning district in which it is located by more than fifteen (15) feet.

3. Telecommunications facilities exempt from the provisions of this chapter by operation of state or federal law.

B. The determination of whether or not a proposed facility meets the requirements for an exemption is at the discretion of the planning manager. The planning manager may require that the application be processed as a site development permit or conditional use permit if the requirements of this section cannot be met. (Ord. 253 § 4, 2003)
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Attachment 2
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 95, Packet Page 263 2/14/23, 4:01 PM Chapter 17.46 WIRELESS TELECOMMUNICATIONS ANTENNAS AND FACILITIES https://library.qcode.us/lib/malibu_ca/pub/municipal_code/item/title_17-chapter_17_46?view=all#title_17-chapter_17_46-17_46_080 15/15 Contact:

City Clerk: 310-456-2489 ext. 228
Published by Quality Code Publishing, Seattle, WA. By using this site, you agree to the terms of use.

Attachment 2
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 96, Packet Page 264 RESOLUTION NO. 21-17

A RESOLUTION OF THE CITY OF MALIBU ADOPTING ENGINEERING,

DESIGN AND LOCATION STANDARDS, CONDITIONS OF APPROVAL

AND BASIC APPLICATION REQUIREMENTS FOR WIRELESS

COMMUNICATIONS FACILITIES ON LAND OTHER THAN PUBLIC
RIGHT-OF-WAY; AND FINDING THE SAME EXEMPT FROM THE

CALIFORNIA ENVIRONMENTAL QUALITY ACT
The City Council of the City of Malibu does hereby find, resolve and order as follows:

SECTION 1. Recitals
A. Malibu Municipal Code (MMC) Chapter 17.46 governs the permitting, installation, and regulation of wireless communications facilities in the City, other than those in the public right-of-way, which are subject to MMC Chapter 12.02.

B. Section 17.46.060(D) provides that “[a]ll applicants shall engineer, design and locate the wireless communications facilities in accordance with the standards and wireless regulations set forth separately though the resolution adopted by the City Council.” C. Being authorized to do so, the City wishes to establish engineering, design and development standards applicable to wireless installations.

D. The City also wishes to set standard conditions of approval and basic application requirements applicable to wireless permits.

E. On April 12, 2021 the City Council conducted a duly noticed public hearing and received testimony from City staff and all interested parties regarding the and the standards, conditions and requirements.

SECTION 2. Purpose. The purpose of this document is to (1) establish design and location standards (Standards) for wireless communications facilities on land other than public right-ofway; (2) set standard conditions of approval for Wireless Permits (WPs); and (3) set basic application requirements for WPs.

SECTION 3. Definitions. For the purposes of these Standards, the definitions set forth in Malibu Municipal Code (MMC) Section 17.46.040 are incorporated by reference into this Resolution and in addition the following definitions apply:

A. “Park” A parcel, parcels of land or a portion of a parcel intended for active public recreation uses. Parks may include sports fields, playgrounds community buildings and unique or specialized activity areas. Land dedicated for open space and trails are not considered parks for the purposes of this Chapter.

Attachment 2
Council Regular Meeting, 2/21/2023, Item No. 8., Item Page 97, Packet Page 265 Resolution No. 21-17