Staff Report. Kathleen Salguero Trepa, Assistant City Manager Laura Simpson, Planning Manager

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1 11.a Staff Report Date: September 5, 2017 To: From: Reviewed by: Prepared by: Subject: City Council Valerie J. Barone, City Manager Kathleen Salguero Trepa, Assistant City Manager Laura Simpson, Planning Manager Afshan Hamid, Senior Planner (925) Considering introduction of Ordinance No amending the Development Code by repealing and replacing Chapter Wireless Communications Facilities for New & Substantially Changed Facilities; adding Chapter Wireless Communications Facilities for Eligible Facilities Requests; and amending other sections of the Development Code and the Municipal Code to bring the regulations for Wireless Communications Facilities into compliance with Federal and State law by reading of the title only and waiving further reading. Pursuant to CEQA Guidelines Section and Public Resources Code Section 21065, the adoption of a development review process for wireless communications facilities is not a project under CEQA and/or is exempt under 15061(b)(3). Report in Brief On January 9, 2015, the Federal Communications Commission ( FCC ) issued new regulations in response to the interpretation of certain provisions of Section 6409(a) of the federal Middle Class Tax Relief and Job Creation Act of 2012 ( Section 6409 ) related to processing applications for wireless communications facilities. In brief, Page 1 of 146

2 City Council Agenda Report Agenda Item No. 11.a September 5, 2017 Section 6409 requires local jurisdictions to approve certain eligible collocations and modifications to existing wireless communications facilities. The FCC s regulations, in turn, define Section 6409 s key terms to implement Congress s broader mandate to meet the demand for more wireless services and network infrastructure. In order to address these federal regulations, staff proposes amendments to the City s existing Wireless Communications Facility regulations in the City s Development Code, which include repealing and adopting Chapter ( Wireless Communications Facilities for New & Substantially Changed Facilities ) and adopting a new Chapter ( Wireless Communications Facilities for Eligible Facilities Requests ) to address applications submitted under Section Recommended Action Introduce Ordinance No to amend the Development Code by: (1) repealing and replacing Chapter Wireless Communications Facilities for New & Substantially Changed Facilities (Attachment 1, Exhibits 1 and 1b); (2) adding Chapter Wireless Communications Facilities for Eligible Facilities Requests (Attachment 1, Exhibit 2); and (3) amending other sections of the Development Code and Municipal Code to bring the regulations into compliance with the Federal and State legislation (Attachment 1, Exhibits 3-16), by reading of the title only and waiving further reading. Background Data usage needs are expected to grow from 3.5 megabytes ( MB ) of usage per person per month to 20 MB per person by Since 2007, data usage on AT&T s network has increased more than 150,000% and Verizon Wireless is expecting a sevenfold increase in the usage of networks by Other wireless providers anticipate experiencing similar growth. The anticipated growth will drive the wireless industry to upgrade existing and install new wireless communications facilities at an increasing rate; therefore, in anticipation of new applications and processing timeframes established by the FCC, the City would benefit from creating a streamlined review process to address. Existing Wireless Communications Facilities Regulations The City s currently has regulations for wireless communications facilities are outlined in Chapter of the Development Code. However, Chapter does not currently address the new federal regulations, which require the City, in part, to provide for a streamlined administrative review process for Section 6409 applications. City staff also desires to update the City s aesthetic preferences for new wireless communications facility and modifications not covered under Section Accordingly, City staff proposes that the Council adopt a new Development Code Chapter (Chapter Wireless Communications Facilities for Eligible Facilities Requests ) to be used in processing applications for collocated or non-substantially changed facilities (under Section 6409), and amending the current code (Chapter 18 Wireless Communications Page 2 of 146

3 City Council Agenda Report Agenda Item No. 11.a September 5, 2017 Facilities for New & Substantially Changed Facilities ) to process those applications that fall outside of the definition for Section Types of Wireless Communications Facilities As there are several different types of Wireless Communications Facilities ( WCF ), staff included a description of the several broad categories of wireless communications facilities that provide network coverage and capacity below. A macro cell is used for a larger coverage radius of up to two or three miles, typically seen on free standing towers, faux trees, buildings and water tanks. A macro cell is commonly located on private property and sometimes supports more than one wireless service provider s collocated equipment. Small cell facilities are more commonly placed on buildings and in the public rights-ofway to provide increased network capacity where coverage already exists. The term small cell refers to the area of coverage as opposed to the size of the installation. The maximum size of a small cell is six cubic feet for antennas, 21 cubic feet for pole mounted equipment, and 35 cubic feet for ground-mounted equipment. For context, household refrigerators are approximately 21 cubic feet and commercial units are approximately 35 cubic feet. A third type of WCF is a distributed antenna system ( DAS ), which may be indoors ( idas ) or outdoors ( odas ). DAS facilities distribute wireless network coverage, providing for more efficient management of wireless cellular telephone and data capacity in heavily-trafficked areas. DAS has the ability to provide enhanced, consistent wireless coverage to customers in indoor and outdoor spaces where geographical or other limitations might otherwise prevent a macro cell tower installation. Whereas a small cell can provide standalone coverage and capacity as a complement to macro sites, DAS systems are essentially an extension of the macro site itself. When combined, macro cell, small cell, and DAS facilities are deployed as part of a connected network. Telecommunications Act of 1996 Section 704 of the Telecommunications Act ( TCA ) of 1996 (Public Law ) recognizes local zoning authority over WCFs, but places limitations on local jurisdictions. The TCA precludes State and local governments from enacting ordinances that prohibit telecommunications services, including wireless services. The TCA also requires that a decision on an application be made within a reasonable period of time. However, the TCA also preserved local authority over zoning decisions regarding placement, construction, and modification of WCFs. The substantive limitations of the TCA are: Local authorities cannot unreasonably discriminate against functionally equivalent service providers; Page 3 of 146

4 City Council Agenda Report Agenda Item No. 11.a September 5, Local authorities cannot actually or effectively prohibit any provider s ability to provide personal wireless services; and 2. Local authorities cannot regulate wireless facilities on the basis of radio frequency emissions to the extent that those emissions comply with the FCC s regulations. The procedural limitations of the TCA are: 1. Local authorities must act on an application for a wireless facility within a reasonable time period; and 2. Any denial of an application for a wireless facility must be in writing and based on substantial evidence in the written record. Section 6409 Eligible Facilities Requests In 2012, Congress limited local government regulation of applications to modify or collocate on existing facilities, with the adoption of the Middle Class Tax Relief and Job Creation Act establishing Section 6409(a), which states as follows: 1. A state or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station. 2. Eligible facilities requests include any request for modification of an existing wireless tower or base station that involves (1) collocation of new transmission equipment; (2) removal of transmission equipment; or (3) replacement of transmission equipment. Section 6409(a)(2) defines an eligible facilities request as a request to collocate, remove or replace transmission equipment on an existing wireless tower or base station. The term collocation means the mounting or installation of transmission equipment on an existing wireless tower or base station and the term transmission equipment broadly includes equipment that facilitates transmission for any FCClicensed or authorized wireless communications service. A tower means any structure built solely or primarily to support transmission equipment, whether it actually supports any equipment or not. In contrast, a base station means a non-tower structure in a fixed location that is approved for use as support for wireless by the local jurisdiction; and that actually supports transmission equipment at the time a collocation or modification request is submitted. In 2014, the FCC clarified the legislation by providing definitions of what constitutes transmission equipment, wireless tower or base station, collocation replacement, removal, and modification for purposes of 6409 applications. Additionally, the FCC established objective standards for substantial change as summarized below: Page 4 of 146

5 City Council Agenda Report Agenda Item No. 11.a September 5, 2017 FCC s Shot Clock Regulations The FCC mandates that a local government must act on a Section 6409 request within 60 days from the date of the application submittal (not including the timeframe for the applicant to respond to completeness items/issues, identified in writing by the City). For non-section 6409 requests, local governments must act within a reasonable time after they receive a duly filed application for a wireless project. The FCC interprets a reasonable time to mean 90 days for collocations and 150 days for all other applications (such as new facilities). If the local government fails to take any action during that period, the request is deemed approved at the time the applicant notifies the local government of the deemed approval in writing. The proposed administrative review process includes specific processing timelines or a Shot Clock that must be followed to avoid potential automatic, approval of the application. AB 57 (Government Code Section ) State Assembly Bill No. 57, enacted as Government Code Section , mirrors the FCC s rulings and regulations for reasonable time periods within which a local government is required to process an application for a WCF and also mandates that an application is deemed approved if the application is not processed within the time frame established by the FCC. Radio Frequency (RF) Emissions Regulations The FCC regulates RF emissions, and establishes comprehensive rules for maximum permissible exposure levels (the FCC Guidelines ). State and local governments cannot: (1) regulate wireless facilities based on environmental effects from RF emissions when the emissions conform to the applicable FCC Guidelines or (2) establish their own RF exposure standards whether more strict, more lenient, or even the same. However, the FCC permits local governments to require an applicant to demonstrate planned compliance with the FCC Guidelines as a prerequisite for permit approval. The FCC recommends the Local Government Official s Guide to Transmitting Page 5 of 146

6 City Council Agenda Report Agenda Item No. 11.a September 5, 2017 Antenna RF Emission Safety: Rules, Procedures, and Practical Guidance (the Local Official s Guide ) as an appropriate tool for compliance demonstrations. Analysis Proposed Chapter and Chapter of the Development Code, as described below, will include new definitions, processes, policies, and standards for the evaluation of WCFs, which are consistent and compliant with the new federal and State regulations. The proposed regulations will provide a needed tool in regulating WCFs, particularly in light of the tight timeframes and mandates included in the recent federal law. In addition, the regulations will specifically outline standards and the review process so that the installation of new WCFs can also support a connected fiber optic network within the public right-of-way, benefiting the City and the public. Staff requests that the Council review and provide feedback on the proposed changes to Chapter and of the Development Code. Following is a summary of the proposed changes: A. New and Substantially Changed Wireless Communications Facility (amended Chapter ) 1. Applicability: The proposed regulations would apply to all new or modified wireless communications facilities on private property or within the public rights-of-way. A separate section would address existing WCFs submitted for approval under Section 6409(a). 2. Permits Required: a. Administrative Permit, which is typically reviewed by the Planning Division staff, will include: WCFs installed on City-owned infrastructure in the public rightsof-way, New stealth (camouflaged) WCFs, Collocations, modifications not subject to Section 6409, and WCFs installed on electric transmission towers. b. Minor Use Permit, which is typically reviewed by the Zoning Administrator, will include: Any WCF that requires an exception, and Any WCF that is not subject to an Administrative Permit. c. Encroachment Permit in the rights-of-way. 3. Standard Conditions of Approval: Proposed standard conditions include a permit term of 10 years; one year build out period; property maintenance obligations; compliance with federal, state and local statutes; adverse impact on other properties; inspections; contact information; indemnification; performance bond permit revocation; record retention; and permit renewal. Page 6 of 146

7 City Council Agenda Report Agenda Item No. 11.a September 5, Site Location Guidelines: Approving the location of new WCF can become a controversial process in a community and the City has the ability to prioritize preferred locations based on community values. The proposed regulations identify new site characteristics and rank them from most preferred (Cityowned sites) to least preferred (residential districts). Additionally, the regulations state that discouraged sites are parcels or structures in residential zoning districts, open space, and community land districts (Open Space, Parks and Recreation, Rural Lands Conservation, Wetlands/Resource Conservation). Discouraged sites are permitted provided the findings for a minor use permit may be made. The proposed preferred and discouraged locations are outlined below: Preferred location, from most preferred to least preferred: City-owned property or City-owned utility poles or structures, Business Park and industrial areas, Existing structures in the public rights-of-way within business park and industrial districts, Parcels or structures in office and commercial districts, Existing structures in the public rights-of-way within office and commercial districts, Parcels or structures in downtown districts, Existing structures in the public rights-of-way within the downtown districts, Parcels or structures in public / quasi-public districts, and Existing structures in the public rights-of-way within public/quasi-public districts. Discouraged locations, from most discouraged to least discouraged: Parcels or structures in residential districts, Parcels or structures in open space or community land districts, and Any locations not identified in preferred section. 5. Development Standards: The design, maintenance, and operation of new WCFs can be influenced by establishing development standards for concealment, overall height, setbacks, allowable noise levels and attenuation requirements, landscaping, site security measures, back-up power, light Page 7 of 146

8 City Council Agenda Report Agenda Item No. 11.a September 5, 2017 location and levels, signage, requirements to allow future collocations, and continuing compliance with new legislation. The section also addresses wireless communications facility on existing towers and poles, buildingmounted facilities, facilities within the public rights-of-way, and design preferences. The development standards and preferences will be developed separately as part of administrative updates. The design preferences will be presented to the Design Review Board, Planning Commission, and City Council at a later time for review and input. The design preferences will be developed later this fall. B. Wireless Communications Facilities for Eligible Facilities Requests - Section 6409 ( new Chapter ) For collocations and modifications to existing WCFs that would not cause a substantial change as defined by the FCC, the following regulations are proposed: 1. Decisions: Staff must approve, or conditionally approve, a collocation, removal, or replacement of transmission on an existing wireless tower or base station when the proposed modification does not substantially change the physical dimensions of the wireless tower or base station, pursuant to Section A public hearing is not required and may not be held if the application meets the criteria of a collocation. An application may be denied without prejudice when all of the submittal requirements are not submitted or if it is determined that the application is not eligible for Section 6409 approval based on the FCC s regulations. 2. Permits Required: The applications would require a newly created Section 6409 application. The applicant is required to provide written justification that the project is a 6409 project and does not substantially change or modify a previous installation. Encroachment Permit required for projects in the rightsof-way. 3. Standard Conditions of Approval ( COA ): The COA is subject to Federal and State law; however, the City may conditionally approve an application to protect and promote the public health and safety. The COA would address permit term, compliance obligations, approved plans, build-out period, maintenance obligations, property maintenance agreement, compliance with applicable laws, adverse impacts on other properties, inspections and emergencies, contact information, indemnification, performance bond, approval revocation, and record retention. Procedural Updates As part of a comprehensive update to the WCF regulations, a Frequently Asked Questions handout will be prepared, application forms will be updated, and design Page 8 of 146

9 City Council Agenda Report Agenda Item No. 11.a September 5, 2017 preferences (guidelines) will be established. The design preferences will be a flexible tool with positive and least desirable visual examples. The design preferences will be part of an administrative handout that can be updated regularly to adapt to new, emerging and changing technologies. Staff will seek input from the DRB, Planning Commission, and Council on the design preference guidelines, prior to publishing the original draft preferences. These procedural updates and design preferences will be implemented once the new proposed ordinances are adopted. Infrastructure & Franchise Meeting On April 10, 2017, the Council Committee on Infrastructure & Franchise ( I&F Committee) met and reviewed an overview of technical and legislative framework for Wireless Communications Facilities regulations and an overview of a MLA. The Committee favored updating the regulations to reflect the new legal framework. They requested that design parameters for context and placement be developed, and encouraged maximum aesthetic appeal. I&F directed staff to draft the regulations for Council review and adoption. Public & Stakeholder Outreach On May 8, 2017, the City held a public and stakeholder meeting to share draft WCF regulations with residents, business owners, and stakeholders. Public outreach was done through the Nextdoor social networking platform and the City website. Additionally, stakeholders were notified through . Mr. May with Telecom Law Firm presented the legal framework and key elements of the MLA. At the meeting, one resident raised concerns about RF emissions. In general, stakeholders were positive with staff s approach. Since the release of the draft regulations, the City received written communication from T-Mobile, Mobilitie, Verizon, and AT&T, and staff met with providers individually to respond to their comments. In the Planning Commission packet dated July 19, 2017, a matrix of the Stakeholders written comments and staff s response to each comment was provided. Design Review Board Meeting On June 8, 2017, staff presented the proposed WCF regulations, shared procedural updates, and potential design preferences and the Frequently Asked Questions handout. The procedural updates will be finalized once regulations are adopted. DRB accepted the Development Code modifications and supported the development of design preferences as a flexible tool. Planning Commission Meeting On July 19, 2017, the Planning Commission adopted Resolution No PC, recommending the City Council approve an ordinance amending the Development Code by: (1) repealing and replacing Chapter Wireless Communications Facilities for New & Substantially Changed Facilities ; (2) adding Chapter Wireless Communications Facilities for Eligible Facilities Requests ; and, (3) amending Page 9 of 146

10 City Council Agenda Report Agenda Item No. 11.a September 5, 2017 other sections of the Development Code and Municipal Code to bring the regulations into compliance with the Federal and State legislation. Financial Impact Approving the WCF ordinance requires consultant and staff time, and public hearing process. On September 26, 2017, staff will bring the proposed fee schedule for processing applications to Council for consideration. Environmental Determination Pursuant to the California Environmental Quality Act of 1970, Public Resources Code 21000, et seq., as amended and implementing State CEQA Guidelines, Title 14, Chapter 3 of the California Code of Regulations (collectively, CEQA ), the adoption of a development review process for wireless facilities is not considered a project pursuant to CEQA Guidelines Section and Public Resources Code Section The adoption of this type of zoning ordinance is not the sort of activity that may cause a direct or reasonably foreseeable indirect physical change to the environment. Moreover, any site-specific future projects approved pursuant to the new development review process would necessitate further environmental review. In addition, the proposed amendments to the Municipal Code are exempt pursuant to Section 15061(b)(3), Review for Exemptions of the CEQA Guidelines in that there is no possibility that the code amendments may have a significant effect on the environment. Accordingly, no further environmental review is required. Public Contact The City Council Agenda was posted. In addition, staff notified wireless communications providers via of this meeting. Attachments 1. City Council Ordinance No with Exhibits PC Resolution No (without exhibits) 3. Staff Response Matrix Page 10 of 146

11 Attachment Ord. No ORDINANCE NO AN ORDINANCE TO REPEAL AND REPLACE DEVELOPMENT CODE CHAPTER , ADD CHAPTER , AND AMENDING OTHER SECTIONS OF THE DEVELOPMENT CODE AND THE MUNICIPAL CODE, IN CONNECTION WITH WIRELESS COMMUNICATIONS FACILITIES WHEREAS, on July 24, 2012, the City Council adopted Chapter 18 of the Concord Municipal Code ( Development Code ), to ensure consistency with General Plan policies, and an update of its zoning maps to ensure consistency with the adopted General Plan Map; and WHEREAS, Government Code section et seq. provides for the amendment of any and all adopted City of Concord ( City ) zoning laws, ordinances, rules and regulations; and WHEREAS, the proliferation of new wireless communications facility within the City and the City has received numerous applications and inquiries regarding the development of new or modification to existing wireless communications facility within the City and, given the strong desire of the wireless industry to continue expanding and enhancing their coverage, the City anticipates that it will receive additional applications and inquiries in the near future. WHEREAS, the City considers amending its Development Code and Municipal Code with the intent of establishing reasonable, uniform and comprehensive standards and procedures for wireless communications facilities deployment, construction, installation, collocation, modification, operation, relocation and removal within the City s territorial boundaries, consistent with and to the extent permitted under federal and California state law. The standards and procedures should be applied to, protect and promote public health, safety and welfare, and also balance the benefits that flow from robust, advanced wireless communications services with the City s local values, which include without limitation the aesthetic character of the City of Concord, its neighborhoods and community, and WHEREAS, on January 9, 2015, the Federal Communications Commission approved and interpreted certain provisions of Section 6409(a) of the Middle Tax Relief and Job Creation Act of 2012, Section 6409, which requires local jurisdictions to approve certain eligible collocations and modifications to existing wireless communications facilities and the FCC regulations define Section 6409 s key terms to implement Congress s broader mandate; and Page 11 of 146

12 WHEREAS, on October 9, 2015, the State of California approved Assembly Bill No. 57, Government Code Section , which automatically deems an application for a new wireless site or substantial modification to an existing wireless site not subject to 6409 when 1) the city or county fails to approve or disapprove the application within the applicable shot clock period, 2) the applicant has provided all public notices required for the application and 3) the applicant provides written notice to the city or county that it considers the application deemed approved, and WHEREAS, by repealing and replacing the existing Section and adding Chapter of the Development Code regulating Wireless Communication Facilities, as indicated in Exhibits 1, 1b, and 2 attached hereto and incorporated herein, the City seeks to bring the regulations into alignment with Section 6409(a) of the Middle Tax Relief and Job Creation Act of 2012 and Assembly Bill No. 57; and WHEREAS, in addition to Chapter and Chapter , Federal and State requirements also require additional amendments to the Development Code and Municipal Code, as set forth in Exhibits 3 through 16; and WHEREAS, the amendments as indicated in Exhibits 1 through 16, attached hereto and incorporated herein, are collectively referred to as Development Code Amendments ; and WHEREAS, the City has complied with the requirements of the Local Planning Law (Government Code section et seq.), and the City s applicable ordinances and resolutions with respect to approval of Development Code Amendments; and WHEREAS, the adoption of a development review process for wireless facilities as set forth in the Development Code Amendments is not a project pursuant to CEQA Guidelines Section and Public Resources Code Section because the ordinance is not the sort of activity that may cause a direct or reasonably foreseeable indirect physical change to the environment. Moreover, any site-specific future projects approved pursuant to the new development review process would necessitate further environmental review. In addition, the proposed Development Code Amendment are exempt pursuant to Guideline Section 15061(b)(3) because there is no possibility that the Development Code Amendments may have a significant effect on the environment; and 28 Ord. No Page 12 of 146

13 WHEREAS, on April 10, 2017, the City Council Committee on Infrastructure & Franchise considered the proposed framework for revising the Wireless Communications Facility regulations under Chapter of the Concord Development Code and recommended that the proposed new ordinance be reviewed by the Planning Commission and City Council; and WHEREAS, on July 19, 2017, the Planning Commission, after giving all public notices required by State Law and the Concord Municipal Code, held a duly noticed public hearing to consider the proposed Development Code Amendments; and WHEREAS, the Planning Commission, at such public meeting, considered all oral testimony and written comments received during the public review process, the testimony and information received at the public hearing, the oral report from City staff and its consultants, the written report from City staff, exhibits presented, pertinent plans and documents, and other materials and information contained in the record of proceedings relating to the proposed code amendments, which are maintained at the offices of the City of Concord Planning Division ( Planning Information ); and WHEREAS, after consideration of all pertinent plans, documents, and testimony, the Planning Commission adopted Resolution No PC, recommending City Council adoption of an ordinance to amend the Development Code and Municipal Code; and WHEREAS, the City Council, after giving all public notices required by State Law and the Concord Municipal Code, held a duly noticed public hearing on, September 5, 2017, on the proposed Development Code Amendments; and WHEREAS, at such public hearing on September 5, 2017, the City Council considered all oral and written information, testimony, and comments received during the public review process, including information received at the public hearing, the oral report from City staff, the written staff report, dated September 5, 2017, materials, exhibits presented, the Development Code, applicable Federal regulations, and all other information that constitutes the record of proceedings on which the City Council has based its decision are maintained at the offices of the City of Concord Planning Division (collectively with the Planning Information referred to as Amendment Information ); and WHEREAS, on September 5, 2017, the City Council, after consideration of all reports, documents, testimony and Amendment Information, declared their intent to adopt Ordinance No. 17- Page 13 of 146 Ord. No

14 , approving the Development Code Amendments. THE CITY COUNCIL OF THE CITY OF CONCORD DOES ORDAIN AS FOLLOWS: Recitals 1. The City of Concord does hereby make the following findings: a. The recitals above are true and correct and are incorporated herein by reference The recitals constitute findings in this matter, and together with the Amendment Information, serve as an adequate and appropriate evidentiary basis for the findings and actions set forth in this Ordinance. b. The Development Code Amendments are consistent with the General Plan Policy PF-1.4.1, which requires new development to coordinate with all utility providers to assure quality services to all residents and businesses throughout the community, and General Plan Policy E , which requires establishing land use priorities that foster entrepreneurship, growth, and innovative business development in the 2030 General Plan and is necessary in order to improve the accuracy of the Development Code and its standards and further achieve internal consistency and consistency with the rest of the Concord Municipal Code, Federal Law and State Law. c. The Development Code Amendments will not be detrimental to the public interest, health, safety, convenience, or welfare of the City, as the proposed amendment is in compliance with the FCC s RF emission requirements in that future projects which may be affected by any of the proposed changes would be reviewed under the applicable standards and regulations of the Concord Municipal Code and Development Code. CEQA 2. The adoption of a development review process for wireless facilities as set forth in the Development Code Amendments is not a project pursuant to CEQA Guidelines Section and Public Resources Code Section because the ordinance is not the sort of activity that may cause a direct or reasonably foreseeable indirect physical change to the environment. Moreover, any sitespecific future projects approved pursuant to the new development review process would necessitate further environmental review. In addition, the Development Code Amendments are exempt pursuant to Guideline Section 15061(b)(3) because there is no possibility that the Development Code 28 Amendments may have a significant effect on the environment. Ord. No Page 14 of 146

15 General 3. Title 18, Development Code, (Wireless Communications Facilities for New & Substantially Changed Facilities), (Wireless Communications Facilities for Eligible Facilities Request), (General Terms), (General Development Standards), (Parking and Loading and Access), Chapter 5.30 (Cable Communications Systems), Title 18 (Development Code), Title 5 (Business Licenses and Regulations) and the Land Use Tables for All Zoning Districts and the land use tables for all zoning districts shall be amended as set forth in Exhibits 1 through 16, attached hereto and made a part hereof ( Development Code Amendments ). 4. This Ordinance No shall become effective thirty (30) days following its passage and adoption. In the event a summary of said Ordinance is published in lieu of the entire Ordinance, a certified copy of the full text of this Ordinance shall be posted in the office of the City Clerk at least five (5) days prior to its adoption and within fifteen (15) days after its adoption, including the vote of the Councilmembers. Additionally, a summary prepared by the City Attorney s Office shall be published once at least five (5) days prior to the date of adoption of this Ordinance and once within fifteen (15) days after its passage and adoption, including the vote of the Councilmembers, in the East Bay Times, a newspaper of general circulation in the City of Concord Laura M. Hoffmeister Mayor ATTEST: Joelle Fockler, MMC City Clerk // // // // (Seal) Ord. No Page 15 of 146

16 Ordinance No was duly and regularly introduced at a regular meeting of the City Council of the City of Concord held on September 5, 2017, and was thereafter duly and regularly passed and adopted at a regular meeting of the City Council of the City of Concord on September 26, 2017, by the following vote: AYES: NOES: ABSTAIN: ABSENT: I HEREBY CERTIFY that the foregoing is a true and correct copy of an ordinance duly and regularly introduced, passed, and adopted by the City Council of the City of Concord, California Joelle Fockler, MMC City Clerk Attachments: Exhibit Wireless Communications Facilities for New & Substantially Changed Facilities Wireless Communication Facilities Wireless Communications Facilities for Eligible Facilities Request Exhibit 1b. Exhibit 2. Exhibit General Terms Exhibit North Todos Santos District Exhibit Business Park and Industrial Districts Exhibit Downtown Districts Exhibit Community Land Districts Exhibit Office and Commercial Districts Exhibit Public/Quasi-Public District Exhibit Residential District Exhibit Development and Land Use Approvals Exhibit General Development Standards Exhibit Parking, Loading and Access Exhibit Cable Communications Systems Exhibit 15. Title 18 Development Code Exhibit 16. Title 5 Business Licenses and Regulations Ord. No Page 16 of 146

17 DRAFT Exhibit 1 Changes and Deletions to Chapter Remove strike through and add underlined language Chapter (JULY 19, 2017) DRAFT WIRELESS COMMUNICATION FACILITIES FOR NEW AND SUBSTANTIALLY CHANGED WIRELESS FACILITIES Sections: Legislative intent Definitions Applicability Prior approvals required Application requirements Notice Decisions; limited exceptions; appeals Standard conditions of approval Site location guidelines Development standards Temporary wireless facilities Amortization of nonconforming wireless facilities Abandonment or discontinuation; relocation. Page 17 of 146

18 DRAFT Legislative intent. A. The City of Concord intends this Chapter to establish reasonable, uniform and comprehensive standards and procedures for wireless facilities deployment, construction, installation, collocation, modification, operation, relocation and removal within the City s territorial boundaries, consistent with and to the extent permitted under federal and California state law. The standards and procedures contained in this Chapter are intended to, and should be applied to, protect and promote public health, safety and welfare, and also balance the benefits that flow from robust, advanced wireless services with the City s local values, which include without limitation the aesthetic character of the City of Concord, its neighborhoods and community. B. This Chapter is not intended to, nor shall it be interpreted or applied to: 1. prohibit or effectively prohibit any personal wireless service provider s ability to provide personal wireless services; 2. prohibit or effectively prohibit any entity s ability to provide any interstate or intrastate telecommunications service, subject to any competitively neutral and nondiscriminatory rules, regulations or other legal requirements for rights-of-way management; 3. unreasonably discriminate among providers of functionally equivalent services; 4. deny any request for authorization to place, construct or modify personal wireless service facilities on the basis of environmental effects of radio frequency emissions to the extent that such wireless facilities comply with the FCC s regulations concerning such emissions; Page 18 of 146

19 DRAFT 5. prohibit any collocation or modification that the City may not deny under federal or California state law; 6. impose any unfair, unreasonable, discriminatory or anticompetitive fees that exceed the reasonable cost to provide the services for which the fee is charged; or 7. otherwise authorize the City to preempt any applicable federal or California state law Definitions. The abbreviations, phrases, terms and words used in this Chapter will have the meanings assigned to them in this section or, as may be appropriate, in Concord Municipal Code Chapter 18.20, Article II (Definitions), as may be amended from time to time, unless context indicates otherwise. Undefined phrases, terms or words in this section will have the meanings assigned to them in 47 U.S.C. 702, as may be amended from time to time, and, if not defined therein, will have their ordinary meanings. In the event that any definition assigned to any phrase, term or word in this Chapter conflicts with any federal or state-mandated definition, the federal or state-mandated definition will control. Approval authority means the commission, board or official responsible for review of permit applications and vested with the authority to approve or deny such applications. The approval authority for a Minor Use Permit is the Zoning Administrator or, on appeal, the Planning Commission. The approval authority for an Administrative Permit is the Planning Division or, on appeal, the Zoning Administrator. Page 19 of 146

20 DRAFT Architectural integration means concealment techniques that completely screen all transmission equipment from public view and integrate the transmission equipment with the underlying structure and surrounding built environment such that, given the particular context, the average, untrained observer does not recognize the existence of the wireless facility or concealment technique. These facilities are so integrated and wellhidden that the average, untrained observer would need special knowledge to recognize their existence. Architecturally integrated projects must be designed by a Californialicensed architect. Architectural integration concealment techniques include, but are not limited to: (1) transmission equipment placed completely within existing architectural features such that the installation causes no visible change to the underlying structure and (2) new architectural features that mimic the underlying building in architectural style, physical proportion and quality of construction materials. Architectural features commonly used as architectural integration concealment include, but are not limited to, church steeples, cupolas, bell towers, clock towers, pitched faux-roofs and water tanks. Further, whether a wireless facility qualifies as an architecturally integrated facility depends on the context that exists at a given location and is evaluated on a case-bycase basis. Base station means the same as defined by the FCC in 47 C.F.R (b)(1), as may be amended, which defines that term as a structure or equipment at a fixed location that enables FCC-licensed or authorized wireless communications between user equipment and a communications network. The term does not encompass a tower as defined in 47 C.F.R (b)(9) or any equipment associated with a tower. The term includes, but is not limited to, equipment associated with wireless communications services such as private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul. The term includes, but is not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including distributed antenna systems and small-cell networks). The term includes any structure other than a tower that, at the time the relevant application is filed with the State or local government under this section, supports or houses equipment described in 47 C.F.R (b)(1)(i)-(ii) that has been reviewed and approved under the applicable zoning or siting process, or under Page 20 of 146

21 DRAFT another State or local regulatory review process, even if the structure was not built for the sole or primary purpose of providing such support. The term does not include any structure that, at the time the relevant application is filed with the State or local government under this section, does not support or house equipment described in 47 C.F.R (b)(1)(i)-(ii). Collocation means the same as defined by the FCC in 47 C.F.R (b)(2), as may be amended, which defines that term as the mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes. As an illustration and not a limitation, the FCC s definition effectively means to add and does not necessarily refer to more than one wireless facility installed at a single site. CPCN means a Certificate of Public Convenience and Necessity granted by the CPUC or its duly appointed successor agency pursuant to California Public Utilities Code 1001 et seq., as may be amended. CPUC means the California Public Utilities Commission established in the California Constitution, Article XII, 5, or it s duly appointed successor agency. Director means the Community and Economic Development Director or the Community and Economic Development Director s designee. FCC means the Federal Communications Commission or its duly appointed successor agency. OTARD means any over-the-air reception device subject to 47 C.F.R et seq., as may be amended, and which includes satellite television dishes not greater than one meter in diameter. Personal wireless services means the same as defined in 47 U.S.C. 332(c)(7)(C)(i), as may be amended, which defines the term as commercial mobile services, unlicensed wireless services and common carrier wireless exchange access services. Page 21 of 146

22 DRAFT personal wireless service facilities means the same as defined in 47 U.S.C. 332(c)(7)(C)(i), as may be amended, which defines the term as facilities that provide personal wireless services. pseudo-natural integration means concealment techniques that completely screen all transmission equipment from public view and integrate the transmission equipment with the surrounding natural environment. Given that pseudo-natural integration mimics natural features, these manmade concealment techniques are more obvious to the average, untrained observer such that the observer may not need special knowledge to recognize the existence of pseudo-naturally integrated wireless facility. Such concealment techniques include faux-trees and other faux-plants or faux-geologic features (monoshrubs, monorocks and other faux-natural features). RF means radio frequency or electromagnetic waves generally between 30 khz and 300 GHz in the electromagnetic spectrum range. Section 6409 means Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. No , 126 Stat. 156, codified as 47 U.S.C. 1455(a), as may be amended. Temporary wireless facilities means portable wireless facilities intended or used to provide personal wireless services on a temporary or emergency basis, such as a largescale special event in which more users than usual gather in a confined location or when a disaster disables permanent wireless facilities. Temporary wireless facilities include, without limitation, cells-on-wheels ( COWs ), sites-on-wheels ( SOWs ), cells-on-lighttrucks ( COLTs ) or other similarly portable wireless facilities not permanently affixed to site on which is located. Tower means the same as defined by the FCC in 47 C.F.R (b)(9), as may be amended, which defines that term as any structure built for the sole or primary purpose of supporting any FCC-licensed or authorized antennas and their associated facilities, including structures that are constructed for wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as Page 22 of 146

23 DRAFT unlicensed wireless services and fixed wireless services such as microwave backhaul, and the associated site. Examples include, but are not limited to, monopoles, monotrees and lattice towers. Transmission equipment means the same as defined by the FCC in 47 C.F.R (b)(8), as may be amended, which defines that term as equipment that facilitates transmission for any FCC-licensed or authorized wireless communication service, including, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, and regular and backup power supply. The term includes equipment associated with wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul. Wireless means any FCC-licensed or authorized wireless communication service transmitted over frequencies in the electromagnetic spectrum. Wireless communication facility or wireless facility means the collective or combined equipment, network components or eligible support structures that are necessary or integral in providing personal wireless services, including but not limited to antennas, transmission equipment, towers, and base stations, or as otherwise defined by state or federal law and regulations Applicability. A. Applicable Wireless Facilities. This Chapter applies to all existing wireless facilities within the City and all applications and requests for approval to construct, install, modify, collocate, relocate or otherwise deploy wireless facilities in the City, whether located or proposed to be located on private property or in the public right-of-way, unless exempted under section (B) or governed under Chapter pursuant to section (C). Page 23 of 146

24 DRAFT B. Exempt Wireless Facilities. Notwithstanding the provisions in section (A), the provisions in this Chapter will not be applicable to: 1. wireless facilities owned and operated by the City for public purposes; 2. amateur radio facilities; 3. OTARD antennas; 4. wireless facilities installed completely indoors and intended to extend signals for personal wireless services in a personal residence or a business (such as a femtocell or indoor distributed antenna system); 5. wireless facilities or equipment owned and operated by CPUC-regulated electric companies for use in connection with electrical power generation, transmission and distribution facilities subject to CPUC General Order 131-D. C. Request for Approval Pursuant to Section Any requests for approval to collocate, replace or remove transmission equipment at an existing wireless tower or base station submitted pursuant to Section 6409 will be first reviewed under Chapter Approvals required. A. Administrative Permit. An Administrative Permit, subject to the Planning Division s prior review and approval in accordance with the procedures and standards in Chapter (Administrative Permits) is required for: Page 24 of 146

25 DRAFT 1. wireless facilities installed on City-owned infrastructure in the public rights-of-way pursuant to a valid master license agreement with the City; 2. all new architecturally integrated wireless facilities; 3. all pseudo-naturally integrated wireless facilities in preferred locations (as defined in section (A)) not within the public rights-of-way; 4. collocations, modifications or other changes to existing architecturally integrated facilities not subject to Section 6409; 5. collocations, modifications or other changes to existing pseudo-naturally integrated facilities not subject to Section 6409; 6. wireless facilities installed on lattice electric transmission towers. B. Minor Use Permit. A Minor Use Permit, subject to the Zoning Administrator s prior review and approval in accordance with the procedures and standards in Chapter (Minor Use Permits and Use Permits) is required for: 1. any wireless facilities that require an exception pursuant to section (C); 2. all new pseudo-naturally integrated wireless facilities in discouraged locations (as defined in section (B)); 3. any facility in the public rights-of-way not placed on City-owned infrastructure pursuant to a valid master license agreement with the City; Page 25 of 146

26 DRAFT 4. any other permanent wireless facility that is not subject to an Administrative Permit under section (A). C. Temporary Use Permit. A Temporary Use Permit, subject to the Director s prior review and approval in accordance with the procedures and standards in section is required for any temporary wireless facility, unless deployed in connection with an emergency pursuant to section (B). D. Design and Site Development Review. The Planning Division or the Zoning Administrator may refer any wireless facility application for an Administrative Permit or a Minor Use Permit, respectively, to the Design Review Board for a recommendation and/or decision, or to the Planning Commission for a decision when the proposed facility may involve a significant design or policy issue. E. Other Permits and Regulatory Approvals. In addition to any Administrative Permit, Minor Use Permit or other permit required under this Chapter, the applicant must obtain all other permits and regulatory approvals as may be required by any other federal, state or local government agencies, which includes without limitation building permits, encroachment permits, electrical permits, plumbing permits and any other permits and/or regulatory approvals issued by other departments or divisions within the City. Furthermore, any permit or approval granted under this Chapter or deemed granted or deemed approved by law shall remain subject to any and all lawful conditions and/or legal requirements associated with such other permits or regulatory approvals Application requirements. A. Application Required. The approval authority shall not approve any request for an Administrative Permit or Minor Use Permit except upon a duly filed application consistent Page 26 of 146

27 DRAFT with this section and any other written rules the City or the Director may establish from time to time in any publicly-stated format. B. Application Content. All applications for an Administrative Permit or Minor Use Permit must include all the content, information and materials required by the Director for the application. The City Council authorizes the Director to develop, publish and from time to time update or amend permit application requirements, forms, checklists, guidelines, informational handouts and other related materials that the Director finds necessary, appropriate or useful for processing any application governed under this Chapter. The City Council further authorizes the Director to establish other reasonable rules and regulations, which may include without limitation regular hours for appointments with applicants, as the Director deems necessary or appropriate to organize, document and manage the application intake process. All such rules and regulations must be in written form and publicly stated to provide applicants with prior notice. C. Procedures for a Duly Filed Application. Any application for an Administrative Permit or Minor Use Permit will not be considered duly filed unless submitted in accordance with the procedures in this section (C). 1. Pre-Submittal Conference. Before application submittal, the applicant must schedule and attend a pre-submittal conference with the Planning Division for all proposed projects (a) in residential zoning districts (RR, RS, RL, RM and RH, as may be amended or superseded); (b) in any districts subject to a specific plan or specific architectural guidelines; or (c) located in the public right-of-way and subject to a minor use permit. Pre-submittal conferences for all other proposed projects are strongly encouraged but not required. The pre-submittal conference is intended to streamline the review process through informal discussion that includes, without limitation, the appropriate project classification and review process, any latent issues in connection with the proposed or existing wireless tower or base station, including compliance with generally applicable rules for public health and safety; potential concealment issues or concerns (if applicable); coordination with other City departments responsible for application review; and application completeness Page 27 of 146

28 DRAFT issues. To mitigate unnecessary delays due to application incompleteness, applicants are encouraged (but not required) to bring any draft applications or other materials so that City staff may provide informal feedback and guidance about whether such applications or other materials may be incomplete or unacceptable. The City may require a fee or deposit to reimburse the City for its reasonable costs to provide the services rendered in the pre-submittal conference. The Director may, in the Director s discretion, grant a written exemption to the submittal appointment under section (C)(2) and/or for a specific requirement for a complete application to any applicant who (i) schedules, attends and fully participates in any pre-submittal conference and (ii) shows to the Director s satisfaction that such specific requirement duplicates information already provided in other materials to be submitted or is otherwise unnecessary to the City s review under facts and circumstances in that particular case. Any written exemption will be limited to the project discussed at the pre-submittal conference and will not be extended to any other project. 2. Submittal Appointment. All applications must be submitted in-person to the City at a pre-scheduled appointment with the Director. Applicants may generally submit one application per appointment, but may schedule successive appointments for multiple applications whenever feasible and not prejudicial to other applicants. The Planning Division may develop alternative rules that allowed multiple (i.e., batched ) applications to be submitted at the same time. Any application received without an appointment or the required application fee, whether delivered in-person, by mail or through any other means, will not be considered duly filed unless the applicant received a written exemption from the Planning Division at a pre-submittal conference. 3. Appointment Scheduling Procedures. For any event in the submittal process that requires an appointment, applicants must submit a written request (such as an ) to the Planning Division. The Planning Division shall use reasonable efforts to provide applicants with an appointment within approximately 15 working days after a written request is received and, if applicable, confirms that the applicant complied with the pre-submittal conference requirement. Page 28 of 146

29 DRAFT D. Procedures for a Neighborhood Meeting. Except as modified by this section, all projects proposed to be located on private property within 300 feet of a residential district shall require a neighborhood meeting in accordance with Concord Municipal Code section The applicant shall provide the required notice materials to the planning division, which will send the required notice to all of the adjacent residents and property owners in accordance with the City s public notification requirements and procedures. E. Applications Deemed Withdrawn. To promote efficient review and timely decisions, and consistent with Concord Municipal Code section , any application governed under this Chapter will be automatically deemed withdrawn by the applicant when the applicant fails to tender a substantive response to the Planning Division within 180 calendar days after the Planning Division deems the application incomplete in a written notice to the applicant. The Planning Division may, in the Planning Division s discretion, grant a written extension for up to an additional 30 calendar days when the applicant submits a written request prior to the 180th day that shows good cause to grant the extension. Delays due to circumstances outside the applicant s reasonable control will be considered good cause to grant the extension Notice. A. General Notice Requirements. Public notice in accordance with the provisions in Concord Municipal Code sections (Review, notice, and hearing) and (Notice of public hearing) shall be required for all Minor Use Permit applications. B. Deemed-Approval Notices. Not more than 30 calendar days before the applicable FCC timeframe for review expires, and in addition to the public notice required in section (A), an applicant for an Administrative Permit or Minor Use Permit must provide a posted notice at the project site that states the project will be automatically deemed approved pursuant to California Government Code unless the City approves or denies the application or the applicant tolls the timeframe for review within the next calendar 30 days. The posted notice must be compliant with all applicable provisions in Concord Page 29 of 146

30 DRAFT Municipal Code section (B)(2)(b). The public notice required under this section (B) will be deemed given when the applicant delivers written notice to the Planning Division that shows the appropriate notice has been posted at the project site. Notwithstanding anything to the contrary in this Chapter, the approval authority shall be permitted to act on an application at any time so long as the public notice required in section (A) has occurred. C. Decision Notices. Within five working days after the approval authority acts on an application for an Administrative Permit or Minor Use Permit or before the FCC shot clock expires (whichever occurs first), the approval authority or its designee shall send a written notice to the applicant. In the event that the approval authority denies the application (with or without prejudice), the written notice to the applicant must contain (1) the reasons for the decision and (2) instructions for how and when to file an appeal Decisions; Limited exceptions; Appeals. A. Required Findings for Approval. The approval authority may approve or conditionally approve any application for any Administrative Permit or Minor Use Permit when the approval authority finds that: 1. The proposed wireless facility complies with all required findings for an Administrative Permit approval in section (A) (Review and decision) or a Minor Use Permit approval in section (A) (Review notice, and hearing), as applicable; 2. The proposed wireless facility complies with all applicable development standards described in section , or qualifies for a limited exception pursuant to section (C); 3. The applicant demonstrated that its proposed wireless facility will be in compliance with all applicable FCC rules and regulations for human exposure to RF emissions; Page 30 of 146

31 DRAFT 4. The applicant demonstrated a good-faith effort to identify and evaluate morepreferred locations and potentially less-intrusive designs; and 5. The applicant provided the approval authority with a meaningful comparative analysis that shows all less-intrusive alternative locations and designs identified in the administrative record are either technically infeasible or not potentially available. B. Conditional Approvals; Denials Without Prejudice. Subject to any applicable limitations in federal or state law, nothing in this Chapter is intended to limit the approval authority s ability to conditionally approve or deny without prejudice any application for an Administrative Permit or Minor Use Permit as may be necessary or appropriate to protect and promote the public health, safety and welfare, and to advance the goals or policies in this Chapter or the general plan. C. Limited Exceptions for Personal Wireless Service Facilities. In the event that an applicant claims that strict compliance with the site location guidelines in section or the development standards in section would effectively prohibit the applicant s ability to provide personal wireless services, the approval authority may grant a limited exception from such requirements to the extent necessary to prevent an effective prohibition when the approval authority finds: 1. The proposed wireless facility qualifies as a personal wireless service facility as defined in 47 U.S.C. 332(c)(7)(C)(ii), as may be amended or superseded; 2. The applicant provided the approval authority with a reasonable and clearly defined technical service objective to be achieved by the proposed wireless facility; Page 31 of 146

32 DRAFT 3. The applicant provided the approval authority with a written statement that contains a detailed and fact-specific explanation as to why the proposed wireless facility cannot be deployed in compliance with the applicable provisions in this Chapter, the Concord Municipal Code, the general plan and/or any specific plan; 4. The applicant provided the approval authority with a meaningful comparative analysis with the factual reasons why all alternative locations and/or designs identified in the administrative record (whether suggested by the applicant, the City, public comments or any other source) are not technically feasible or potentially available to reasonably achieve the applicant s reasonable and clearly defined technical service objective to be achieved by the proposed wireless facility; and 5. The applicant demonstrated to the approval authority that the proposed location and design is the least non-compliant configuration that will reasonably achieve the applicant s reasonable and clearly defined technical service objective to be achieved by the proposed wireless facility, which includes without limitation a meaningful comparative analysis into multiple smaller or less intrusive wireless facilities dispersed throughout the intended service area. D. Appeals. Any interested person or entity may appeal any decision by the approval authority in accordance with the standards and procedures in Concord Municipal Code Chapter (Appeals and Calls for Review), except as modified in this paragraph. On the next available meeting date after the appeal period lapses, or as soon as reasonably feasible thereafter, the appellate authority shall hold a de novo public hearing to consider and act on the application in accordance with the applicable provisions in the general plan, any applicable specific plan and all applicable provisions in the Concord Municipal Code. Appeals from an approval will not be permitted to the extent that the appeal is based on environmental effects from RF emissions that comply with all applicable FCC regulations. Page 32 of 146

33 DRAFT Standard conditions of approval. In addition to all other conditions adopted by the approval authority, all Administrative Permits and Minor Use Permits, whether approved by the approval authority or deemed approved by the operation of law, shall be automatically subject to the conditions in this section The approval authority (or the appellate authority on appeal) shall have discretion to modify or amend these conditions on a case-by-case basis as may be necessary or appropriate under the circumstances to protect public health and safety or allow for the proper operation of the approved facility consistent with the goals of this Chapter. A. Permit Term. This permit will automatically expire 10 years and one day from its issuance, except when California Government Code 65964(b), as may be amended or superseded in the future, authorizes the City to establish a shorter term for public safety or substantial land use reasons. Any other permits or approvals issued in connection with any collocation, modification or other change to this wireless facility, which includes without limitation any permits or other approvals deemed-granted or deemed-approved under federal or state law, will not extend this term limit unless expressly provided otherwise in such permit or approval or required under federal or state law. B. Strict Compliance with Approved Plans. Before the permittee submits any applications to the Building Division, the permittee must incorporate this permit, all conditions associated with this permit and the approved photo simulations into the project plans (the Approved Plans ). The permittee must construct, install and operate the wireless facility in strict compliance with the Approved Plans. Any 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 Planning Division s prior review and approval, who may refer the request to the original approval authority if the Planning Division finds that the requested alteration, modification or other change substantially deviates from the Approved Plans or implicates a significant or substantial land-use concern. Page 33 of 146

34 DRAFT C. Build-Out Period. This permit will automatically expire one year from the approval or deemed-granted date unless the permittee obtains all other permits and approvals required to install, construct and/or operate the approved wireless facility, which includes without limitation any permits or approvals required by the any federal, state or local public agencies with jurisdiction over the subject property, the wireless facility or its use. The Planning Division may grant one written extension to a date certain when the permittee shows good cause to extend the limitations period in a written request for an extension submitted at least 30 calendar days prior to the automatic expiration date in this condition. D. Maintenance Obligations; Vandalism. The permittee shall keep the site, which includes without limitation any and all improvements, equipment, structures, access routes, fences and landscape features, in a neat, clean and safe condition in accordance with the Approved Plans and all conditions in this permit. The permittee shall keep the site area free from all litter and debris at all times. The permittee, at no cost to the City, shall remove and remediate any graffiti or other vandalism at the site within 48 hours after the permittee receives notice or otherwise becomes aware that such graffiti or other vandalism occurred. Each year after the permittee installs the wireless facility, the permittee shall submit a written report to the Director, in a form acceptable to the Director, that documents the then-current site condition. E. Property Maintenance. The permittee shall ensure that all equipment and other improvements to be constructed and/or installed in connection with the Approved Plans are maintained in a manner that is not detrimental or injurious to the public health, safety, and general welfare and that the aesthetic appearance is continuously preserved, and substantially the same as shown in the approved plans at all times relevant to this permit. The permittee further acknowledges that failure to maintain compliance with this condition may result in a code enforcement action. F. Compliance with Laws. The permittee shall maintain compliance at all times with all federal, state and local statutes, regulations, orders or other rules that carry the force of law ( Laws ) applicable to the permittee, the subject property, the wireless facility or any use or activities in connection with the use authorized in this permit, which includes without limitation any Laws applicable to human exposure to RF emissions. The permittee expressly Page 34 of 146

35 DRAFT acknowledges and agrees that this obligation is intended to be broadly construed and that no other specific requirements in these conditions are intended to reduce, relieve or otherwise lessen the permittee s obligations to maintain compliance with all Laws. In the event that the City fails to timely notice, prompt or enforce compliance with any applicable provision in the Concord Municipal Code, any permit, any permit condition or any applicable law or regulation, the applicant or permittee will not be relieved from its obligation to comply in all respects with all applicable provisions in the Concord Municipal Code, any permit, any permit condition or any applicable law or regulation. G. Adverse Impacts on Other Properties. The permittee shall use all reasonable efforts to avoid any and all undue or unnecessary adverse impacts on nearby properties that may arise from the permittee s or its authorized personnel s construction, installation, operation, modification, maintenance, repair, removal and/or other activities at the site. Impacts of radio frequency emissions on the environment, to the extent that such emissions are compliant with all applicable laws, are not adverse impacts for the purposes of this condition. The permittee shall not perform or cause others to perform any construction, installation, operation, modification, maintenance, repair, removal or other work that involves heavy equipment or machines except during normal construction hours authorized by the Concord Municipal Code. The restricted work hours in this condition will not prohibit any work required to prevent an actual, immediate harm to property or persons, or any work during an emergency declared by the City. The Director or the Director s designee may issue a stop work order for any activities that violates this condition. H. Inspections; Emergencies. The permittee expressly acknowledges and agrees that the City s officers, officials, staff or other designee may enter onto the site and inspect the improvements and equipment upon reasonable prior notice to the permittee; provided, however, that the City s officers, officials, staff or other designee may, but will not be obligated to, enter onto the site area without prior notice to support, repair, disable or remove any improvements or equipment in emergencies or when such improvements or equipment threatens actual, imminent harm to property or persons. The permittee will be permitted to supervise the City s officers, officials, staff or other designee while any such inspection or emergency access occurs. Page 35 of 146

36 DRAFT I. Permittee s Contact Information. The permittee shall furnish the Director with accurate and up-to-date contact information for a person responsible for the wireless facility, which includes without limitation such person s full name, title, direct telephone number, facsimile number, mailing address and address. The permittee shall keep such contact information up-to-date at all times and immediately provide the Director with updated contact information in the event that either the responsible person or such person s contact information changes. J. Indemnification. The permittee and, if applicable, the property owner upon which the wireless facility is installed shall defend, indemnify and hold harmless the City, its agents, officers, officials, employees and volunteers from any and all (1) damages, liabilities, injuries, losses, costs and expenses and from any and all claims, demands, law suits, writs and other actions or proceedings ( Claims ) brought against the City or its agents, officers, officials, employees or volunteers to challenge, attack, seek to modify, set aside, void or annul the City s approval of this permit, and (2) other Claims any kind or form, whether for personal injury, death or property damage, that arise from or in connection with the permittee s or its agents, directors, officers, employees, contractors, subcontractors, licensees, or customers acts or omissions in connection with this permit or the wireless facility. In the event the City becomes aware any Claims, the City will use best efforts to promptly notify the permittee and the private property owner and shall reasonably cooperate in the defense. The permittee expressly acknowledges and agrees that the City shall have the right to approve, which approval shall not be unreasonably withheld, the legal counsel providing the City s defense, and the property owner and/or permittee (as applicable) shall promptly reimburse City for any costs and expenses directly and necessarily incurred by the City in the course of the defense. The permittee expressly acknowledges and agrees that the permittee s indemnification obligations under this condition are a material consideration that motivates the City to approve this permit, and that such indemnification obligations will survive the expiration or revocation of this permit. K. Performance Bond. Before the Building Division issues any construction permit in connection with this permit, the permittee shall post a performance bond from a surety and in a form acceptable to the Director in an amount reasonably necessary to cover the cost to remove the improvements and restore all affected areas based on a written estimate from a Page 36 of 146

37 DRAFT qualified contractor with experience in wireless facilities removal. The written estimate must include the cost to remove all equipment and other improvements, which includes without limitation all antennas, radios, batteries, generators, utilities, cabinets, mounts, brackets, hardware, cables, wires, conduits, structures, shelters, towers, poles, footings and foundations, whether above ground or below ground, constructed or installed in connection with the wireless facility, plus the cost to completely restore any areas affected by the removal work to a standard compliant with applicable laws. In establishing or adjusting the bond amount required under this condition, and in accordance with California Government Code 65964(a), the Director shall take into consideration any information provided by the permittee regarding the cost to remove the wireless facility and restore any areas affected by the removal work to a standard compliant with applicable laws. L. Recall to Approval Authority; Permit Revocation. The approval authority may recall this permit for review at any time due to complaints about noncompliance with applicable laws or any approval conditions attached to this permit. At a duly noticed public hearing and in accordance with all applicable laws, the approval authority may revoke this permit or amend these conditions as the approval authority deems necessary or appropriate to correct any such noncompliance. M. Record Retention. The permittee must maintain complete and accurate copies of all permits and other regulatory approvals issued in connection with the wireless facility, which includes without limitation this approval, the approved plans and photo simulations incorporated into this approval, all conditions associated with this approval and any ministerial permits or approvals issued in connection with this approval. In the event that the permittee does not maintain such records as required in this condition, any ambiguities or uncertainties that would be resolved through an inspection of the missing records will be construed against the permittee. The permittee may keep electronic records; provided, however, that hard copies kept in the City s regular files will control over any conflicts between such hard copies and the permittee s electronic copies, and complete originals will control over all other copies in any form. N. Permit Renewal. Any application to renew this permit must be tendered to the Director within one (1) year prior to the expiration of this permit, and shall be accompanied by all required Page 37 of 146

38 DRAFT application materials, fees and deposits for a new application as then in effect. The approval authority shall review an application for permit renewal in accordance with the standards for new facilities as then in effect. The Director may, but is not obligated to, grant a written temporary extension on the permit term to allow sufficient time to review a timely submitted permit renewal application Site location guidelines. A. Preferred Locations. All applicants must, to the extent feasible, propose new wireless facilities in locations according to the following preferences, ordered from most preferred to least preferred: 1. City-owned or controlled parcels or structures on private property; 2. City-owned or controlled structures in the public rights-of-way; 3. Parcels or structures in business park and industrial districts (OBP, IBP, IMX and HI); 4. Existing structures in the public rights-of-way within business park and industrial districts (OBP, IBP, IMX and HI); 5. Parcels or structures in office and commercial districts (CO, CMX, NC, RC and SC); 6. Existing structures in the public rights-of-way within office and commercial districts (CO, CMX, NC, RC and SC); Page 38 of 146

39 DRAFT 7. Parcels or structures in downtown districts (NTS, DP, DMX and WMX); 8. Existing structures in the public rights-of-way within downtown districts (NTS, DP, DMX and WMX); 9. Parcels or structures in public/quasi-public districts (PQP); 10. Existing structures in the public rights-of-way within public/quasi-public districts (PQP). B. Discouraged Locations. The City discourages new wireless facilities in the following locations, ordered from most discouraged to least discouraged, and the approval authority will take into account whether any less discouraged (or more preferred) locations are technically feasible and potentially available: 1. Parcels or structures in residential districts (RR, RS, RL, RM and RH); 2. Parcels or structures in open space or community land districts (OS, PR, RLC and WRC), except when located on existing electrical transmission towers or other similar utility towers; 3. Any other locations not identified as preferred in Section (A) Development standards. Page 39 of 146

40 DRAFT A. Generally Applicable Development Standards. All new wireless facilities and substantial changes to existing wireless facilities not covered under Section 6409 must conform to the generally applicable development standards in this section (A). 1. Concealment. Wireless facilities must incorporate concealment elements, measures and techniques that blend the equipment and other improvements into the natural and/or built environment in a manner consistent and/or compatible with the uses germane to the underlying zoning district and existing in the immediate vicinity. 2. Overall Height. Wireless facilities may not exceed the applicable height limit for structures in the applicable zoning district. 3. Setbacks. Wireless facilities may not encroach into any applicable setback for structures in the subject zoning district. 4. Noise. Wireless facilities and all accessory equipment and transmission equipment must comply with all noise regulations, which includes without limitation section (O) (Noise) and the general plan, and shall not exceed, either individually or cumulatively, the applicable ambient noise limit in the subject zoning district. The approval authority may require the applicant to incorporate appropriate noise-baffling materials and/or strategies whenever necessary to avoid any ambient noise from equipment reasonably likely to exceed the applicable limit. 5. Landscaping. In accordance with Chapters (Landscaping) and (Water Efficient Landscaping), all wireless facilities proposed to be placed in a landscaped area must include landscape features and a landscape maintenance plan prepared by a California-licensed landscape architect, or other qualified professional. The approval authority may require additional landscape features to screen the wireless facility from public view, avoid or mitigate potential adverse impacts on adjacent properties or otherwise enhance the concealment required under this Chapter. All landscape features must be planted and maintained using best practice methods. Page 40 of 146

41 DRAFT The approval authority may require that all plants proposed or required under this Chapter must be native and/or drought-resistant. 6. Site Security Measures. Wireless facilities may incorporate reasonable and appropriate site security measures, such as fences, walls and anti-climbing devices, to prevent unauthorized access, theft or vandalism. Site security measures must be designed to enhance concealment to the maximum extent possible, such as installing equipment within an enclosure designed to mimic a trash-can corral rather than within a chain link fence. The approval authority may require additional concealment elements as the approval authority finds necessary to blend the security measures and other improvements into the natural and/or built environment. The approval authority shall not approve barbed wire, razor ribbon, electrified fences or any similar security measures. 7. Backup Power Sources. The approval authority may approve permanent backup power sources and/or generators on a case-by-case basis. The City strongly disfavors backup power sources mounted on the ground or on poles within the public rights-of-way. The approval authority shall not approve any diesel generators or other similarly noisy or noxious generators in or within 250 feet from any residence; provided, however, the approval authority may approve sockets or other connections used for temporary backup generators. 8. Lights. Wireless facilities may not include exterior lights other than (a) as may be required under FAA, FCC or other applicable governmental regulations; and (b) timed or motion-sensitive lights for security and/or worker safety. All exterior lights permitted or required to be installed must be installed in locations and within enclosures that mitigates illumination impacts on other properties to the maximum extent feasible. 9. Signage; Advertisements. All wireless facilities must include signage that accurately identifies the equipment owner/operator, the owner/operator s site name or identification number and a toll-free number to the owner/operator s network Page 41 of 146

42 DRAFT operations center. Wireless facilities may not bear any other signage or advertisements unless expressly approved by the City, required by law or recommended under FCC or other United States governmental agencies for compliance with RF emissions regulations. 10. Future Collocations and Equipment. To the extent feasible and aesthetically desirable, all new wireless facilities should be designed and sited in a manner that accommodates future collocations and equipment installations that can be integrated into the proposed wireless facility or its associated structures with no or negligible visual changes to the outward appearance. 11. Utilities. All cables and connectors for telephone, primary electric and other similar utilities must be routed underground to the extent feasible in conduits large enough to accommodate future collocated wireless facilities. Meters, panels, disconnect switches and other associated improvements must be placed in inconspicuous locations to the extent possible. The approval authority shall not approve new overhead utility lines or service drops merely because compliance with the undergrounding requirements would increase the project cost. 12. Compliance with Laws. All wireless facilities must be designed and sited in compliance with all applicable federal, state and local laws, regulations, rules, restrictions and conditions, which includes without limitation the California Building Standards Code, general plan and any applicable specific plan, the Concord Municipal Code and any conditions or restrictions in any permit or other governmental approval issued by any public agency with jurisdiction over the project. B. Development Standards for Specific Types of Wireless Facilities. In addition to the requirements in section (A), all new and substantially changed wireless facilities not covered under Section 6409 must conform to the applicable facility-specific development standards adopted by the City Council. The City Council shall adopt such standards following a public hearing conducted pursuant to the requirements of the Concord Municipal Code. The facility-specific development standards may include without limitation standards Page 42 of 146

43 DRAFT for freestanding facilities, building-mounted facilities and/or facilities located in the public rights-of-way. C. Design Guidelines. The Director may develop and from time to time amend design guidelines, consistent with the generally applicable development standards and any development standards for specific types of wireless facilities, to clarify the aesthetic goals and standards in this Chapter for City staff, applicants and the public. Any design guidelines for facilities in the public rights-of-way will be subject to approval by the Public Works Director. In the event that a conflict arises between the development standards adopted under sections (A)-(B) and the design guidelines adopted under this section (C), the development standards adopted under sections (A)-(B) shall control Temporary wireless facilities. A. General Requirements for Temporary Wireless Facilities. Except as provided in section (B), the requirements, procedures and standards in this section shall be applicable to all applications for a Temporary Use Permit for a temporary wireless facility. 1. Applications for Temporary Wireless Facilities. The Director shall not approve any temporary wireless facility subject to a Temporary Use Permit except upon a duly filed application consistent with this section (A)(1) and any other written application requirements or procedures the Director may publish in any publiclystated format. Applicants for a Temporary Use Permit for a temporary wireless facility must submit, at a minimum: (1) a discretionary permit application on the most current form prepared by the Planning Division; (2) the applicable fee for the application; (3) a site plan that shows the proposed temporary wireless facility and its equipment, physical dimensions and placement on the proposed site relative to property lines and existing structures; (4) an RF compliance report in accordance with section (B)(9) in this Chapter; and (5) an insurance certificate for general Page 43 of 146

44 DRAFT commercial liability that names the City as an additional insured, includes coverage for the time period in which the temporary wireless facility will be placed and a carries at least $1,000,000 in coverage per occurrence. Applications must be submitted in person to the Director unless the Director grants written consent to receive an application by mail or electronic means. No pre-submittal conference or appointment is required for a Temporary Use Permit application for a temporary wireless facility. 2. Administrative Review for Temporary Wireless Facilities. After the Director receives a duly filed application for a Temporary Use Permit for a temporary wireless facility, the Director shall review the application for completeness. After the Director deems the application complete, the Director shall review the application for conformance with the required findings in section (A)(3) and render a written decision to the applicant. Any denials must include the reasons for the denial. The review shall be administrative in nature and shall not require notice or a public hearing. 3. Required Findings for Temporary Wireless Facilities. The Director may approve or conditionally approve a Temporary Use Permit for a temporary wireless facility only when the Director finds: a. The proposed temporary wireless facility will not exceed 50 feet in overall height above ground level; b. The proposed temporary wireless facility complies with all setback requirements applicable to the proposed location; c. The proposed temporary wireless facility will not involve any excavation or ground disturbance; d. The proposed temporary wireless facility will be compliant with all generally applicable public health and safety laws and regulations, which includes Page 44 of 146

45 DRAFT without limitation maximum permissible exposure limits for human exposure to RF emissions established by the FCC; e. The proposed temporary wireless facility will not create any nuisance or violate any noise limits applicable to the proposed location; f. The proposed temporary wireless facility will be identified with a sign that clearly identifies the (I) site operator, (II) the operator s site identification name or number and (III) a working telephone number answered 24 hours per day, seven days per week by a live person who can exert power-down control over the antennas; g. The proposed wireless temporary wireless facility will be removed within 30 days after the Director grants the Temporary Use Permit, or such longer time as the Director finds reasonably related to the applicant s need or purpose for the temporary wireless facility (but in no case longer than one (1) year); h. The applicant has not been denied an approval for any permanent wireless facility in substantially the same location within the previous 365 days. 4. Appeals for Temporary Wireless Facilities. Any applicant may appeal the Director s written decision to deny an application for a Temporary Use Permit for a temporary wireless facility. The written appeal together with any applicable appeal fee must be tendered to the City within 10 days from the Director s written decision, and must state in plain terms the grounds for reversal and the facts that support those grounds. The Zoning Administrator shall be the appellate authority for all appeals from the Director s written decision to deny a Temporary Use Permit for a temporary wireless facility. The Zoning Administrator shall review the application de novo; provided, however, that the Zoning Administrator s decision shall be limited to only whether the application should be approved or denied in accordance with the provisions in this Chapter and any other applicable laws. The Zoning Administrator Page 45 of 146

46 DRAFT shall issue a written decision that contains the reasons for the decision, and such decision shall be final and not subject to any further administrative appeals. B. Temporary Wireless Facilities for Emergencies. Temporary wireless facilities may be placed and operated within the City without a Temporary Use Permit only when a duly authorized federal, state, county or City official declares an emergency within a region that includes the City in whole or in part. Any temporary wireless facilities placed pursuant to this section (B) must be removed within five days after the date the emergency is lifted. Any person or entity that places temporary wireless facilities pursuant to this section must send a written notice that identifies the site location and person responsible for its operation to the Director as soon as reasonably practicable Amortization of nonconforming wireless facilities. Any non-conforming wireless facilities in existence at the time this Chapter becomes effective must be brought into conformance with this Chapter in accordance with the amortization schedule in this section As used in this section, the fair market value will be the construction costs listed on the building permit application for the subject wireless facility and the minimum years allowed will be measured from the date on which this Chapter becomes effective. Fair Market Value on Effective Date Minimum Years Allowed Less than $50, $50,000 to $500, Greater than $500, Page 46 of 146

47 DRAFT The Director may grant a written extension to a date certain when the wireless facility owner shows (1) a good faith effort to cure non-conformance; (2) the application of this section would violate applicable laws; or (3) extreme economic hardship would result from strict compliance with the amortization schedule. Any extension must be the minimum time period necessary to avoid such extreme economic hardship. The Director may not grant any permanent exemption from this section. Nothing in this section is intended to limit any permit term to less than 10 years. In the event that the amortization required in this section would reduce the permit term to less than 10 years for any permit granted on or after September 29, 2006, then the minimum years allowed will be automatically extended by the difference between 10 years and the number of years since the City granted such permit. Nothing in this section is intended or may be applied to prohibit any collocation or modification covered under 47 U.S.C. 1455(a) on the basis that the subject wireless facility is a legal nonconforming wireless facility Abandonment or discontinuation; relocation. A. Removal Procedures for Abandoned or Discontinued Wireless Facilities. 1. To promote the public health, safety and welfare, the Director may declare a facility abandoned or discontinued when: a. The permittee notifies the Director that it abandoned or discontinued the use of a facility for a continuous period of 90 calendar days; or b. The permittee fails to respond within 30 calendar 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 calendar days; or Page 47 of 146

48 DRAFT c. The permit expires in the case where the permittee has failed to file a timely application for renewal. 2. After the Director declares a facility abandoned or discontinued, the permittee shall have 90 calendar days from the date of the declaration (or longer time as the Director may approve in writing as reasonably necessary) to: a. Reactivate the use of the abandoned or discontinued facility subject to the provisions of this chapter and all conditions of approval; b. Transfer its rights to use the facility, subject to the provisions of this chapter and all conditions of approval, to another person or entity that immediately commences use of the abandoned or discontinued facility; or c. 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 consistent with the then-existing surrounding area. 3. If the permittee fails to act as required in section (A)(2) within the prescribed time period, the City Council may deem the facility abandoned at a noticed public meeting. The Director shall send written notice by Certified U.S. Mail, Return Receipt Requested, to the last-known permittee or real property owner that provides 30 calendar days (or longer time as the Director may approve in writing as reasonably necessary) from the notice date to: a. Reactivate the use of the abandoned or discontinued facility subject to the provisions of this chapter and all conditions of approval; b. Transfer its rights to use the facility, subject to the provisions of this chapter and all conditions of approval, to another person or entity that immediately commences use of the abandoned or discontinued facility; or Page 48 of 146

49 DRAFT c. 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 then-existing surrounding area. 4. If the permittee fails to act as required in section (A)(3) within the prescribed time period, the City may remove the abandoned facility, restore the site to a condition compliant with all applicable codes and consistent with the thenexisting surrounding area, and repair any and all damages that occurred in connection with such removal and restoration work. The City may, but shall not be obligated to, store the removed facility or any part thereof, and may use, sell or otherwise dispose of it in any manner the City deems appropriate. The last-known permittee or its successor-in-interest and, if on private property, the real property owner shall be jointly liable for all costs incurred by the City in connection with its removal, restoration, repair and storage, and shall promptly reimburse the City upon receipt of a written demand, include any interest on the balance owing at the maximum lawful rate. The City may, but shall not be obligated to, use any financial security required in connection with the granting of the facility permit to recover its costs and interest. Until the costs are paid in full, a lien shall be placed on the facility, all related personal property in connection with the facility and, if applicable, the real private property on which the facility was located for the full amount of all costs for removal, restoration, repair and storage. The City Clerk shall cause the lien to be recorded with the County of Contra Costa Recorder s Office. Within 60 calendar days after the lien amount is fully satisfied including costs and interest, the City Clerk shall cause the lien to be released with the County of Contra Costa Recorder s Office. B. Relocation Procedures for Wireless Facilities in the Public Rights-of-Way. In accordance with Concord Municipal Code section (d) (Relocation or removal of encroachment), the Superintendent of Streets may require a permittee, at the permittee s sole expense, to relocate a facility in the rights-of-way as the City deems necessary to maintain or reconfigure the rights-of-way for other public projects or take any actions necessary to protect public health, safety or welfare. Page 49 of 146

50 Concord Municipal Code Chapter WIRELESS COMMUNICATIONS FACILITY Page 1/21 Exhibit 1b Changes and Deletions to Chapter Remove strike through and add underlined language Chapter WIRELESS COMMUNICATION FACILITIES Sections: Purpose Applicability Amateur radio antennas and other exempt facilities Permit requirements Supplemental submittal requirements Peer review Collocation facilities Location General requirements. Page 50 of 146

51 Concord Municipal Code Chapter WIRELESS COMMUNICATIONS FACILITY Page 2/ Design standards Exception to requirements Findings Minor changes to approved wireless communication facilities Abandonment procedure Purpose. The purpose of this chapter is to establish standards consistent with federal and state law for the placement and design of wireless communication facilities including telecommunication antennas and related facilities and other aboveground structures used for the purposes of transmitting voice and data. These standards provide for the managed development of antennas and wireless communication facilities in a manner that recognizes and enhances the community benefits of wireless communication technology, while also preserving the health, welfare, and visual character of the city with well-designed and appropriately located facilities. [Ord DC ] Applicability. The provisions of this chapter shall apply to all wireless communication facilities except those facilities specifically exempted by CDC (Amateur radio antennas and other exempt facilities). [Ord DC ] Amateur radio antennas and other exempt facilities. A wireless communication facility (hereinafter facility or facilities ) shall be exempt from the provisions of this chapter if, and to the extent that, a permit, registration, or Page 51 of 146

52 Concord Municipal Code Chapter WIRELESS COMMUNICATIONS FACILITY Page 3/21 decision issued by the California Public Utilities Commission (CPUC) or the rules and regulations of the Federal Communications Commission (FCC) specifically provide that the antenna is exempt from local regulation. The following facilities are subject to compliance with other applicable provisions of this title and the provisions specified below, but are exempt from the other requirements of this chapter (CDC to ). A. Amateur Radio Antennas. The following provisions shall apply to all antennas which are a part of an amateur radio system, in accordance with FCC regulations as set forth in FCC Order PRB-1 (101 FCC 2d 952 (1985)) and California Government Code Section : 1. Prohibited Location. Amateur radio antennas and amateur radio antenna structures, including antennas and attachments, shall not be allowed in front yard areas from the building to the front property line or within required front yard setbacks, whichever is greater. 2. Setbacks. Amateur radio antennas shall comply with the required exterior side yard, interior side yard, and rear yard setbacks for the respective zoning district. 3. Building Permit. Amateur radio antennas and support structures shall require building permit approval including approval by the planning division. 4. Location Modification. The planning division may require a change to the location where the amateur radio antennas are placed to ensure maximum safety. 5. Height. The maximum height of an amateur radio antenna or antenna structure, when fully extended, shall not exceed the height of the underlying zoning district or 30 feet in height above grade level, whichever is lower. 6. Minor Use Permit. Amateur radio antennas or freestanding amateur radio antenna support structures exceeding 30 feet in height shall require approval of a Page 52 of 146

53 Concord Municipal Code Chapter WIRELESS COMMUNICATIONS FACILITY Page 4/21 minor use permit in accordance with Chapter CDC (Minor Use Permits and Use Permits). In addition to the submittal requirements for a minor use permit, applications shall be accompanied by sufficient documentation to demonstrate the structural design specifications of the support structure. In approving a minor use permit, the zoning administrator shall consider the following factors: a. The aesthetic impact of the amateur radio antenna structure, including unreasonable interference with views from neighboring properties; b. The reasons that the amateur radio antenna structure needs to exceed 30 feet, such as the need to engage in emergency communications during a natural disaster or other emergency; c. Compliance with CDC (General requirements) and CDC (Design standards) for wireless communications facilities; d. The amateur radio antenna structure complies with all applicable provisions of the Uniform Building Code and National Electrical Code; and e. Conditions of approval such as: screening the amateur radio antenna structure with vegetation or other means, painting the structure with nonreflective paint finishes, requiring the antenna structure to have a retractable design, and limiting the length and diameter of antenna booms and diameter of the antenna structure. B. Satellite Earth Station (SES) Antennas. SES antennas are exempt from this chapter if they are two meters (78 inches) or less in diameter, located in any nonresidential zoning district, and meet the following requirements: 1. Located entirely on site; Page 53 of 146

54 Concord Municipal Code Chapter WIRELESS COMMUNICATIONS FACILITY Page 5/21 2. Placed on top of buildings and as far away from the edge of the roof as possible; 3. Not located within the required front yard setback or within any front yard area from the building to the front property line, whichever is greater or within any required exterior side yard, interior side yard, or rear yard setback; 4. Not located within any parking or loading area; and 5. If located on the roof, the antennas shall be painted the same color as the roof, or a similar, noncontrasting color. C. Parabolic Antennas, Direct Broadcast Satellite (DBS), Multipoint Distribution Service (MDS) and Television Broadcast Service (TVBS) Antennas. The following are exempt from the requirements of this chapter: 1. Direct broadcast satellite (DBS) and multipoint distribution service (MDS) antennas which are one meter (39 inches) or less in diameter or diagonal measurement. 2. Television broadcast service (TVBS) antennas, as long as they are located entirely on site and are mounted on a mast that is 12 feet or less in height. D. Cellular on Wheels. In the event of a disaster, temporary facilities used to assist emergency agencies may be allowed on a temporary basis. E. Minor Modification to Existing Wireless Tower or Base Station. Modifications to existing wireless towers or base stations (i.e., equipment cabinets) that do not substantially change the physical dimensions of the tower or base station as defined by Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012 are exempt. This exemption does not apply to wireless facilities proposed on light standards, buildings, utilities, or any structure that was not originally designed for use as a wireless Page 54 of 146

55 Concord Municipal Code Chapter WIRELESS COMMUNICATIONS FACILITY Page 6/21 tower. Applicants requesting this exemption shall submit plans and a project description explaining how the project is exempt. [Ord. 12-5; Ord DC ] Permit requirements. Wireless communication facilities include antennas and all related equipment, antenna support structures, and other improvements for the provision of wireless communications. Such facilities shall be classified as Category 1 or Category 2 facilities, as noted below. All new facilities and major modifications to existing facilities shall obtain the following permits in accordance with Chapter CDC (Administrative Permits) and Chapter CDC (Minor Use Permits and Use Permits), unless specifically exempted in CDC (Amateur radio antennas and other exempt facilities): A. Category 1 Facility. An administrative permit shall be required for all Category 1 facilities, including: 1. A wireless communication facility co-located on an approved wireless communication collocation facility that is in compliance with the standards in this chapter; 2. A wireless communication facility flush mounted to a building facade or within a building component or architectural feature; 3. A wireless communication facility placed on a building roof that is positioned strategically hidden behind screening or sheathing or otherwise designed to fully mitigate its visual impacts so that it is not visible from the public right-of-way or adjacent properties; 4. A wireless communication facility attached to an existing light pole or utility pole, either on private property or within the right-of-way, where it does not exceed the Page 55 of 146

56 Concord Municipal Code Chapter WIRELESS COMMUNICATIONS FACILITY Page 7/21 height of the existing pole or change the visual profile of the existing structure, including cabinets or equipment enclosures; and 5. Cellular on Wheels (COWs). Portable telecommunication equipment to be deployed for seven days or less. B. Category 2 Facility. A minor use permit shall be required for all Category 2 facilities, including: 1. A wireless communication facility proposed on a new antenna support structure or attached to another freestanding structure such as a light pole or utility pole when the height or profile of the existing structure will be altered; 2. A new collocation facility that meets the requirements of CDC ; 3. Any wireless communication facility other than those defined as a Category 1 facility; and 4. Cellular on wheels (COWs). Portable telecommunication equipment to be deployed for more than seven days. C. Design and Site Development Review. The planning division may refer any application for a Category 1 or Category 2 facility to the design review board for a recommendation or to the planning commission for a decision, if it is determined that the proposed facility may involve a significant design or policy issue. [Ord DC ] Supplemental submittal requirements. Applications for wireless communication facilities shall be completed, filed, and processed in accordance with Division VII of this title (Permits and Permit Procedures). Page 56 of 146

57 Concord Municipal Code Chapter WIRELESS COMMUNICATIONS FACILITY Page 8/21 In addition to the information identified in the administrative permit checklist or minor use permit checklist, as appropriate, on file with the planning division, and all applicable fees (see city fee schedule), the following information shall also be submitted with each application: A. The type of wireless communication services to be provided by the facility at this location; B. A coverage map showing all existing and planned facility sites within the city and adjacent to the city boundaries that serve the city and are owned and/or operated by the service operator; C. Names, addresses, and telephone numbers of the owner of the facility and the person that will be responsible for its operation and maintenance; D. Proposed access roads, parking areas, and utility connections; E. Documentation demonstrating that the facility will comply with applicable radio frequency (RF) emission standards as adopted by the Federal Communications Commission (FCC). Such documentation may be satisfied by a written demonstration of compliance with FCC Bulletin OET-65, as amended; F. Manufacturer s specifications and/or written description of potential noise to be generated by the facility, such as retractable monopole motors, antenna rotators, power generation and related equipment, including estimated times, frequency, duration and decibel levels of the noise; G. Visual impact assessment, including existing site photos and photo simulations of the antennas and equipment from a minimum of four vantage points to accurately reflect the appearance of the facility from public areas and adjacent residential areas, if applicable, accompanied by a key map showing the location and direction of each photo. The photos shall represent the expected views from the public realm and neighboring Page 57 of 146

58 Concord Municipal Code Chapter WIRELESS COMMUNICATIONS FACILITY Page 9/21 properties and shall include at least one photo taken at a minimum radius of at least 1,000 feet from the proposed site; H. Documentation that the operator has obtained all licenses and/or approvals required by federal and/or state agencies. [Ord DC ] Peer review. Due to the technical nature of methodologies and analyses, the city may require that an independent qualified consultant review and evaluate the technical and other aspects of the proposal, at the applicant s expense, in order to aid the city in their review of the proposal. The review may address any or all of the following, at the direction of the city: A. Accuracy and completeness of submissions; B. Applicability of analysis techniques and methodologies; C. Validity of conclusions reached; D. Identification of alternative sites or analysis of the suitability of alternative sites; E. Compliance with applicable emission standards; F. Potential for interference with consumer electronic products and/or public safety communications; G. Appropriateness of granting any requested exceptions; or H. Other specific technical issues as determined by the planning division. [Ord DC ]. Page 58 of 146

59 Concord Municipal Code Chapter WIRELESS COMMUNICATIONS FACILITY Page 10/ Collocation facilities. Collocation and shared location of wireless communications facilities are encouraged to minimize the number of stand-alone facilities. Collocation and shared location sites shall not be encouraged when they create or significantly increase adverse effects or where the applicant provides technical evidence that demonstrates to the satisfaction of the city that it is not feasible due to service impairment or operational failures. A. Where appropriate, new Category 2 facilities shall be designed to provide for collocation and shared location opportunities by other carriers. Where appropriate, multiple support structures may be approved. B. Antenna support and equipment structures shall be designed to consolidate antennas and equipment into a single facility. C. Antenna support and equipment structures, including poles, towers, parking areas, access roads, utilities, and equipment buildings, shall be sized to accommodate additional site users. In the event collocation is found not to be feasible or creates unwanted visual impacts, a written analysis shall be provided stating the factors that make collocation infeasible or a visual analysis shall be provided that demonstrates undesired visual impacts. [Ord DC ] Location. A. Location Standards. New facilities shall be allowed as follows: 1. Category 1 facilities shall be permitted in all zoning districts. 2. Category 2 facilities shall be: Page 59 of 146

60 Concord Municipal Code Chapter WIRELESS COMMUNICATIONS FACILITY Page 11/21 a. Discouraged within any open space parcel, unless attached to a major transmission facility or other utility infrastructure, when the equipment can be located within the footprint of the tower structure or other existing improvements and completely screened through stealth or camouflage methods; b. Prohibited on property developed with a single-family residential dwelling within a residential zoning district; and c. Discouraged within 300 feet of any residential dwelling. B. Location Preference. The city s preferred location for wireless communication facilities is as follows: 1. Flush mounted on a building or roof mounted and architecturally screened are preferred over ground mounted facilities; 2. Collocated with an approved wireless communication collocation facility; 3. Attached to an existing utility or light standard that is not directly adjacent to or visible from the public right-of-way or does not alter the height or general visibility of the existing utility pole or light standard; and 4. Ground mounted facilities that incorporate camouflage or stealth features. [Ord DC ] General requirements. Unless otherwise specifically described in this section, the following standards shall apply to all wireless communication facilities: Page 60 of 146

61 Concord Municipal Code Chapter WIRELESS COMMUNICATIONS FACILITY Page 12/21 A. Siting. Unless otherwise specifically described in this section, facilities shall be sited to avoid adverse safety and aesthetic impacts. Facilities shall: 1. Not occupy or displace required parking spaces or landscape areas; 2. Not be placed within a street side yard, front yard area, or other area between the building and any public or private street adjoining the parcel unless completely screened or camouflaged, except for facilities attached to an existing utility or light pole that meet the other requirements of this chapter; 3. Be sited below the ridgeline in hillside areas and be designed sufficiently with screening or camouflage to mitigate their visibility on the ridgeline profile; and 4. Be prohibited where special painting or lighting will be required by Federal Aviation Administration (FAA) regulations, unless it can be found that the required painting or lighting will not have a visual impact. B. Noise. All facilities shall be constructed and operated in such a manner as to minimize the amount of disruption caused to nearby residents, businesses, and nearby recreational areas such as public parks and trails. With the exception of construction noise that meets the facilities conditions of approval, any noise generated by the facility shall not exceed the noise standards in the Concord 2030 General Plan. Operation of back-up generators and batteries shall be limited to power outages or testing and maintenance purposes only. C. Lighting. Exterior lighting shall be limited to the following: 1. A manually operated or motion-detector-controlled light above any accessory structure, which shall be kept off except when personnel are actually present at night; Page 61 of 146

62 Concord Municipal Code Chapter WIRELESS COMMUNICATIONS FACILITY Page 13/21 2. The minimum tower lighting required by FAA regulations; 3. Lighting shall be shielded or directed to the greatest extent possible in such a manner as to minimize the amount of light that falls onto nearby properties, particularly residences; and 4. Aircraft warning lighting shall be provided when required by FAA regulations. The warning lighting shall be designed to minimize light trespass to ground-based structures within viewing range of any wireless communication facility. D. Facility Maintenance. All facilities and related equipment, including lighting, fences, shields, cabinets, and poles, shall be maintained in good repair, free from trash, debris, litter, graffiti, and other forms of vandalism, and any damage from any cause shall be repaired as soon as reasonably possible so as to minimize occurrences of dangerous conditions or visual blight. Graffiti shall be removed by the service provider from any facility or equipment as soon as practicable, and in no instances more than 48 hours from the time of notification by the city. E. Security. All facilities shall be properly secured to prevent unauthorized access. F. Height. The height of facilities shall be as follows: 1. The minimum necessary without compromising reasonable reception or transmission; 2. A maximum of 12 feet above the height of the main structure. The burden of proof to demonstrate the need for additional height beyond 12 feet over the height of the main structure shall be supported by objective, reliable data by the service provider; Page 62 of 146

63 Concord Municipal Code Chapter WIRELESS COMMUNICATIONS FACILITY Page 14/21 3. No taller than the limit established by zoning district. The burden of proof to demonstrate the need for a height that exceeds the height limit established for the zoning district shall be supported by objective, reliable data by the service provider; 4. The height limits established for the Buchanan Field Airport or the John Muir Medical Center helipad as specified in the general plan. Heights may be further reduced to meet FCC and FAA height restrictions near these facilities; and 5. When additional height is requested, as provided for in subsections (F)(2) and (3) of this section, a peer review of the data submitted to support the additional height shall be required at the discretion of the planning division. G. Ancillary Equipment, Equipment Cabinets, and Equipment Enclosures. Base stations, equipment cabinets, back-up generators, and other equipment shall be installed as follows: 1. Fully screened from view by placing the equipment: a. On the rooftop and fully screened with parapet walls or screens; b. Within an existing building; c. Underground; and/or d. Within an enclosure located adjacent to, and integrated into, the design of the primary structure on the site. 2. If subsection (G)(1) of this section is not feasible, then one or more of the following design strategies shall be employed to reduce or eliminate the visual impact of the equipment: Page 63 of 146

64 Concord Municipal Code Chapter WIRELESS COMMUNICATIONS FACILITY Page 15/21 a. Maintain existing landscaping or provide additional landscaping to screen the equipment from public viewpoints; b. Where appropriate in a natural setting, design facilities to appear as natural features found in the immediate area, such as trees or rocks; c. Screen the facility with architecturally compatible design and materials to the primary building on site; and d. Where the screening opportunities are limited, employ innovative design solutions (i.e., disguise the facility as a landscape element or public art). H. Landscaping. When landscaping is required or proposed to screen a facility, a landscape and irrigation plan shall be submitted with the application. The landscaping shall be subject to the following: 1. The landscape plan shall: a. Identify all existing and proposed trees, foliage, and other landscaping elements, whether or not used as screening, indicating size and species; and b. Identify the height of proposed screening materials at planting, six months, and one year. 2. Landscaping shall be maintained in good condition at all times in compliance with the approved landscape plan; 3. The facility owner or operator shall be responsible for replacing any damaged, dead, or decayed landscaping as promptly as reasonably possible; and 4. A landscape maintenance agreement shall be required. Page 64 of 146

65 Concord Municipal Code Chapter WIRELESS COMMUNICATIONS FACILITY Page 16/21 I. Signs. Advertising signs or identifying logos shall be prohibited on any facility, except for small identification plates used for emergency notification or containing information required by the FCC. [Ord DC ] Design standards. Wireless communication facilities shall be placed within the existing context where topography, vegetation, buildings, or structures provide the greatest amount of screening, and they shall incorporate the following design standards, as appropriate: A. Stealth or Camouflage Techniques. Facilities shall incorporate the following design elements to hide or camouflage the facility: 1. Design and Finish. The design, finish, colors, and texture shall be painted with a nonreflective finish that blends with the surrounding natural and/or developed environment. The color selected shall be one that minimizes the visual impact to the greatest extent possible. Facilities that will be primarily viewed against soils, trees, grasslands, or sky shall be painted or repainted colors matching these landscapes. 2. Screening. Facilities shall be screened by structures and landscaping to the maximum extent possible without unduly compromising reception when not of a camouflage design. 3. Design Integration. Fencing, landscaping, and other screening shall be integrated and compatible with surrounding improvements. 4. Category 2. Freestanding antenna support structures. See additional camouflage requirements under the Category 2 requirements in CDC (A)(2)(a). B. Building-Mounted Facilities. All facilities shall be: Page 65 of 146

66 Concord Municipal Code Chapter WIRELESS COMMUNICATIONS FACILITY Page 17/21 1. In scale and architecturally integrated with the building design. Screening may include locations within attics, steeples, or towers, behind and below parapets, or concealed by additions which are architecturally compatible with the existing building. 2. Below the roofline if placed on a building wall, and camouflaged or screened with a texture and color similar to the existing building material. 3. Located as far away from the edge of the building as technically feasible when mounted on a roof. Antennas and all associated mounting hardware, equipment, and cables shall be screened with a texture and color similar to the existing building material. C. Facilities Attached to Existing Facilities or Structures. When placed on light standards, water tanks, or other similar structures, all facilities shall be: 1. Located below existing lights on light standards where the height of existing light pole is not being increased to accommodate new facilities. Where a replacement light pole is permitted, the lighting pattern of the replaced lights shall be the same as the original light pole. 2. Placed on existing structures to reduce visibility and painted or screened to blend with the structure. 3. Incorporated into power utility transmission towers, which may include antenna placement above the towers (only permitted if not within a street right-of-way or immediately adjacent to a street). 4. Designed to incorporate equipment shelters behind existing or expanded wall screens. Page 66 of 146

67 Concord Municipal Code Chapter WIRELESS COMMUNICATIONS FACILITY Page 18/21 D. Freestanding Antenna Support Structures. All freestanding facilities shall: 1. Be camouflaged. 2. Use screening cylinders for mounted antennas and associated hardware, equipment, and cables. 3. Not be supported with guy wires or other similar support structures. 4. Be compatible with surrounding vertical elements, e.g., trees or buildings. 5. Structures designed as trees shall be similar to and blend with surrounding tree species. Planting of additional trees may be required. 6. Include design details to provide a realistic appearance, such as the following: a. Tree structures shall incorporate limbs that extend to within 10 feet of the ground level. Limbs shall be tapered and branch count shall be adequate to provide visual authenticity; b. Bark cladding shall be included on all trees and applied consistently to the entire trunk and to all branches; and c. Facilities camouflaged as palm trees shall incorporate growth pods that enclose all of the antennas. [Amended during 2014 recodification; Ord DC ] Exception to requirements. Applications for facilities that do not comply with applicable standards in this chapter shall submit graphic and written documentation describing all alternatives that were Page 67 of 146

68 Concord Municipal Code Chapter WIRELESS COMMUNICATIONS FACILITY Page 19/21 considered to meet the development standards, but were deemed infeasible. This shall include a coverage map showing the location of each alternative site considered, accompanied by a report signed by an independent, licensed radio engineer documenting why the alternative site cannot be reasonably accommodated due to the technical requirements of the facility such as coverage requirements imposed by the FCC or otherwise, or other factors beyond the applicant s reasonable control. When the planning division determines that an alternate location is more desirable, the burden of proof shall be on the applicant to show that the alternate location is not feasible or reasonable for signal access. [Ord DC ] Findings. In addition to the findings required in Chapter CDC (Administrative Permits) and Chapter CDC (Minor Use Permits and Use Permits), the review authority shall make the following additional findings: A. All applicable standards in this chapter have been met; B. The facility will be substantially screened from the view of surrounding properties and public views or otherwise substantially camouflaged; and C. Special design considerations have been incorporated into or applied to the facility to ensure that the facility will not have an adverse visual impact to the surrounding properties or public views. [Ord DC ] Minor changes to approved wireless communication facilities. The planning division shall determine if a proposed modification to plans, operating standards, and/or design of an existing or previously approved facility is a minor or major modification based on the criteria in this section. Page 68 of 146

69 Concord Municipal Code Chapter WIRELESS COMMUNICATIONS FACILITY Page 20/21 A. Minor Modification. Proposed modifications that are deemed to be in substantial compliance with the original project approval may be approved administratively. Minor modifications shall meet the following criteria, as applicable: 1. Modifications are consistent with the requirements of this chapter. 2. Modifications are part of routine maintenance, which includes replacement of equipment that has a substantially equal appearance and uses identical technologies. The applicant shall provide documentation demonstrating compliance with this requirement. 3. Modifications do not include significant revisions to the site layout, floor plan, physical design, or size of the facility. 4. Modifications are insubstantial such as: a. Minor color changes; b. Minor landscaping changes; and c. Minor material specification or architectural detail changes, if of equal or greater quality. 5. Modifications comply with FCC requirements. The applicant shall provide documentation demonstrating compliance with this requirement. 6. Modifications do not require changes to the conditions of approval. 7. Modifications are not likely to generate neighborhood interest or concern. Page 69 of 146

70 Concord Municipal Code Chapter WIRELESS COMMUNICATIONS FACILITY Page 21/21 8. An increase in the number of antennas, not to exceed 25 percent of the original approval, provided the increase does not require additional height of the antenna support structure, does not create a negative visual impact, and does not increase the RF emissions over the legal limit. 9. Modification does not propose changes to an item specifically approved or discussed during the original project hearing as reflected in the record. 10. Modifications meet the intent of original project approval and do not involve significantly different design concepts. Any architectural or design changes shall maintain or upgrade the quality of the original approval. 11. Modifications do not require expansion of ground mounted equipment facilities. B. Major Modification. Proposed modifications that do not meet the criteria, as specified in this section, shall require a new application, subject to CDC (Permit requirements). C. The planning division shall determine the submittal materials necessary to evaluate the proposed modification, in addition to plans demonstrating the proposed change. [Ord DC ] Abandonment procedure. If, after becoming operational, a wireless communication facility has been out of use for 12 continuous months, the facility and all appurtenant structures shall be deemed abandoned. If the planning division determines that the facility has been abandoned, the applicant shall be required to remove all equipment from the premises within 60 calendar days of receipt of written notice from the city to abate and restore the site to its original preconstruction condition. If such facilities are not removed within 60 days, the city may remove the facility at the last operator s expense. [Ord DC ]. Page 70 of 146

71 Exhibit 2 Changes and Deletions to Chapter Remove strike through and add underlined language Chapter Chapter (JULY 19, 2017) DRAFT WIRELESS COMMUNICATION FACILITIES ORDINANCE FOR ELIGIBLE FACILITIES REQUESTS Sections: Legislative Intent Definitions Applicability Prior Approvals Required Application Requirements Decisions Standard Conditions of Approval Legislative intent. A. Background. Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L , codified as 47 U.S.C. 1455(a) ( Section 6409 ), generally requires that State and local governments may not deny, and shall approve requests to collocate, remove or replace transmission equipment at an existing tower or base station. Federal Communication Commission ( FCC ) regulations interpret this statute and establish procedural rules for local review, which generally preempt certain subjective land-use Page 71 of 146

72 regulations, limit permit application content requirements and provide the applicant with a potential deemed granted remedy when the State or local government fails to approve or deny the request within 60 calendar days after submittal (accounting for any tolling periods). Moreover, whereas Section 704 of the Telecommunications Act of 1996, Pub. L , codified as 47 U.S.C. 332, applies to only personal wireless service facilities (e.g., cellular telephone towers and equipment), Section 6409 applies to all wireless facilities licensed or authorized by the FCC (e.g., cellular, Wi-Fi, satellite, microwave backhaul, etc.). B. Findings. The City Council finds that the overlap between wireless deployments covered under Section 6409 and other wireless deployments, combined with the different substantive and procedural rules applicable to such deployments, creates a potential for confusion that harms the public interest in both efficient wireless facilities deployment and carefully planned community development in accordance with local values. The City Council further finds that a separate permit application and review process specifically designed for compliance with Section 6409 contained in a chapter devoted to Section 6409 will mitigate such potential confusion, streamline local review and preserve the City s land-use authority to maximum extent possible. C. Legislative Intent. The City of Concord intends this Chapter to establish reasonable and uniform standards and procedures in a manner that protects and promotes the public health, safety and welfare, consistent with and subject to federal and California state law, for wireless facilities collocations and modifications pursuant to Section 6409, and related FCC regulations codified in 47 C.F.R et seq. as may be amended or superseded in the future. This Chapter is not intended to, nor shall it be interpreted or applied to: 1. prohibit or effectively prohibit any personal wireless service provider s ability to provide personal wireless services; 2. prohibit or effectively prohibit any entity s ability to provide any interstate or intrastate telecommunications service, subject to any competitively neutral and nondiscriminatory rules, regulations or other legal requirements for rights-of-way management; Page 72 of 146

73 3. unreasonably discriminate among providers of functionally equivalent services; 4. deny any request for authorization to place, construct or modify personal wireless service facilities on the basis of environmental effects of radio frequency emissions to the extent that such wireless facilities comply with the FCC s regulations concerning such emissions; 5. prohibit any collocation or modification that the City may not deny under federal or California state law; 6. impose and unfair, unreasonable, discriminatory or anticompetitive fees that exceed the reasonable cost to provide the services for which the fee is charged; or 7. otherwise authorize the City to preempt any applicable federal or California state law Definitions. The abbreviations, phrases, terms and words used in this Chapter will have the meanings assigned to them in this section or, as may be appropriate, in Concord Municipal Code Chapter Article II (Definitions), as may be amended from time to time, unless context indicates otherwise. Undefined phrases, terms or words in this section will have the meanings assigned to them in 47 U.S.C. 702, as may be amended from time to time, and, if not defined therein, will have their ordinary meanings. In the event that any definition assigned to any phrase, term or word in this Chapter conflicts with any federal or state-mandated definition, the federal or state-mandated definition will control. Page 73 of 146

74 Base station means the same as defined by the FCC in 47 C.F.R (b)(1), as may be amended, which defines that term as a structure or equipment at a fixed location that enables FCC-licensed or authorized wireless communications between user equipment and a communications network. The term does not encompass a tower as defined in 47 C.F.R (b)(9) or any equipment associated with a tower. The term includes, but is not limited to, equipment associated with wireless communications services such as private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul. The term includes, but is not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including distributed antenna systems and small-cell networks). The term includes any structure other than a tower that, at the time the relevant application is filed with the State or local government under this section, supports or houses equipment described in 47 C.F.R (b)(1)(i)-(ii) that has been reviewed and approved under the applicable zoning or siting process, or under another State or local regulatory review process, even if the structure was not built for the sole or primary purpose of providing such support. The term does not include any structure that, at the time the relevant application is filed with the State or local government under this section, does not support or house equipment described in 47 C.F.R (b)(1)(i)-(ii). Collocation means the same as defined by the FCC in 47 C.F.R (b)(2), as may be amended, which defines that term as the mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes. As an illustration and not a limitation, the FCC s definition effectively means to add and does not necessarily refer to more than one wireless facility installed at a single site. CPCN means a Certificate of Public Convenience and Necessity granted by the CPUC or its duly appointed successor agency pursuant to California Public Utilities Code 1001 et seq., as may be amended. Page 74 of 146

75 CPUC means the California Public Utilities Commission established in the California Constitution, Article XII, 5, or it s duly appointed successor agency. Director means the Community and Economic Development Director or the Community and Economic Development Director s designee. Eligible facilities request means the same as defined by the FCC in 47 C.F.R (b)(3), as may be amended, which defines that term as any request for modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station, involving: (i) collocation of new transmission equipment; (ii) removal of transmission equipment; or (iii) replacement of transmission equipment. Eligible support structure means the same as defined by the FCC in 47 C.F.R (b)(4), as may be amended, which defines that term as any tower or base station as defined in this section, provided that it is existing at the time the relevant application is filed with the State or local government under this section. Existing means the same as defined by the FCC in 47 C.F.R (b)(4), as may be amended, which provides that a constructed tower or base station is existing for purposes of the FCC s Section 6409 regulations if it has been reviewed and approved under the applicable zoning or siting process, or under another State or local regulatory review process, provided that a tower that has not been reviewed and approved because it was not in a zoned area when it was built, but was lawfully constructed, is existing for purposes of this definition. FCC means the Federal Communications Commission or its duly appointed successor agency. Page 75 of 146

76 RF means radio frequency or electromagnetic waves generally between 30 khz and 300 GHz in the electromagnetic spectrum range. Section 6409 means Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. No , 126 Stat. 156, codified as 47 U.S.C. 1455(a), as may be amended. Site means the same as defined by the FCC in 47 C.F.R (b)(6), as may be amended, which provides that for towers other than towers in the public rights-of-way, the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site, and, for other eligible support structures, further restricted to that area in proximity to the structure and to other transmission equipment already deployed on the ground. Substantial change means the same as defined by the FCC in 47 C.F.R (b)(7), as may be amended, which defines that term differently based on the particular wireless facility type (tower or base station) and location (in or outside the public right-of-way). For clarity, this definition organizes the FCC s criteria and thresholds for a substantial change according to the wireless facility type and location. 1. For towers outside the public rights-of-way, a substantial change occurs when: a. the proposed collocation or modification increases the overall height more than 10% or the height of one additional antenna array not to exceed 20 feet (whichever is greater); or b. the proposed collocation or modification increases the width more than 20 feet from the edge of the wireless tower or the width of the wireless tower at the level of the appurtenance (whichever is greater); or Page 76 of 146

77 c. the proposed collocation or modification involves the installation of more than the standard number of equipment cabinets for the technology involved, not to exceed four; or d. the proposed collocation or modification involves excavation outside the current boundaries of the leased or owned property surrounding the wireless tower, including any access or utility easements currently related to the site. 2. For towers in the public rights-of-way and for all base stations, a substantial change occurs when: a. the proposed collocation or modification increases the overall height more than 10% or 10 feet (whichever is greater); or b. the proposed collocation or modification increases the width more than 6 feet from the edge of the wireless tower or base station; or c. the proposed collocation or modification involves the installation of any new equipment cabinets on the ground when there are no existing groundmounted equipment cabinets; or d. the proposed collocation or modification involves the installation of any new ground-mounted equipment cabinets that are ten percent (10%) larger in height or volume than any existing ground-mounted equipment cabinets; or e. the proposed collocation or modification involves excavation outside the area in proximity to the structure and other transmission equipment already deployed on the ground. 3. In addition, for all towers and base stations wherever located, a substantial change occurs when: a. the proposed collocation or modification would defeat the existing concealment elements of the support structure as reasonably determined by the Director; or b. the proposed collocation or modification violates a prior condition of approval, provided however that the collocation need not comply with any prior condition of approval related to height, width, equipment cabinets or Page 77 of 146

78 excavation that is inconsistent with the thresholds for a substantial change described in this section. Tower means the same as defined by the FCC in 47 C.F.R (b)(9), as may be amended, which defines that term as any structure built for the sole or primary purpose of supporting any FCC-licensed or authorized antennas and their associated facilities, including structures that are constructed for wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul, and the associated site. Examples include, but are not limited to, monopoles, monotrees and lattice towers. Transmission equipment means the same as defined by the FCC in 47 C.F.R (b)(8), as may be amended, which defines that term as equipment that facilitates transmission for any FCC-licensed or authorized wireless communication service, including, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, and regular and backup power supply. The term includes equipment associated with wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul. Wireless means any FCC-licensed or authorized wireless communication service transmitted over frequencies in the electromagnetic spectrum. Wireless communication facility or wireless facility means the collective or combined equipment, network components or eligible support structures that are necessary or integral in providing personal wireless services, including but not limited to antennas, transmission equipment, towers, and base stations, or as otherwise defined by state or federal law and regulations. Page 78 of 146

79 Applicability. This Chapter applies to all requests for approval to collocate, replace or remove transmission equipment at an existing wireless tower or base station submitted pursuant to Section Even if the proposed project would otherwise require an Administrative Permit or a Minor Use Permit, requests submitted for approval pursuant to Section 6409 must be first reviewed under this Chapter. If the approval authority finds that the project qualifies for approval under Section 6409, then no Administrative Permit or Minor Use Permit will be required. However, the applicant may voluntarily elect to seek an Administrative Permit or a Minor Use Permit under Chapter either in lieu of a section 6409 approval or after the approval authority finds that an application does not qualify for approval pursuant to Section Prior Approvals Required. A. Section 6409 Approval. Any request to collocate, replace or remove transmission equipment at an existing wireless tower or base station submitted with a written request for approval under Section 6409 shall require an amendment to the underlying use permit for the tower or base station (each amendment a section 6409 approval ) subject to the Director s approval, conditional approval or denial without prejudice pursuant to the standards and procedures contained in this Chapter. B. Other Permits and Regulatory Approvals. No collocation or modification approved pursuant to this Chapter may occur unless the applicant also obtains all other permits and regulatory approvals as may be required by any other federal, state or local government agencies, which includes without limitation building permits, encroachment permits, electrical permits and any other permits and/or regulatory approvals issued by other departments or divisions within the City. Furthermore, any section 6409 approval granted under this Chapter shall remain subject to any and all lawful conditions and/or legal requirements associated with such other permits or regulatory approvals. Page 79 of 146

80 Application Requirements. A. Application Required. The Director shall not approve any request for a collocation or modification submitted for approval pursuant to Section 6409 except upon a duly filed application consistent with this section and any other written rules the City or the Director may establish from time to time in any publicly-stated format. B. Application Content. All applications for a section 6409 approval must include all the content, information and materials required by the Director for the application. The City Council authorizes the Director to develop, publish and from time to time update or amend permit application requirements, forms, checklists, guidelines, informational handouts and other related materials that the Director finds necessary, appropriate or useful for processing requests for section 6409 approvals. The City Council further authorizes the Director to establish other reasonable rules and regulations, which may include without limitation regular hours for appointments with applicants, as the Director deems necessary or appropriate to organize, document and manage the application intake process. All such rules and regulations must be in written form and publicly stated to provide applicants with prior notice. C. Procedures for a Duly Filed Application. Any application for a section 6409 approval will not be considered duly filed unless submitted in accordance with the procedures in this section (C). 1. Pre-Submittal Conference. Before application submittal, the applicant must schedule and attend a pre-submittal conference with the Director for all proposed collocations or modifications to any concealed, camouflaged or stealth wireless tower or base station or on structures in the public right-of-way. Pre-submittal conferences for all other proposed collocations or modifications are strongly encouraged by not required. The pre-submittal conference is intended to streamline the review process Page 80 of 146

81 through informal discussion that includes, without limitation, the appropriate project classification and review process, including whether the project qualifies for approval pursuant to Section 6409 or not; any latent issues in connection with the existing wireless tower or base station, including compliance with generally applicable rules for public health and safety; potential concealment issues or concerns (if applicable); coordination with other City departments responsible for application review; and application completeness issues. To mitigate unnecessary delays due to application incompleteness, applicants are encouraged (but not required) to bring any draft applications or other materials so that City staff may provide informal feedback and guidance about whether such applications or other materials may be incomplete or unacceptable. The City may require a fee or deposit to reimburse the City for its reasonable costs to provide the services rendered in the pre-submittal conference. The Director may, in the Director s discretion, grant a written exemption to the submittal appointment under section (C)(2) and/or for a specific requirement for a complete application to any applicant who (i) schedules, attends and fully participates in any pre-submittal conference and (ii) shows to the Director s satisfaction that such specific requirement duplicates information already provided in other materials to be submitted or is otherwise unnecessary to the City s review under facts and circumstances in that particular case. Any written exemption will be limited to the project discussed at the pre-submittal conference and will not be extended to any other project. 2. Submittal Appointment. All applications must be submitted in-person to the City at a pre-scheduled appointment with the Director. Applicants may generally submit one application per appointment, but may schedule successive appointments for multiple applications whenever feasible and not prejudicial to other applicants. The Director may develop alternative rules that allowed multiple (i.e., batched ) applications to be submitted at the same time. Any application received without an appointment or the required application fee, whether delivered in-person, by mail or through any other means, will not be considered duly filed unless the applicant received a written exemption from the Director at a pre-submittal conference. Page 81 of 146

82 3. Appointment Scheduling Procedures. For any event in the submittal process that requires an appointment, applicants must submit a written request (such as an ) to the Director. The Director shall use reasonable efforts to provide applicants with an appointment within approximately 15 working days after a written request is received and, if applicable, confirms that the applicant complied with the presubmittal conference requirement. D. Applications Deemed Withdrawn. To promote efficient review and timely decisions, and consistent with Concord Municipal Code section , any application governed under this Chapter will be automatically deemed withdrawn by the applicant when the applicant fails to tender a substantive response to the Director within 180 calendar days after the Director deems the application incomplete in a written notice to the applicant. The Director may, in the Director s discretion, grant a written extension for up to an additional 30 calendar days when the applicant submits a written request prior to the 180th day that shows good cause to grant the extension. Delays due to circumstances outside the applicant s reasonable control will be considered good cause to grant the extension Decisions. A. Public Notice; Administrative Review. The Director shall administratively review a complete and duly filed application for a section 6409 approval and may act on such application without a public hearing not less than 10 calendar days after the applicant posts notice at the project site. The posted notice must contain (1) a general explanation of the proposed collocation or modification; (2) the applicant s identification and contact information as provided on the application submitted to the City; (3) contact information for the approval authority; and (4) a statement substantially similar to Federal Communications Commission regulations may deem this application granted by the operation of law unless the City approves or denies the application within 60 calendar days from the filing date, or the City and applicant reach a mutual tolling agreement. Page 82 of 146

83 B. Decision Notices. Within five working days after the Director acts on an application for a section 6409 approval or before the FCC shot clock expires (whichever occurs first), the Director shall send a written notice to the applicant. In the event that the Director denies the application, the written notice to the applicant must contain (1) the reasons for the decision; (2) a statement that the denial will be without prejudice; and (3) instructions for how and when to file an appeal. C. Required Findings for Approval. The Director may approve or conditionally approve any application for a section 6409 approval when the Director finds that the proposed project: 1. involves collocation, removal or replacement of transmission equipment on an existing wireless tower or base station; and 2. does not substantially change the physical dimensions of the existing wireless tower or base station. D. Criteria for Denial Without Prejudice. Notwithstanding any other provision in this Chapter, and consistent with all applicable federal laws and regulations, the Director may deny without prejudice any application for a section 6409 approval when the Director finds that the proposed project: 1. does not meet the findings required in section (C); 2. involves the replacement of the entire support structure; or 3. violates any legally enforceable law, regulation, rule, standard or permit condition reasonably related to public health and safety, which includes without limitation laws, regulations, rules, standards or permit conditions related to building and electric codes, aviation safety and flood control. Page 83 of 146

84 E. Conditional Approvals. Subject to any applicable limitations in federal or state law, nothing in this Chapter is intended to limit the Director s authority to conditionally approve an application for a section 6409 approval to protect and promote the public health and safety. F. Appeals. Any applicant may appeal the Director s written decision to deny without prejudice an application for section 6409 approval. The written appeal together with any applicable appeal fee must be tendered to the City within 10 calendar days from the Director s written decision, and must state in plain terms the grounds for reversal and the facts that support those grounds. The City Manager shall be the appellate authority for all appeals from the Director s written decision to deny without prejudice an application for section 6409 approval. The City Manager shall review the application de novo; provided, however, that the City Manager s decision shall be limited to only whether the application should be approved or denied in accordance with the provisions in this Chapter and any other applicable laws. The City Manager shall issue a written decision that contains the reasons for the decision, and such decision shall be final and not subject to any further administrative appeals Standard Conditions of Approval. In addition to all other conditions adopted by the approval authority, all section 6409 approvals, whether approved by the approval authority or deemed approved by the operation of law, shall be automatically subject to the conditions in this section The Director (or the City Manager in the City Manager s capacity as the appellate authority) shall have discretion to modify or amend these conditions on a case-by-case basis as may be necessary or appropriate under the circumstances to protect public health and safety or allow for the proper operation of the approved facility consistent with the goals of this Chapter. Permit Term. The City s grant or grant by operation of law of a section 6409 approval constitutes a federally-mandated modification to the underlying permit or other prior Page 84 of 146

85 regulatory authorization for the subject wireless tower or base station, and will be regarded as a modification to the underlying approval for the subject wireless tower or base station. The City s grant or grant by operation of law of a section 6409 approval will not extend the permit term, if any, for any underlying permit or underlying prior regulatory authorization. Accordingly, the term for a section 6409 approval shall be coterminous with the underlying permit or other prior regulatory authorization for the subject tower or base station. This condition shall not be applied or interpreted in any way that would cause the term of the underlying permit for the modified facility to be less than 10 years in total length. A. Compliance Obligations Due to Invalidation. In the event that any court of competent jurisdiction invalidates all or any portion of Section 6409 or any FCC rule that interprets Section 6409 such that federal law would not mandate approval for any section 6409 approval(s), such approval(s) shall automatically expire one year from the effective date of the judicial order, unless the decision would not authorize accelerated termination of previously approved section 6409 approvals or the Director grants an extension upon written request from the permittee that shows good cause for the extension, which includes without limitation extreme financial hardship. Notwithstanding anything in the previous sentence to the contrary, the Director may not grant a permanent exemption or indefinite extension. A permittee shall not be required to remove its improvements approved under the invalidated section 6409 approval when it has obtained the applicable permit(s) or submitted an application for such permit(s) before the one-year period ends. B. City s Standing Reserved. The City s grant or grant by operation of law of a section 6409 approval does not waive, and shall not be construed to waive, any standing by the City to challenge Section 6409, any FCC rules that interpret Section 6409 or any section 6409 approval. C. Strict Compliance with Approved Plans. Before the permittee submits any applications to the Building Division, the permittee must incorporate this section 6409 approval, all conditions associated with this section 6409 approval and the approved photo simulations into the Page 85 of 146

86 project plans (the Approved Plans ). The permittee must construct, install and operate the wireless facility in strict compliance with the Approved Plans. Any 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, who may revoke the section 6409 approval if the Director finds that the requested alteration, modification or other change may cause a substantial change as that term is defined by the FCC in 47 C.F.R (b)(7), as may be amended. D. Build-Out Period. This section 6409 approval will automatically expire one year from the approval or deemed-granted date unless the permittee obtains all other permits and approvals required to install, construct and/or operate the approved wireless facility, which includes without limitation any permits or approvals required by the any federal, state or local public agencies with jurisdiction over the subject property, the wireless facility or its use. The Director may grant one written extension to a date certain when the permittee shows good cause to extend the limitations period in a written request for an extension submitted at least 30 calendar days prior to the automatic expiration date in this condition. E. Maintenance Obligations; Vandalism. The permittee shall keep the site, which includes without limitation any and all improvements, equipment, structures, access routes, fences and landscape features, in a neat, clean and safe condition in accordance with the Approved Plans and all conditions in this section 6409 approval. The permittee shall keep the site area free from all litter and debris at all times. The permittee, at no cost to the City, shall remove and remediate any graffiti or other vandalism at the site within 48 hours after the permittee receives notice or otherwise becomes aware that such graffiti or other vandalism occurred. Each year after the permittee installs the wireless facility, the permittee shall submit a written report to the Director, in a form acceptable to the Director, that documents the then-current site condition. Page 86 of 146

87 F. Property Maintenance. The permittee shall ensure that all equipment and other improvements to be constructed and/or installed in connection with the Approved Plans are maintained in a manner that is not detrimental or injurious to the public health, safety, and general welfare and that the aesthetic appearance is continuously preserved, and substantially the same as shown in the approved plans at all times relevant to this permit. The permittee further acknowledges that failure to maintain compliance with this condition may result in a code enforcement action. G. Compliance with Laws. The permittee shall maintain compliance at all times with all federal, state and local statutes, regulations, orders or other rules that carry the force of law ( Laws ) applicable to the permittee, the subject property, the wireless facility or any use or activities in connection with the use authorized in this section 6409 approval. The permittee expressly acknowledges and agrees that this obligation is intended to be broadly construed and that no other specific requirements in these conditions are intended to reduce, relieve or otherwise lessen the permittee s obligations to maintain compliance with all Laws. In the event that the City fails to timely notice, prompt or enforce compliance with any applicable provision in the Concord Municipal Code, any permit, any permit condition or any applicable law or regulation, the applicant or permittee will not be relieved from its obligation to comply in all respects with all applicable provisions in the Concord Municipal Code, any permit, any permit condition or any applicable law or regulation. H. Adverse Impacts on Other Properties. The permittee shall use all reasonable efforts to avoid any and all undue or unnecessary adverse impacts on nearby properties that may arise from the permittee s or its authorized personnel s construction, installation, operation, modification, maintenance, repair, removal and/or other activities at the site. Impacts of radio frequency emissions on the environment, to the extent that such emissions are compliant with all applicable laws, are not adverse impacts for the purposes of this condition. The permittee shall not perform or cause others to perform any construction, installation, operation, modification, maintenance, repair, removal or other work that involves heavy equipment or machines except during normal construction hours authorized by the Concord Municipal Code. The restricted work hours in this condition will not prohibit any work Page 87 of 146

88 required to prevent an actual, immediate harm to property or persons, or any work during an emergency declared by the City. The Director or the Director s designee may issue a stop work order for any activities that violate this condition. I. Inspections; Emergencies. The permittee expressly acknowledges and agrees that the City s officers, officials, staff or other designee may enter onto the site and inspect the improvements and equipment upon reasonable prior notice to the permittee; provided, however, that the City s officers, officials, staff or other designee may, but will not be obligated to, enter onto the site area without prior notice to support, repair, disable or remove any improvements or equipment in emergencies or when such improvements or equipment threatens actual, imminent harm to property or persons. The permittee will be permitted to supervise the City s officers, officials, staff or other designee while any such inspection or emergency access occurs. J. Permittee s Contact Information. The permittee shall furnish the Planning Division with accurate and up-to-date contact information for a person responsible for the wireless facility, which includes without limitation such person s full name, title, direct telephone number, facsimile number, mailing address and address. The permittee shall keep such contact information up-to-date at all times and immediately provide the Director with updated contact information in the event that either the responsible person or such person s contact information changes. K. Indemnification. The permittee and, if applicable, the property owner upon which the wireless facility is installed shall defend, indemnify and hold harmless the City, its agents, officers, officials, employees and volunteers from any and all (1) damages, liabilities, injuries, losses, costs and expenses and from any and all claims, demands, law suits, writs and other actions or proceedings ( Claims ) brought against the City or its agents, officers, officials, employees or volunteers to challenge, attack, seek to modify, set aside, void or annul the City s approval of this section 6409 approval, and (2) other Claims any kind or form, whether for personal injury, death or property damage, that arise from or in connection Page 88 of 146

89 with the permittee s or its agents, directors, officers, employees, contractors, subcontractors, licensees, or customers acts or omissions in connection with this section 6409 approval or the wireless facility. In the event the City becomes aware any Claims, the City will use best efforts to promptly notify the permittee and the private property owner and shall reasonably cooperate in the defense. The permittee expressly acknowledges and agrees that the City shall have the right to approve, which approval shall not be unreasonably withheld, the legal counsel providing the City s defense, and the property owner and/or permittee (as applicable) shall promptly reimburse City for any costs and expenses directly and necessarily incurred by the City in the course of the defense. The permittee expressly acknowledges and agrees that the permittee s indemnification obligations under this condition are a material consideration that motivates the City to approve this section 6409 approval, and that such indemnification obligations will survive the expiration or revocation of this section 6409 approval. L. Performance Bond. Before the Building Division issues any construction permit in connection with this section 6409 approval, the permittee shall post a performance bond from a surety and in a form acceptable to the Director in an amount reasonably necessary to cover the cost to remove the improvements and restore all affected areas based on a written estimate from a qualified contractor with experience in wireless facilities removal. The written estimate must include the cost to remove all equipment and other improvements, which includes without limitation all antennas, radios, batteries, generators, utilities, cabinets, mounts, brackets, hardware, cables, wires, conduits, structures, shelters, towers, poles, footings and foundations, whether above ground or below ground, constructed or installed in connection with the wireless facility, plus the cost to completely restore any areas affected by the removal work to a standard compliant with applicable laws. In establishing or adjusting the bond amount required under this condition, and in accordance with California Government Code 65964(a), the Director shall take into consideration any information provided by the permittee regarding the cost to remove the wireless facility to a standard compliant with applicable laws. M. Recall to the Approval Authority; Approval Revocation. The original approval authority may recall this section 6409 approval for review at any time due to complaints about noncompliance with the applicable laws or any approval conditions attached to this section Page 89 of 146

90 6409 approval. At a duly noticed public hearing and in accordance with all applicable laws, the approval authority may revoke this section 6409 approval or amend these conditions as the approval authority deems necessary or appropriate to correct any such noncompliance. N. Record Retention. The permittee must maintain complete and accurate copies of all permits and other regulatory approvals issued in connection with the wireless facility, which includes without limitation this approval, the approved plans and photo simulations incorporated into this approval, all conditions associated with this approval and any ministerial permits or approvals issued in connection with this approval. In the event that the permittee does not maintain such records as required in this condition, any ambiguities or uncertainties that would be resolved through an inspection of the missing records will be construed against the permittee. The permittee may keep electronic records; provided, however, that hard copies kept in the City s regular files will control over any conflicts between such hard copies and the permittee s electronic copies, and complete originals will control over all other copies in any form. Page 90 of 146

91 Concord Municipal Code Chapter GENERAL TERMS Page 1/10 Exhibit 3 Changes and Deletions to Chapter Remove strike through and add underlined language Chapter GENERAL TERMS Sections: Article I. Use Classifications Purpose and applicability Use classifications. Article II. Definitions Definitions. Article I. Use Classifications Purpose and applicability. Use classifications describe one or more uses of land having similar characteristics but do not list every use or activity that may appropriately be within the classification. If a particular land use is identified as an example of one category but exhibits the characteristics of another, the use shall be categorized under the latter. Page 91 of 146

92 Concord Municipal Code Chapter GENERAL TERMS Page 2/10 The planning division shall make the determination as to whether a specific use is included or not included within a classification based on the characteristics of the use. A specific use shall not be deemed to be within a classification whether or not named within the classifications if its characteristics are substantially incompatible with those of the typical uses named within the classification. [Ord DC ] Use classifications. Animal Services. Boarding, kennel means a commercial establishment that provides overnight boarding for household pets as a paid service and/or breeding services. This classification does not include animal hospitals that provide 24-hour accommodations for animals receiving medical services. (See also Hospital, veterinary clinic under Animal Services. ) Dog day care, dog training means a commercial establishment that provides less than 24-hour keeping, boarding, or training for household pets as a paid service. This classification does not include facilities that provide overnight accommodations. Grooming means a commercial establishment that provides household pet grooming services with no boarding services. Hospital, veterinary clinic means office and indoor medical treatment facilities used by veterinarians, including large and small animal veterinary clinics, and animal hospitals. (See also Boarding, kennel under Animal Services. ) Antennas. (See Wireless telecommunication communications facility. ) Antique, collectible stores means a retail establishment that sells antiques, curios, gifts and souvenirs, and collectible items including sports cards and comic books. This Page 92 of 146

93 Concord Municipal Code Chapter GENERAL TERMS Page 3/10 classification does not include stores selling other types of secondhand items, including clothing, household items, or furniture, including consignment stores or pawn shops. (See Restricted under Retail Sales. ) Media production facility means a facility that provides indoor commercial and public communication uses, as well as outdoor sets, backlots, and other outdoor facilities for motion picture, television, video, sound, computer, and other communications media production. Indoor communication uses would include radio and television broadcasting, receiving stations and studios with facilities entirely within buildings. This classification does not include exterior-mounted antennas and transmission towers (see Utility facility, transmission towers ) or transmission and receiving apparatus, antennas and towers (see Wireless telecommunication communications facility ). Offices. Administrative, information processing means an establishment that provides information processing, computer-dependent, and telecommunications-based activities, typically characterized by high employment densities. Examples include: A. Airline, lodging chain, and rental car company reservation centers (no vehicle storage). B. Computer software and hardware. C. Design and development. D. Consumer credit reporting. E. Data processing services. Page 93 of 146

94 Concord Municipal Code Chapter GENERAL TERMS Page 4/10 F. Health management organization (HMO) offices where no medical services are provided. G. Insurance claim processing. H. Mail order and electronic commerce transaction processing. I. Telecommunications Wireless communications facility design and management. J. Telemarketing. Utility facility, transmission towers means a facility that provides a fixed base structure or facility serving as a junction point for transferring electric utility services from one transmission voltage to another or to local distribution and service voltages, and similar facilities for water supply and natural gas distribution. These uses include any of the following facilities that are not exempted from land use permit requirements by Government Code Section 53091: A. Co-generation facilities. B. Electrical substations and switching stations. C. Natural gas regulating and distribution facilities. D. Public water system wells, treatment plants and storage tanks. E. Telephone switching facilities. F. Wastewater treatment plants, settling ponds and disposal fields. Page 94 of 146

95 Concord Municipal Code Chapter GENERAL TERMS Page 5/10 This classification does not include offices or customer service centers (See Administrative, information processing under Offices. ) Wireless telcommunication facility means a facility that transmits and/or receives electromagnetic signals, including antennas, monopole and/or equipment cabinets or accessory structures, fencing and related equipment, such as cables, conduit and connectors. Wireless communications facility means the collective or combined equipment, network components, and eligible support structures that are necessary or integral in providing personal wireless services, including but not limited to antennas, transmission equipment, towers, and base stations, or as otherwise defined by state or federal law and regulations. Work/live unit means a structure designed or structurally modified to accommodate joint work activities and residential occupancy where the residential use of the space is secondary or accessory to the primary use as a place of work. Residential facilities include sleeping quarters, complete kitchen and sanitary facilities reserved for and regularly used by one or more occupants of the unit. (See Live/work unit. ) [Ord (Exh. A); Ord (Exh. C); Ord (Exh. A); Ord ; Ord. 13-5; Ord. 13-1; Ord. 12-5; Ord DC ]. Article II. Definitions Definitions. Abandoned means a use that had ceased or a structure that had been vacated for a time period as specified in the development code. Abandonment does not include temporary or short-term interruptions to a use or occupancy of a structure during periods of remodeling, maintaining, or otherwise improving or rearranging a facility. Page 95 of 146

96 Concord Municipal Code Chapter GENERAL TERMS Page 6/10 ABC (Alcoholic Beverage Control) means California State Department of Alcoholic Beverage Control. Antenna means any system of poles, panels, rods, reflectors, wires or similar devices used for the transmission or reception of electromagnetic signals, including but not limited to radio waves at any radio frequency operated by any person or organization regulated by the FCC, other than in the Amateur Radio Service. An antenna does not include the support structure the antenna(s) are mounted upon. (See also Wireless Communication Communications Facility Terms. ) Wireless communication facility means a facility that transmits and/or receives electromagnetic signals, including antennas, monopole and/or equipment cabinets or accessory structures, fencing and related equipment, such as cables, conduit and connectors. Wireless Communications Facility Terms. Refer to definitions in Chapter and Chapter Amateur radio means any system of poles, panels, rods, reflectors, wires or similar devices used for the transmission or reception of electromagnetic signals, including but not limited to radio waves at any radio frequency operated by a federally licensed amateur radio operator as part of the Amateur Radio Service and as designated by the Federal Communications Commission (FCC). Boom means a supporting horizontal arm to assist in mounting an antenna to a pole, tower, or structure, including buildings. Building-mounted means any antenna mounted on or affixed in any manner to any portion of a building other than a roof. Page 96 of 146

97 Concord Municipal Code Chapter GENERAL TERMS Page 7/10 Camouflaged or stealth facility means any facility designed to blend into the surrounding environment by means of screening or concealment. The facility and supporting equipment, including the equipment cabinet or shelter, shall not be readily visible beyond the property on which they are located, or, if visible, appear to be part of the existing landscape or environment. Carrier means an entity or company that provides wireless communication services. Cell site means an informal term for a wireless communication facility. Collocation means a facility comprised of a single structure, used to support multiple antennas operated by more than one carrier, including the equipment cabinet, enclosure, fencing and related equipment, such as cables, conduit and connectors. Primary collocations are new facilities that provide future collocation facilities to other providers. Secondary collocations are facilities of subsequent providers on a primary collocation facility. Direct broadcast satellite service means an antenna, usually a small home receiving dish, designed to receive direct broadcast from a satellite. Distributed antenna system means a multiple antenna system interconnected via coaxial cables or optical fibers belonging to a single access point/base station dispersed across a coverage area. Equipment. The term related equipment shall mean the equipment ancillary to the transmission and reception data via radio frequencies. It includes but is not limited to equipment pads, equipment shelters, cabinets, buildings, and access ladders. Equipment cabinet means a cabinet used to house equipment associated with a wireless telecommunications facility. Page 97 of 146

98 Concord Municipal Code Chapter GENERAL TERMS Page 8/10 Equipment enclosure means an enclosed area used to house equipment and facilities which may include a pole or structure, equipment cabinet and generator. GPS means an antenna that receives signals from the global positioning system (GPS) which uses a system of satellites that transmit precise timing signals. Ground-mounted means any antenna attached to a freestanding support structure with its base, single or multiple posts, placed directly on or anchored to or in the ground. Height means the total height of all freestanding support structures and/or antennas, including all antenna(s) and appurtenances, as measured from the ground elevation at the base of the support structure to the highest point of the structure or antenna, whichever is taller. Multi-point distribution services means an antenna designed to receive video programming services via multi-point distribution services, including multipoint, multi-channel distribution services, instructional television fixed services, and local multipoint distribution services. Omni-directional means a vertically oriented antenna typically consisting of a rigid rod that transmits and/or receives a radio signal in all horizontal directions; also referenced to as a whip antenna. Pole mounted means a freestanding support structure, typically tubular in shape, specifically designed and constructed to support one or more antennas or an antenna attached to an existing utility or light pole. Radio frequency means a frequency or rate of oscillation in electrical circuits including antennas with the range of about nine KHz and 275 GHz. Page 98 of 146

99 Concord Municipal Code Chapter GENERAL TERMS Page 9/10 Reception window means the area within the direct line between a satellite antenna and orbiting communications satellites transmitting signals. Repeater means a device that allows the signal of a network to be extended by means of transmission. Roof-mounted means an antenna directly attached or affixed to any portion of the roof of an existing structure, including parapets, bell towers, or other similar rooftop structures typically constructed above a roof. Satellite means any antenna used to receive and/or transmit radio or television signals from orbiting communications satellites. Satellite earth station means an antenna designed to receive and/or transmit radio frequency signals directly to and/or from a satellite. Search ring means a geographic area of a specific radius that a wireless carrier uses to focus their search for a wireless communications facility. Service provider means any authorized provider or wireless telecommunications services. Shared location means more than one wireless communications facility comprised of multiple structures used to support antennas operated by one or more carriers where such structures are located within proximity to each other. Significant gap in service means demonstrated lack of radio frequency coverage that meets the minimum requirements set by the FCC for that provider in its own service coverage area. The burden of proof to demonstrate the significant gap as proved by objective, reliable data is upon the service provider. Page 99 of 146

100 Concord Municipal Code Chapter GENERAL TERMS Page 10/10 Support structure, freestanding means an antenna array and its associated support structure, such as a pole, mast or tower, including structures designed to camouflage antennas such as a treepole, that is used for the purpose of supporting antennas. Any other structure that is not attached to any part of an existing building, fence, roof or wall. Television broadcast service means an antenna designed to receive only television broadcast signal Page 100 of 146

101 Page 101 of 146

102 [Type text] Concord Municipal Code Page 1/1 Chapter NORTH TODOS SANTOS DISTRICT (NTS) Exhibit 4 Changes and Deletions to Table Remove strike through and add underlined language Chapter NORTH TODOS SANTOS DISTRICT (NTS) Table North Todos Santos District Allowed Uses and Permit Requirements ZC = Permitted Use, Zoning Clearance Required AP = Administrative Permit Required MP = Minor Use Permit Required UP = Use Permit Required ADU = Accessory Dwelling Unit Application 6409 = Section 6409 Application = Use Not Allowed Wireless Communications Facility AP, MP or 6409 CDC and Wireless Telecommunication Facility CDC , Wireless Communication Facilities Page 102 of 146

103 Concord Municipal Code Chapter BUSINESS PARK AND INDUSTRIAL DISTRICTS (OBP, IBP, IMX, AND HI) Page 1/2 Exhibit 5 Changes and Deletions to Chapter Remove strike through and add underlined language Chapter BUSINESS PARK AND INDUSTRIAL DISTRICTS (OBP, IBP, IMX, AND HI) Page 103 of 146

104 Concord Municipal Code Chapter BUSINESS PARK AND INDUSTRIAL DISTRICTS (OBP, IBP, IMX, AND HI) Page 2/2 Table Business Park and Industrial Districts (7) Allowed Uses and Permit Requirements ZC = Permitted Use, Zoning Clearance Required AP = Administrative Permit Required MP = Minor Use Permit Required UP = Use Permit Required ADU = Accessory Dwelling Unit Application 6409 = Section 6409 Application = Use Not Allowed Wireless AP, MP AP, MP AP, MP AP, MP CDC and Telecommunication or 6409 or 6409 or 6409 or Communications Facility Page 104 of 146

105 Concord Municipal Code Chapter DOWNTOWN DISTRICTS (DP, DMX, AND WMX) Page 1/4 Exhibit 6 Changes and Deletions to Chapter Remove strike through and add underlined language Chapter DOWNTOWN DISTRICTS (DP, DMX, AND WMX) Sections: Purpose Table Downtown districts Allowed uses and permit requirements Table Downtown districts Development standards Purpose. This chapter lists the uses that may be permitted within the downtown zoning districts, the type of permit or approval required for each use, and basic development standards for the site and building. The purpose of each district is as follows: Table Downtown districts Allowed uses and permit requirements. A. Applicability. Table identifies the uses allowed by the development code in each downtown zoning district and the type of permit required to establish each use. See CDC (B) or Division VII of this title (Permits and Permit Procedures). Page 105 of 146

106 Concord Municipal Code Chapter DOWNTOWN DISTRICTS (DP, DMX, AND WMX) Page 2/4 Additional requirements may apply pursuant to Division IV (Development Standards) and Division V (Standards for Specific Uses) of this title. Table Downtown Districts Allowed Uses and Permit Requirements ZC = Permitted Use, Zoning Clearance AP = Administrative Permit Required MP = Minor Use Permit Required UP = Use Permit Required ADU = Accessory Dwelling Unit Application 6409 = Section 6409 Application = Use Not Allowed Wireless AP, MP or AP, MP or AP, MP or CDC and Communications Facility Wireless Telecommunication Facility CDC , Wireless Page 106 of 146

107 Concord Municipal Code Chapter DOWNTOWN DISTRICTS (DP, DMX, AND WMX) Page 3/4 Table Downtown Districts Allowed Uses and Permit Requirements ZC = Permitted Use, Zoning Clearance AP = Administrative Permit Required MP = Minor Use Permit Required UP = Use Permit Required ADU = Accessory Dwelling Unit Application 6409 = Section 6409 Application = Use Not Allowed Communication Facilities (1) Not allowed on ground floor. (2) Allowed on upper floors subject to use permit approval. (3) Allowed to occupy up to 20 percent gross area of shopping center or multi-tenant building, or 20 percent street frontage of one building. (4) Allowed on ground floor subject to a minor use permit approval. Page 107 of 146

108 Concord Municipal Code Chapter DOWNTOWN DISTRICTS (DP, DMX, AND WMX) Page 4/4 (5) Allowed on upper floors subject to an administrative permit approval. (6) Allowed with residential use only. (7) A facility which exceeds 3,000 square feet. (8) Permitted where a legal detached single-family dwelling exists. [Ord (Exh. I); Ord (Exh. G); Ord , 6; Ord ; Ord. 12-5; Ord DC ]. Page 108 of 146

109 Concord Municipal Code Chapter COMMUNITY LAND DISTRICTS (OS, PR, RLC AND WRC) Page 1/3 Exhibit 7 Changes and Deletions to Chapter Remove strike through and add underlined language Chapter COMMUNITY LAND DISTRICTS (OS, PR, RLC AND WRC) Sections: Purpose Table Community land districts Allowed uses and permit requirements Community land districts Development standards Purpose. This chapter lists the uses that may be permitted within the community land zoning districts and the type of approval required for each use. The purpose of each district is as follows: Table Community land districts Allowed uses and permit requirements. Table identifies the uses allowed by the development code in each community land zoning district and the type of permit required to establish each use. See CDC (B) or Division VII of this title (Permits and Permit Procedures). Page 109 of 146

110 Concord Municipal Code Chapter COMMUNITY LAND DISTRICTS (OS, PR, RLC AND WRC) Page 2/3 Additional requirements may apply pursuant to Division IV (Development Standards) and Division V (Standards for Specific Uses) of this title. Table Community Land Districts Allowed Uses and Permit Requirements ZC = Permitted Use, Zoning Clearance Required AP = Administrative Permit Required MP = Minor Use Permit Required UP = Use Permit Required ADU = Accessory Dwelling Unit Application 6409 = Section 6409 Application = Use Not Allowed Land Use Classifications Permit Required by District OS PR RLC WRC Additional Requirements Wireless AP, MP or AP, MP or AP, MP or AP, MP or CDC Communications and Facility Page 110 of 146

111 Concord Municipal Code Chapter COMMUNITY LAND DISTRICTS (OS, PR, RLC AND WRC) Page 3/3 Table Community Land Districts Allowed Uses and Permit Requirements ZC = Permitted Use, Zoning Clearance Required AP = Administrative Permit Required MP = Minor Use Permit Required UP = Use Permit Required ADU = Accessory Dwelling Unit Application 6409 = Section 6409 Application = Use Not Allowed Land Use Classifications Permit Required by District OS PR RLC WRC Additional Requirements Wireless Telecommunication Facility CDC , Wireless Communication Facilities (1) Permitted where a legal detached single-family dwelling exists. Page 111 of 146

112 Concord Municipal Code Chapter OFFICE AND COMMERCIAL DISTRICTS (CO, CMX, NC, SC, AND RC) Page 1/3 Exhibit 8 Changes and Deletions to Chapter Remove strike through and add underlined language Chapter OFFICE AND COMMERCIAL DISTRICTS (CO, CMX, NC, SC, AND RC) Sections: Purpose Table Office and commercial districts Allowed uses and permit requirements Table Office and commercial districts Development standards Purpose. This chapter lists the uses that may be permitted within the office and commercial zoning districts, the type of permit or approval required for each use, and basic development standards for the site and building. The purpose of each district is as follows: Page 112 of 146

113 Concord Municipal Code Chapter OFFICE AND COMMERCIAL DISTRICTS (CO, CMX, NC, SC, AND RC) Page 2/ Table Office and commercial districts Allowed uses and permit requirements. A. Applicability. Table identifies the uses allowed by the development code in each office and commercial zoning district and the type of permit required to establish each use. See CDC (B) or Division VII of this title (Permits and Permit Procedures). Additional requirements may apply pursuant to Division IV (Development Standards) and Division V (Standards for Specific Uses) of this title. Table Office and Commercial Districts Allowed Uses and Permit Requirements ZC Permitted Use, Zoning Clearance AP Administrative Permit Required MP Minor Use Permit Required UP Use Permit Required ADU Accessory Dwelling Unit Application 6409 = Section 6409 Application Use Not Allowed Page 113 of 146

114 Concord Municipal Code Chapter OFFICE AND COMMERCIAL DISTRICTS (CO, CMX, NC, SC, AND RC) Page 3/3 Land Use Classifications Permit Required by District CO CMX NC SC RC Additional Requirements Theater, Auditorium UP UP UP CDC , Mechanical and electronic games Utility Facility, Transmission Towers ZC ZC ZC Wireless AP, MP AP, MP AP, MP AP, MP AP, MP CDC and Communications or 6409 or 6409 or 6409 or 6409 or 6409 Facility Wireless Telecommunication Facility CDC , Wireless Communication Facilities Page 114 of 146

115 Concord Municipal Code Chapter PUBLIC/QUASI-PUBLIC DISTRICT (PQP) Page 1/2 Exhibit 9 Changes and Deletions to Chapter Remove strike through and add underlined language Chapter PUBLIC/QUASI-PUBLIC DISTRICT (PQP) Sections: Purpose Table Public/quasi-public district Allowed uses and permit requirements Public/quasi-public district Development standards Purpose. This chapter lists the uses that may be permitted within the public/quasi-public zoning district, and determines the type of permit or approval required for each use, and basic development standards for the site and building. The purpose of this district is as follows: Table Public/quasi-public district Allowed uses and permit requirements. Table identifies the uses allowed by the development code in each public/quasi-public zoning district and the type of permit required to establish each use. See CDC (B) or Division VII of this title (Permits and Permit Procedures). Page 115 of 146

116 Concord Municipal Code Chapter PUBLIC/QUASI-PUBLIC DISTRICT (PQP) Page 2/2 Additional requirements may apply pursuant to Division IV (Development Standards) and Division V (Standards for Specific Uses) of this title. Table Public/Quasi-Public District Allowed Uses and Permit Requirements ZC = Permitted Use, Zoning Clearance Required AP = Administrative Permit Required MP = Minor Use Permit Required UP = Use Permit Required ADU = Accessory Dwelling Unit Application 6409 = Section 6409 Application = Use Not Allowed Land Use Classifications Permit Required by District Additional Requirements Public/Quasi-Public and Recreational Uses Wireless Communications Facility AP, MP or 6409 CDC and Wireless Telecommunication Facility CDC , Wireless Communication Facilities (1) Permitted where a legal detached single-family dwelling exists. Page 116 of 146

117 Concord Municipal Code Chapter RESIDENTIAL DISTRICTS (RR, RS, RL, RM AND RH) Page 1/3 Exhibit 10 Changes and Deletions to Chapter Remove strike through and add underlined language Chapter RESIDENTIAL DISTRICTS (RR, RS, RL, RM AND RH) Sections: Purpose Table Residential districts Allowed uses and permit requirements Table RR and RS districts Development standards Table RL, RM, and RH districts Development standards Purpose. This chapter lists the uses that may be permitted within the residential zoning districts, the type of permit or approval required for each use, and basic development standards for the site and building. The purpose of each district is as follows: Page 117 of 146

118 Concord Municipal Code Chapter RESIDENTIAL DISTRICTS (RR, RS, RL, RM AND RH) Page 2/ Table Residential districts Allowed uses and permit requirements. Table identifies the uses allowed by the development code in each residential zoning district and the type of permit required to establish each use. See CDC (B) or Division VII of this title (Permits and Permit Procedures). Additional requirements may apply pursuant to Division IV (Development Standards) and Division V (Standards for Specific Uses) of this title. Table Residential Districts Allowed Uses and Permit Requirements ZC = Permitted Use, Zoning Clearance AP = Administrative Permit Required MP = Minor Use Permit Required UP = Use Permit Required ADU = Accessory Dwelling Unit Application 6409 = Section 6409 Application = Use Not Allowed Page 118 of 146

119 Concord Municipal Code Chapter RESIDENTIAL DISTRICTS (RR, RS, RL, RM AND RH) Page 3/3 Table Residential Districts Allowed Uses and Permit Requirements ZC = Permitted Use, Zoning Clearance AP = Administrative Permit Required MP = Minor Use Permit Required UP = Use Permit Required ADU = Accessory Dwelling Unit Application 6409 = Section 6409 Application = Use Not Allowed Wireless AP, MP AP, MP AP, MP AP, MP AP, MP CDC and Communications or or or or or Facility Wireless Telecommunication Facility CDC (Wireless Communication Facilities) (1) Permitted where a legal detached single-family dwelling exists. Page 119 of 146

120 Concord Municipal Code Chapter DEVELOPMENT AND LAND USE APPROVALS Page 1/3 Exhibit 11 Changes and Deletions to Chapter Remove strike through and add underlined language Chapter DEVELOPMENT AND LAND USE APPROVALS Sections: Purpose General requirements for development and land use Allowable land uses and permit requirements Planned district (PD) zoning district Exemptions from planning permit requirements Prohibited uses Temporary uses Exemptions from planning permit requirements. Page 120 of 146

121 Concord Municipal Code Chapter DEVELOPMENT AND LAND USE APPROVALS Page 2/3 B. Exempt Uses and Improvements. The following improvements are exempt from the planning permit requirements of the development code when in compliance with subsection (A) of this section. 7. Utilities. The erection, construction, alteration, or maintenance of utilities intended to service existing or nearby approved development by a public utility or public agency shall be permitted in any district. This includes water, gas, electric, supply or disposal systems, including wires, mains, drains, sewers, pipes, conduits, cables, fire-alarm boxes, police call boxes, traffic signals, hydrants, etc., but not including new transmission lines and structures. Satellite and wireless telecommunications facilities are not exempt, and are subject to Chapter CDC (Wireless Communications Facilities for New & Substantially Changed Facilities) and Chapter CDC (Wireless Communications Facilities for Eligible Facilities Requests). [Ord DC ] Page 121 of 146

122 Page 122 of 146

123 Concord Municipal Code Chapter GENERAL DEVELOPMENT STANDARDS Page 1/4 Exhibit 12 Changes and Deletions to Chapter Remove strike through and add underlined language Chapter GENERAL DEVELOPMENT STANDARDS Sections: Purpose Applicability Exclusion of rights-of-way Fences and walls Frontage improvements Grading Height limits and exceptions Mechanical equipment screening. Page 123 of 146

124 Concord Municipal Code Chapter GENERAL DEVELOPMENT STANDARDS Page 2/ Moving and relocation of buildings Open space and recreational facilities for residential development Outdoor lighting Outdoor storage Performance standards Setbacks Solid waste and recycling storage Swimming pools, hot tubs, and spas Traffic visibility at intersections and driveways Transitional requirements Purpose. This chapter expands upon the development standards established in Division II of this title (Zoning Districts Uses and Standards) by addressing the details of site planning and project design. These standards are intended to ensure that development is compatible with existing and future development and protects the use and enjoyment of neighboring properties, consistent with general plan policies. [Ord DC ]. Page 124 of 146

125 Concord Municipal Code Chapter GENERAL DEVELOPMENT STANDARDS Page 3/4 FIGURE HEIGHT MEASUREMENT C. Exceptions to Height Limits. No structure or accessory structure shall exceed the height limit established for the applicable district in Division II of this title (Zoning Districts Uses and Standards), except for the following: 1. Chimneys may exceed the height limit by three feet. 2. Cupolas, gables, domes, elevator penthouses, mechanical equipment screening, monuments, spires, or towers less than 10 percent of the roof area may exceed the height limit by 10 feet with approval of a minor exception. 3. Rooftop open space features such as sunshade and windscreen devices and open trellises less than 10 percent of the roof area may exceed the height limit by 12 feet with approval of a minor exception. 4. Skylights or vents may exceed the height limits by three feet. 5. Catwalks, fire escapes, and open railings may exceed the height limits by eight feet. 6. Rooftop solar panels may exceed the height limit by eight feet. 7. Flagpoles may exceed the height limit by 10 feet. 8. Public utility poles, towers, distribution and transmission lines, water tanks, radio towers, and similar structures shall not be subject to the height limitations prescribed for the applicable district. Page 125 of 146

126 Concord Municipal Code Chapter GENERAL DEVELOPMENT STANDARDS Page 4/4 9. Wireless Communications Facilities Telecommunication facilities and microwave equipment including antennas, monopoles, towers, and necessary mechanical appurtenances may be authorized to exceed the height limit if in compliance with Chapter CDC (Wireless Communications Facilities for New or Substantially Changed Facilities) and/or Chapter CDC (Wireless Communications Facilities for Eligible Facilities Requests). 10. Height limits established by a planning permit or specific plan. [Ord DC ]. Page 126 of 146

127 Concord Municipal Code Chapter PARKING, LOADING, AND ACCESS Page 1/4 Exhibit 13 Changes and Deletions to Chapter Remove strike through and add underlined language Chapter PARKING, LOADING, AND ACCESS Sections: Purpose Applicability General Parking requirements Adjustments to parking requirements Parking requirements for the DP and DMX districts Accessible parking requirements Garage and carport design and location requirements Parking design standards. Page 127 of 146

128 Concord Municipal Code Chapter PARKING, LOADING, AND ACCESS Page 2/ Additional standards for driveway access easements, curb cuts, parking lots, and structures Driveways and site access Bicycle parking Motorcycle parking Structured parking Off-street loading area requirements Parking and storage of recreational vehicles Purpose. The purpose of this chapter is to: A. Establish vehicle parking and loading standards consistent with general plan policies; B. Ensure that adequate off-street parking and loading facilities and access are provided for new development and uses and for alterations and expansion of existing uses; C. Limit the area of land and impervious paving dedicated to parking by reducing the number of required spaces near major transit stations for uses with lower parking demands and for shared parking facilities serving uses with different peak demand times; Page 128 of 146

129 Concord Municipal Code Chapter PARKING, LOADING, AND ACCESS Page 3/4 D. Encourage the use of bicycles by providing safe and convenient places to park and store bicycles; E. Ensure that parking and loading facilities, and access to both, are designed with adequate landscaping and screening in order to improve and soften their appearance, provide shade, and buffer surrounding land uses from potential impacts; and F. Provide safe and orderly access, circulation, loading, unloading, and parking within parking areas, and minimize conflicts between pedestrian and vehicular circulation. [Ord DC ] Applicability. Each use and structure, including a change or expansion of the use or structure, shall provide parking and loading areas in compliance with this chapter. A use shall not be commenced or a structure occupied, until the improvements required by this chapter are completed and approved by the planning division. [Ord DC ]. Table Parking Requirements by Land Use Public, Quasi-Public, and Recreational Uses Airports To be determined by use permit Antennas (See Wireless 1 space for maintenance and service Page 129 of 146

130 Concord Municipal Code Chapter PARKING, LOADING, AND ACCESS Page 4/4 TelecCommunications Facility) Conference, Convention Facility To be determined by use permit Cultural Institution 1 space/400 sf gross floor area Government Offices 1 space/250 sf gross floor area Heliport To be determined by use permit Library 1 space/300 sf gross floor area Page 130 of 146

131 Concord Municipal Code Chapter 5.30 CABLE COMMUNICATIONS SYSTEMS Page 1/2 Exhibit 14 Changes and Deletions to Chapter 5.30 Remove strike through and add underlined language Chapter 5.30 CABLE COMMUNICATIONS SYSTEMS Sections: Article I. General Provisions Purpose Definitions. Article VI. Rate Regulation Authority Notice of rate increases State video franchise and PEG fees Audit authority City response to state video franchise applications. Page 131 of 146

132 Concord Municipal Code Chapter 5.30 CABLE COMMUNICATIONS SYSTEMS Page 2/2 Cross references: Cable television facilities in new development, et seq.; businesses and business regulations, Title 5; streets, sidewalks, and other public places, Title 12; utilities, Title 13; zoning, Title 18; antennas and wireless communications facilities Wireless Communications Facilities for New & Substantially Changed Facilities, Chapter CDC, and Wireless Communications Facilities for Eligible Facilities Requests, Chapter CDC. Page 132 of 146

133 Concord Municipal Code Page 1/2 Title 18 Development Code Exhibit 15 Changes and Deletions to Title 18 Development Code Remove strike through and add underlined language Title 18 DEVELOPMENT CODE Chapters: Division I. Development Code Applicability Title, Purpose, Applicability, and Interpretation Zoning Districts and Zoning Map General Terms Division II. Zoning Districts Uses and Standards Development and Land Use Approvals Residential Districts (RR, RS, RL, RM, and RH) North Todos Santos District (NTS) Office and Commercial Districts (CO, CMX, NC, SC, and RC) Downtown Districts (DP, DMX, and WMX) Business Park and Industrial Districts (OBP, IBP, IMX, and HI) Public/Quasi-Public District (PQP) Community Land Districts (OS, PR, RLC, and WRC) Page 133 of 146

134 18.65 Study District (S) Division III. Overlay Zoning Districts Airport Overlay District (A) Transit Station Overlay District (TS) Division IV. Development Standards General Development Standards Standards for Small Lot and Medium Density Development Parking, Loading, and Access Landscaping Water Efficient Landscaping Stormwater Management Signs Affordable Housing Division V. Standards for Specific Uses Standards for Specific Uses Wireless Communications Facilities for New & Substantially Changed Facilities Wireless Communications Facilities for Eligible Facilities Requests Adult-Oriented Businesses Division VI. Resource Management Hillside Protection Page 134 of 146

135 Concord Municipal Code Page 1/2 Title 5 Business Licenses and Regulations Exhibit 16 Changes and Deletions to Title 5 Business Licenses and Regulations Add underlined language Title 5 BUSINESS LICENSES AND REGULATIONS 1 Chapters: 5.05 Business Licenses 5.10 Ambulance Services 5.15 Billiard Rooms 5.20 Bingo Games 5.25 Block Parties 5.30 Cable Communications Systems 5.35 Card Rooms 5.40 Carnivals, Circuses, Fairs, and Amusement Places 5.45 Entertainment Permits 5.50 Escort Bureaus and Introductory Services 5.55 Film Permits 5.60 Fortunetelling 5.65 Going Out of Business and Altered Goods Sales Page 135 of 146

136 5.70 Hotels, Motels, and Roominghouses 5.75 Massage Establishments 5.80 Marijuana 5.85 Secondhand Dealers 5.90 Solicitors and Peddlers 5.95 Taxicabs Tobacco Retailers License Program 1 Cross references: Amusements and entertainments, Title 5; food, et seq.; oil and gas wells, Ch ; sidewalk cafes, et seq.; building line setbacks, et seq.; moving of buildings, et seq.; taxation, Ch. 3.15; hotel transient occupancy tax, et seq.; telecommunications, Ch. 5.30; utilities, Title 13; vehicles for hire, Chs and 5.95; NC Neighborhood Commercial District, Chapter CDC; SC Service Commercial District, Chapter CDC; Industrial Districts, Chapter CDC; Downtown Districts, Chapter CDC; adult-oriented businesses, Chapter CDC; antennas and wireless communications facilities, Chapter CDC and Chapter CDC. Page 136 of 146

137 Attachment Page 1 BEFORE THE PLANNING COMMISSION OF THE CITY OF CONCORD, COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA A RESOLUTION RECOMMENDING CITY COUNCIL ADOPTION OF AN ORDINANCE REPEALING AND REPLACING DEVELOPMENT CODE CHAPTER , ADDING CHAPTER , AND AMENDING OTHER SECTIONS OF THE DEVELOPMENT CODE AND THE MUNICIPAL CODE IN CONNECTION WITH WIRELESS COMMUNICATIONS FACILITIES Resolution No PC / WHEREAS, Government Code Section et seq. provides for the amendment of any and all adopted City of Concord ( City ) zoning laws, ordinances, rules and regulations; and and WHEREAS, there is a proliferation of new wireless communications facilities within the City; WHEREAS, the City has received numerous applications and inquiries regarding the development of new or modification to existing wireless communications facilities within the City and, given the strong desire of the wireless industry to continue expanding and enhancing their coverage, the City anticipates that it will receive additional applications and inquiries in the near future. WHEREAS, the City considers amending its Development Code and Municipal Code with the intent of establishing reasonable, uniform, and comprehensive standards and procedures for wireless communications facilities deployment, construction, installation, collocation, modification, operation, relocation and removal within the City s territorial boundaries, consistent with and to the extent permitted under federal and California state law. The standards and procedures should be applied to, protect and promote public health, safety and welfare, and also balance the benefits that flow from robust, advanced wireless communications services with the City s local values, which include without limitation the aesthetic character of the City of Concord, its neighborhoods and community, and WHEREAS, on January 9, 2015, the Federal Communications Commission approved regulations, which interpreted certain provisions of Section 6409(a) of the Middle Tax Relief and Job Page 137 of 146

138 Creation Act of 2012, Section Section 6409 requires local jurisdictions to approve certain eligible collocations and modifications to existing wireless communications facilities and the FCC regulations have further defined Section 6409 s key terms to implement Congress s broader mandate; and WHEREAS, on October 9, 2015, the State of California approved Assembly Bill No. 57, Government Code Section , which automatically deems an application for a new wireless site or substantial modification to an existing wireless site not subject to 6409 when 1) the city or county fails to approve or disapprove the application within the applicable shot clock period, 2) the applicant has provided all public notices required for the application and 3) the applicant provides written notice to the city or county that it considers the application deemed approved, and WHEREAS, by repealing and replacing the existing Section and adding Chapter of the Development Code regulating Wireless Communication Facilities, as indicated in Exhibits 1, 1b, and 2 attached to the proposed Ordinance (Attachment 1) and incorporated herein, the City seeks to bring the regulations into alignment with Section 6409(a) of the Middle Tax Relief and Job Creation Act of 2012 and Assembly Bill No. 57; and WHEREAS, in addition to Chapter and Chapter , Federal and State requirements also require additional amendments to the Development Code and Municipal Code, as set forth in Exhibits 3 through 16 of the proposed Ordinance (Attachment 1), attached and incorporated herein; and WHEREAS, the amendments as indicated in Exhibits 1 through 16 of the proposed Ordinance (Attachment 1) are collectively referred to as Amendment ; and WHEREAS, the City has complied with the requirements of the Local Planning Law (Government Code section et seq.), and the City s applicable ordinances and resolutions with respect to approval of amendments to Title 18 of the Concord Municipal Code ( Development Code ) and Title 5 of the Concord Municipal Code; and WHEREAS, the adoption of a development review process for wireless facilities is not a project pursuant to CEQA Guidelines Section and Public Resources Code Section Page 2 Page 138 of 146

139 because the ordinance is not the sort of activity that may cause a direct or reasonably foreseeable indirect physical change to the environment. Moreover, any site-specific future projects approved pursuant to the new development review process would necessitate further environmental review. In addition, the proposed Amendment is exempt pursuant to Guideline Section 15061(b)(3) because there is no possibility that the amendments may have a significant effect on the environment, and no further environmental review is required; and. WHEREAS, on April 10, 2017, the City Council Committee on Infrastructure & Franchise considered the proposed framework for revising the Wireless Communications Facility regulations under Chapter of the Concord Development Code and recommended that the proposed new ordinance be reviewed by the Planning Commission and City Council; and WHEREAS, the Planning Commission, after giving all public notices required by State Law and the Concord Municipal Code, held a duly noticed public hearing on July 19, 2017, on the proposed Amendment; and WHEREAS, at such public hearing on July 19, 2017, the Planning Commission considered all oral and written information, testimony, and comments received during the public review process, including information received at the public hearing, the oral report from City staff, the written staff report, dated July 19, 2017, materials, exhibits presented, the Development Code, applicable Federal regulations, and all other information that constitutes the record of proceedings on which the Planning Commission has based its decision are maintained at the offices of the City of Concord Planning Division (collectively, Amendment Information ); and WHEREAS, on July 19, 2017, the Planning Commission, after consideration of all reports, documents, testimony and Amendment Information, declared their intent to recommend approval and adoption of the Amendment. NOW, THEREFORE, BE IT RESOLVED AS FOLLOWS: Recitals 1. The Planning Commission of the City of Concord does hereby make the following findings: 28 Page 3 Page 139 of 146

140 a. The recitals above are true and correct and are incorporated herein by reference. b. The Amendment is consistent with the General Plan Policy PF-1.4.1, which requires new development to coordinate with all utility providers to assure quality services to all residents and businesses throughout the community, and General Plan Policy E-2.1.1, which requires establishing land use priorities that foster entrepreneurship, growth, and innovative business development in the 2030 General Plan and is necessary in order to improve the accuracy of the Development Code and its standards and further achieve internal consistency and consistency with the rest of the Concord Municipal Code, Federal Law and State Law. c. The Amendment would not be detrimental to the public interest, health, safety, convenience, or welfare of the City, as the proposed amendment is in compliance with the FCC s RF emission requirements. General 1. The Planning Commission has reviewed, considered, and evaluated all of the Amendment Information prior to acting upon Amendment. 2. The documents and other materials that constitute the record of proceedings upon which the Planning Commission has based its recommendation are located in and may be obtained from the City of Concord Planning Division, 1950 Parkside Drive, Concord, CA CEQA 3. The adoption of a development review process for wireless facilities as set forth in the Amendment is not a project pursuant to CEQA Guidelines Section and Public Resources Code Section because the ordinance is not the sort of activity that may cause a direct or reasonably foreseeable indirect physical change to the environment. Moreover, any site-specific future projects approved pursuant to the new development review process would necessitate further environmental review. In addition, the proposed Amendment is exempt pursuant to Guideline Section 15061(b)(3) because there is no possibility that the Amendment may have a significant effect on the environment; and Amendment 28 Page 4 Page 140 of 146

141 The Planning Commission does hereby recommend that the City Council adopt an Ordinance, attached hereto as Attachment 1, to approve the Amendment. This resolution shall become effective immediately upon its passage and adoption. PASSED AND ADOPTED this 19 st day of July, 2017 by the following vote: AYES: Weinmann, Aliano, Mercurio NOES: ABSTAIN: ABSENT: None None Laub, Barbour Attachments: 1. Ordinance No Laura Simpson, AICP Planning Manager 28 Page 5 Page 141 of 146

142 City of Concord Proposed Wireless Ordinances TABLE OF INDUSTRY COMMENTS Comment No. Section Reference Commenter Industry Comment Staff Recommendation (A) Verizon Section 6409 approvals should be processed as a zoning clearance rather than a modification to the underlying permit. Accept (as modified): The City will process Section 6409 projects administratively, similar to a zoning clearance-type approval, as a modification to the underlying use permit. However, to the extent that a facility does not have an underlying permit, the proposed draft will be amended as necessary to address the issue (B) (B)(2) AT&T T-Mobile Verizon (B)(10) AT&T Verizon Photos and photo sims should not be required if the proposed modification will occur within an existing concealment element or will not be noticeable from the public right-of-way. Accept (as modified): To accommodate applicants that believe an application requirement would be unnecessary for a specific project, the City will be permitted to make exceptions to the application requirements on a case-bycase basis for unnecessary or duplicative materials if the applicant attends a pre-submittal meeting. Accept (as modified): The City will not require The City cannot require applicants to submit a environmental compliance review for Section 6409 facilities, title report or environmental compliance for and the proposed draft will be amended accordingly. The Section 6409 facilities. The City should not City will require title reports for propery owner and site and require title reports for non-section 6409 easement boundary verification purposes. Nothing in projects because site plans can be used to federal law specifically prohibits the City from requiring a provide evidence related to property ownership, title report, and the title report requirement is necessary utility and acess easements. before the City can issue an entitlement for a new project or FCC regulations do not require applicants to demonstrate permit compliance for projects subject to Section modification. No Change: FCC regulations expressly include permit compliance as a factor to consider whether the project is subject to Section The City cannot require applicants to post notice at the project site for an eligible facilities No Change: FCC regulations are silent on this issue. Local request because it is not related to a authority to require notice is preserved. determination of whether the facility qualifies for mandatory approval under Section Page 1 of 5 Page 142 of 146

143 (A) AT&T Verizon (B) Verizon T-Mobile AT&T Mobilitie Verizon (B)(2) AT&T (B)(10) (B)(9) AT&T T-Mobile Section 6409 approvals must have a term limit of at least 10 years. The City should not invalidate Section 6409 permits if the federal law is invalidated by the courts. FCC proceedings may alter the applicable federal rules for wireless infrastructure and the new local regulations are inconsistent with the spirit of the proceedings, may become moot and/or violate federal law. The City should incentivize right-of-way facilities with a less-discretionary review process. Provide an exception to the written authorization application requirement for attachments to city-owned infrastructure pursuant to a master license agreement. Noise study should not be required for projects that will not add any new noise-generating equipment. No Change: An approval for a modification to an existing facility cannot outlast the underlying permit that authorizes the facility's existence. No Change: In the event that Section 6409 is invalidated, the City may preserve its land use authority to review projects that federal law would not have required the City to approve. No Change: The City is currently facing a substantial number of new applications and anticipates many more before any potential new federal rules would be adopted. In addition, it is not clear the extent to which the FCC would preempt local authority; however, local standards that may conflict with new federal regulations down the line would be severable. Accept (as modified): To incentivize certain right-of-way facilities, the City provides an administrative review process for facilities proposed on City-owned poles. No Change: The City, in its capacity as a pole owner, will timely provide written authorization for poles that it agrees to license. Accept (as modified): Rather than require a full noise study for all projects, the City will permit applicants to submit a certification that the proposed equipment would not generate any noise. To accommodate applicants that believe an application requirement would be unnecessary for a specific project, the City will be permitted to make exceptions to the application requirements on a case-bycase basis for unnecessary or duplicative materials if the applicant attends a pre-submittal meeting (B)(10)- (11) AT&T 90-day collocation application should not require a project purpose statement and alternatives analysis. Accept (as modified): To accommodate applicants that believe an application requirement would be unnecessary for a specific project, the City will be permitted to make exceptions to the application requirements on a case-bycase basis for unnecessary or duplicative materials if the applicant attends a pre-submittal meeting. Page 2 of 5 Page 143 of 146

144 (B)(11) (B)(12) T-Mobile Verizon T-Mobile Verizon (B)(12) Mobilitie (B)(13) T-Mobile Verizon The City cannot require a project purpose statement with a description of technical objectives and RF propagation maps for facilities in the public right-of-way. The City should not require alternatives analyses for facilities that do not pose any land use impacts, right-of-way facilities on city property pursuant to a master license, or for facilities in preferred-locations. Disclosing the number of affected users for a proposed facility is proprietary information related to the carrier; however, Mobilitie may offer a rough estimate based on the carrier's market penetration and the geographic area. The City should allow staff to waive the materials samples application requirement for facilities in the public right-of-way. Accept (as modified): The City can require these disclosures under state and federal law. To accomodate applicants that believe an application requirement would be unnecessary for a specific project, the City will be permitted to make exceptions to the application requirements on a case-by-case basis for unnecessary or duplicative materials if the applicant attends a pre-submittal meeting. Accept (as modified): Land use impacts from wireless proposals are heavily context dependent, and alternatives analyses help provide such context. However, to accommodate applicants that believe an application requirement would be unnecessary for a specific project, the City will be permitted to make exceptions to the application requirements on a case-by-case basis for unnecessary or duplicative materials if the applicant attends a pre-submittal meeting. Accept: Given the practical realities that carriers and infrastructure providers face in calculating the precise number of affected users, the project purpose statement requires an estimate of the potentially affected users in the targeted service area. Accept (as modified): To accommodate applicants that believe an application requirement would be unnecessary for a specific project, the City will be permitted to make exceptions to the application requirements on a case-bycase basis for unnecessary or duplicative materials if the applicant attends a pre-submittal meeting (B)(8) AT&T (B)(9) Verizon Photo simulations are unnecessary for projects that will have no visual impact e.g. modifications to existing concealed facilities. The City should not require RF compliance reports to be certified under penalty of perjury. Accept (as modified): Photo simulations are useful to make an initial determination that a project would indeed have no visual impact. To accommodate applicants that believe an application requirement would be unnecessary for a specific project, the City will be permitted to make exceptions to the application requirements on a case-bycase basis for unnecessary or duplicative materials if the applicant attends a pre-submittal meeting. No Change: This is a legal declaration that attests to the accuracy of the RF compliance certification and promotes compliance with the law. Page 3 of 5 Page 144 of 146

145 (C) Verizon (C)-(F) AT&T (C)-(F) (C) AT&T T-Mobile Verizon T-Mobile (A) AT&T (J) (L) AT&T (N) Verizon The City cannot require pre-application meetings or submittal appointments that are not made available on a daily basis. Neighborhood meetings cannot toll the applicable shot clock. Shot clocks begin running when the application is submitted and AT&T may submit an application without an intake appointment. The City cannot automatically deem withdrawn applications after 30 or 90 days. Performance bond, annual reporting obligations, strict compliance with approved plans and permit term limts may be an impermissible prohibition on telecommunications service under federal law. Permits to collocate or modify an existing site must extend at least 10 years under state law. It is unnecessary for the property owner to agree to indemnification and this requirement interferes with economic relations between AT&T and property owners. The City may not have the right to approve legal counsel for indemnification purposes.the City should not be indemnified for any Section 6409 approval because the applicant is complying with federal law. The City should process permit renewals administratively for facilities that have operated without complaint during the prior term. No Change: FCC regulations are silent on this issue. The City may impose appointment requirements to effectively manage application intake, and is consistent with the way the City manages other development projects. Accept: The City agrees that the shot clocks run once an application is submitted, except when tolled for incompleteness or by mutual agreement. Accept (as modified): Consistent with the manner in which the City treats other development projects, the deemedwithdrawn period will be extended to 180 days; however, applicants must submit their applications at a scheduled appointment so that the City can manage application intake in light of FCC shot clocks and deemed-granted remedies. No Change: Rather than prohibit telecommunications service, these standard conditions ensure that applicants comply with generally applicable public health and safety laws, as required by the FCC. Accept (as modified): Permits to collocate or modify an existing facility not subject to Section 6409 will be issued for at least 10 year terms. No Change: Indemnification and the right to reasonably approve indemnifying counsel serves a critical risk management function to protect the City against claims (property damage, personal injury, etc.) that could potentially arise under circumstances related to a permittee's facilities. No Change: To protect community aesthetics to the greatest extent feasible, the City would prefer to evaluate permit renewals based on the development standards in effect at the time of the renewal. Page 4 of 5 Page 145 of 146

146 (A)-(B) T-Mobile Verizon (A)(11) Verizon (A)(2) Verizon (A)(7) Verizon (D) Verizon (D) Mobilitie (D)(1) AT&T (A)(3) Verizon AT&T The City should not prefer City-owned property for wireless uses and should prefer residential parcels with established non-residential use, such as a church. Undergrounding utility runs should not be required for short extensions of existing aerial utilities. The Cty should not limit the height of facilities to the zone height limit and should at least allow for a 10-foot exception or a height sufficient to meet coverage objectives. The City should encourage backup batteries for right-of-way facilities and should not ban backup generators within 250 feet of residences. Small cell facilities in the public rights-of-way should not be required to underground equipment and the City should acknowledge that exceptions would be appropriate in order to comply with CPUC safety rules. Most wireless equipment cannot be undergrounded for practical reasons or due to the requirements of the electric utility provider. For facilities proposed to be located in the public rights-of-way, the California Court of Appeals definition for what "incommodes" the public's use is unclear and the standards should be tied to CPUC 7901 and The City should permit temporary wireless facilities for a period longer than 90 days. Amortization schedule could violate the minimum 10-year permit term required by state law. The provision should state "In no event shall such amortization limit the term of a permit to less than required by state law." No Change: The City's list of preferences does not preclude facilities in residential zones on parcels with nonresidential uses. Rather, such proposals will be subject to additional scrutiny to ensure compatibility with the designated land uses. No Change: For facilities on private property, the City has made a policy judgment to mitigate aerial clutter by limiting new overhead lines from the right-of-way to wireless facilities. In addition, if undergrounding is not feasible, it is not required. Accept (as modified): The City provides applicants a flexible process for height exceptions on a case-by-case basis under standards designed to ensure the proposed facility is the least intrusive means. No Change: Backup power sources installed in the public right-of-way may cause additional obstructions that implicate a public health and safety issue. Accept: Equipment must be undergrounded to the extent feasible, and equipment would not be required to be undergrounded if necessary to comply with CPUC safety rules. Accept: The City does not require undergrounding for any equipment that must be installed above ground for technical reasons. No Change: The California Court of Appeals defines incommode consistent with CPUC 7901 and Accept: If the applicant shows good cause, the Planning Manager has discretion to approve a temporary use permit for up to one year. Accept (as modified): The amortization provision expressly prohibits a permit term that would violate existing state law that requires 10-year minimum permit term limits for certain facilities. Page 5 of 5 Page 146 of 146

147 Wireless Ordinance Update Overview of Existing Law Concord City Council September 5, 2017 Tripp May Telecom Law Firm, PC 1

148 Legal Framework Overview FEDERAL LAW Telecom Act 47 U.S.C. 332(c)(7) 47 U.S.C. 253 Spectrum Act 47 U.S.C. 1455(a) FCC Regulations Shot Clock Declaratory Ruling Infrastructure Order (47 C.F.R et seq.) STATE LAW Cal. Constitution Article XI, 7 Public Utilities Code PUC 2902 PUC 7901 PUC Government Code Gov t Code Gov t Code

149 47 U.S.C. 332(c)(7) Generally Preserves Zoning, with Some Exceptions Substantive Limitations cannot explicitly or effectively prohibit wireless services or wireless facilities; must allow provider to close a significant gap in service through the least intrusive means cannot unreasonably discriminate between functionally equivalent services or providers cannot regulate based on environmental effects from RF emissions to the extent such emissions comply with FCC regulations Procedural Limitations must act on wireless application with a reasonable time given scope and project type FCC Shot Clock Rules must issue a written decision based on substantial evidence in the written record 3

150 Public Utilities Code Section 2902 municipalities cannot surrender police powers to the CPUC to regulate relationship between the public and utilities Section 7901 grants telephone corporations a state-wide franchise to access and use the public rights-of-way to the extent necessary to provide telephone services providers cannot incommode the publics use preserves aesthetic control over ROW facilities Section preserves reasonable time, place and manner regulations over how telephone corporations access and use the ROW regulations must be applied equally to all providers 4

151 47 U.S.C. 1455(a) (aka Section 6409) State and local governments may not deny, and shall approve any collocation or modification request for an existing wireless tower or base station so long as it does not cause a substantial change in its physical dimensions. FCC defines the terms; cannot adopt different standards preempts zone height, aesthetic and legal nonconforming regs; but not general health and safety deemed-granted permits if City fails to act in time 5

152 Substantial Change Criteria Towers Base Stations & ROW Height 20 feet or ten percent 10 feet or 10 percent Width 20 feet or tower width 6 feet Equipment Cabinets Excavation 4 maximum within the leased or owned area same, plus other complicated rules same, and some further restrictions Concealment Compliance with Prior Permit Conditions cannot defeat the concealment elements changes must comply with all prior conditions except limits on height, width, cabinets or excavation 6

153

154 Gov t Code (aka AB57) California state law deems approved any application for a new or substantially changed wireless site when: 1. the city fails to approve or deny the application within the applicable FCC shot clock timeframe; and 2. the applicant has provided all public notices required for the application; and 3. the applicant has provided notice to the city that the application is deemed approved; days have passed since the notice date. 8

155 SB 649 (Hueso) Summary precludes discretion over small cells on new poles, existing poles and other structures within the public rights-of-way and on private property requires ministerial approvals (i.e. no CEQA) requires cities to lease space on poles or similar facilities and private property deceptively large definition for a small cell Timing approved by Senate, amended in Assembly likely to pass this year effective on Jan. 1,

156 10

157 Proposed Ordinance Overview Ordinance No separate rules for 6409 applications more flexibility on non-6409 applications Incentive-Based Preferences significantly streamlined process for desirable designs and locations More Flexibility for Changes in Law / Technology application requirements and forms completely delegated to staff design standards implemented by resolution rather than ordinance Public Participation regular notice and community meeting procedures public hearings for disfavored designs and locations Limited Exceptions for Compliance w/ Law like a variance, but tailored to specific standards applicable to wireless facilities ensures no effective prohibitions, but sites remain the least intrusive 11

158 context matters: some facilities may be a right thing in the wrong location these are well-designed sites in context with the environment 12

159 buildings and existing structures typically offer better concealment opportunities and reduce new construction 13

160 Completely stealth facilities: Either no visible change at all or so well hidden the observer cannot even see the effort to hide the equipment 14

161 Cell sites concealed as public art 15

162 unconcealed antenna weatherhead for utilities routed thru external conduits equipment cage RRUS, DC suppressor, fiber distribution optional backup battery power meter distribution panel and disconnect switch 16

163 17

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167 21

168 fiberglass decorative radome concealment low power antennas small RRUs 22

169 Purpose-Built Street Furniture 23