Staff Report. Andrea Ouse, Director of Community and Economic Development Laura Simpson, Planning Manager

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1 7.b Staff Report Date: February 13, 2018 To: From: Reviewed by: Prepared by: City Council Valerie J. Barone, City Manager Andrea Ouse, Director of Community and Economic Development Laura Simpson, Planning Manager G. Ryan Lenhardt, Senior Planner (925) Subject: Considering the review of Zoning Administrator Order #17-11 which approved a new wireless communications facility within the public right-of-way, adjacent to 2039 Sierra Road, and adoption of Resolution No approving a Minor Use Permit for the wireless facility. CEQA: Categorically exempt under CEQA Guidelines Section Existing Facilities Report in Brief On November 29, 2017, the Zoning Administrator approved an application for a Minor Use Permit from the CBR Group on behalf of ExteNet Systems to construct, install, maintain and operate a small cell wireless facility at the above referenced location. The applicable staff reports from the October 23 and November 29, 2017 Zoning Administrator meetings are available for download on the Zoning Administrator Agendas webpage. Pursuant to Concord Municipal Code Section , the City Manager called up the application to the City Council for review on December 11, 2017 due to significant interest and concern within the community. Recommended Action Adopt Resolution No (Attachment 2), approving the Minor Use Permit for the new wireless facility within the public right-of-way, adjacent to 2039 Sierra Road. Page 1 of 78

2 City Council Agenda Report Agenda Item No. 7.b February 13, 2018 Application Background On December 5, 2016, the City received the application for 2039 Sierra Road along with nine other applications for new wireless facilities on utility poles located within the public rights-of-way. The applications were deemed complete on July 21 and July 27, 2017, following multiple rounds of completeness reviews. Because the new Wireless Ordinance went into effect on October 25, 2017, the applications were reviewed under the previous Wireless Ordinance based on the date the applications were deemed complete. Therefore, all references to specific code sections shall refer to the City s previous wireless ordinance. (Ordinance No. 12-4). On August 16, 2017, the City s independent consultant issued memorandums (the August Memos ) (Attachment 6) to the City for each proposed site that evaluated their compliance with the applicable provisions in the Development Code and the Federal Communications Commission ( FCC ) Guidelines for exposure to radio frequency (RF) emissions. The August Memos generally recommended design modifications to the proposed equipment for closer compliance with Development Code requirements for concealment. In addition, the August Memos found that each proposed site would not create RF exposures in any accessible spaces that exceeded the maximum permissible limits for the general population and the sites would be in compliance with the FCC Guidelines so long as ExteNet adhered to standard signage and access restriction protocols. However, the August Memos recommended additional analysis of design alternatives for 2039 Sierra Road (PL MP), including reorienting and shrouding ancillary equipment under the antenna and placing cables, wires, and similar connectors in conduits mounted as flush to the pole as possible to minimize potentially adverse safety and aesthetic impacts. On September 1, 2017, ExteNet provided responses to the alternatives identified in the August Memorandums. ExteNet stated that it could reorient the ancillary equipment and flush mount the cables, wires, and other similar connectors. However, ExteNet objected to three of the City s proposed conditions of approval on technical and/or aesthetic grounds stating they would cause the profile of the proposed project to increase. On September 8, 2017, the City notified ExteNet that it accepted some, but not all, of its explanations, and requested additional documentation to rule out some alternatives identified in the August Memos as technically infeasible for 2039 Sierra Road. On September 20, 2017, ExteNet provided responses to the alternatives identified in the September 8, 2017 letter. ExteNet agreed to shroud the proposed ancillary equipment and submitted revised plans illustrating the screening material. Page 2 of 78

3 City Council Agenda Report Agenda Item No. 7.b February 13, 2018 On October 12, 2017, the City and ExteNet entered into a tolling agreement to extend the FCC-mandated timeframe for decisions on wireless applications ( shot clock ) for 2039 Sierra Road to December 10, This tolling agreement was subsequently extended to February 8, On October 23, 2017, the application for 2039 Sierra Road went before the Zoning Administrator. At the time, staff concluded that the required findings could be made to approve the proposed facility. The Zoning Administrator continued the matter to a Special Meeting on November 29, 2017 due to questions surrounding the ownership of the pole and the applicant s authority to file the Minor Use Permit application. On November 29, 2017, the applicant submitted documentation at the meeting verifying that PG&E owned the pole and authorized ExteNet to file the application for a Minor Use Permit. On November 29, 2017, the Zoning Administrator approved the Minor Use Permit for the ExteNet application related to 2039 Sierra Road (PL16490) based on the submitted information. As discussed within the November 29, 2017 staff report, the required findings were made for the proposed facility, and the project was found to be consistent with the City s General Plan and Development Code. Accordingly, the Zoning Administrator adopted Zoning Order No (Attachment 5), approving a Minor Use Permit to construct, install, maintain and operate a small cell wireless facility at 2039 Sierra Road, based on the attached findings. The Zoning Administrator also required additional conditions regarding design, which were consistent with the other approved wireless applications in the right-of-way. Due to significant community interest and concern regarding the Zoning Administrator s approval, the City Manager called up the application on December 11, 2017 to the City Council for review. As provided in the Municipal Code, the procedure and available actions for a City Manager s call for review are identical to the process that apply to an appeal to the City Council. In other words, the review by Council is considered to be a de novo review, which means the Council can approve, deny, or conditionally approve the project as though they were the original body to hear the permit. To assist in the review by Council, planning staff asked the City s independent consultant to provide a memorandum with a summary of the applicable laws and analysis. Telecom Law Firm Wireless Planning Memorandum, dated January 12, 2018 is attached to this report as Attachment 6 for review. Analysis Pursuant to Section , in addition to the findings required for the approval of a Minor Use Permit, the review authority shall find that 1) all applicable standards in Chapter have been met; 2) the facility will be substantially screened from view of the surrounding properties and public views or otherwise substantially camouflaged; and special design considerations have been incorporated into or applied to the facility Page 3 of 78

4 City Council Agenda Report Agenda Item No. 7.b February 13, 2018 to ensure that the facility will not have an adverse visual impact to the surrounding properties or public views. Minor Use Permit Findings The proposed use is allowed within the applicable Zoning District and complies with all other applicable provisions of the Development Code and the Municipal Code. Category 2 wireless facilities are allowed within the applicable zoning district, subject to a minor use permit. The proposed facility qualifies as a Category 2 wireless facility because it would be attached to an existing wood light pole and would alter the structure s existing profile. In addition, the general requirements of the Development Code pertaining to Category 2 wireless facilities have been met because the project, as conditioned, would not require a ground-mounted meter pedestal that would have added a new and visible obstruction in the public right-of-way. The proposed use is also consistent with the General Plan and any applicable Specific Plans. The proposed facility supports the policy to preserve and enhance positive neighborhood character as required under General Plan Goal LU-1 because it would utilize an existing wood light pole that would not cause a net increase in right-of-way obstructions and would not exceed the current height limit. ExteNet has taken steps to minimize or eliminate any undue or unnecessary adverse aesthetic impacts, such as installing the electric meter in the pole-mounted equipment shroud rather than groundmounted meter pedestal. The proposed facility would also be consistent with General Plan Policy LU-9.1.5, which requires utilities to be placed underground or screened from public view, because all of the proposed equipment would be pole-mounted and screened from public view using shrouds, conduit and a radome (a structural, weatherproof enclosure that protects an antenna). Although the equipment will not be placed underground, the equipment is similar to existing above-ground utility equipment. The design, location, size and operating characteristics of the proposed activity and facility are compatible with the existing and future land uses in the vicinity for the following reasons: it would utilize an existing wood light pole and does not require a new obstruction in the right-of-way (as conditioned), it would not exceed the zone height limits, nor, emit any noise or light in violation of any generally applicable health and safety regulations, it has been determined by the City s independent consultant to be in planned compliance with all applicable FCC guidelines for exposure to radio frequency emissions, and Page 4 of 78

5 City Council Agenda Report Agenda Item No. 7.b February 13, 2018 it would utilize several screening and camouflaging techniques to ensure the facility would not have an adverse aesthetic or safety impact to the surrounding properties or the general public. The proposed facility is also compatible with any future land uses in the vicinity because, as conditioned, the proposed facility would be required to maintain its concealment through any future modifications. Moreover, if any future land uses would affect the proposed facility s compliance with all applicable FCC guidelines for exposure to radio frequency emissions, such as an expansion of any nearby structure, the proposed facility would be required by federal law to stop or alter its operations to maintain compliance with FCC regulations. Additionally, the presence of the facility would not prevent the property owners from making any lawful use of their property. Accordingly, the design, location, size, and operating characteristics of the proposed activity are compatible with the existing and future land uses in the vicinity. The site is physically suitable for the proposed use because ExteNet proposes to install an unattended wireless facility on an existing wood light pole that is directly accessible from the adjacent street. In addition, as conditioned, the facility would not add a new physical obstruction in the public right-of-way. Accordingly, the site is physically suitable for the type, density, and intensity of the proposed use, including access, utilities, and the absence of physical constraints. Granting the permit would not be detrimental to the public health, safety or welfare because the facility would be installed, maintained and operated in compliance with all applicable public health and safety regulations. This includes, without limitation, all building codes, electrical codes, pole attachment regulations and regulations for exposure to radio frequency emissions. The proposed facility, as conditioned, would utilize a pole-mounted design that would not require a new obstruction in the public right-of-way that could affect pedestrian access, including access by persons protected under the federal Americans with Disabilities Act, or bicyclist or driver safety. The facility includes appropriate signage, with the site operator s name, site identification number and toll-free phone number, to alert persons who would attempt to climb the pole, including both authorized and unauthorized personnel, that the pole include equipment that emits radio frequency emissions. The facility has been determined by the City s independent consultant to be in planned compliance with all applicable FCC guidelines for exposure to radio frequency emissions. The facility also includes a disconnect switch to power-down the radios as needed for access by maintenance personnel. In addition, the proposed facility would not be materially detrimental or injurious to property or improvements in the vicinity because the equipment would be installed on replacement utility infrastructure and would be completely shrouded and finished to match the underlying pole and conceal the equipment from public view. Moreover, ExteNet s equipment would facilitate the Page 5 of 78

6 City Council Agenda Report Agenda Item No. 7.b February 13, 2018 provision of advanced mobile broadband services, which includes emergency 911 services, which have become critically important to connect people to the internet for work, school and/or leisure purposes. Accordingly, granting the permit would not be detrimental to the public health, safety, or welfare of the persons residing or working in the subject neighborhood or materially detrimental or injurious to property or improvements in the vicinity and Zoning District where the property is located. Wireless Communications Facility Findings In addition to the Minor Use Permit findings above, staff believes that the specific findings required for wireless communications facilities (Section ) can be met, as more fully discussed below. Section Location Although the proposed facility would be located within the discouraged 300-foot residential buffer zone (approximately 42 feet from the nearest residential dwelling), it does not appear possible for ExteNet to install its equipment on any other existing or new structure more than 300 feet from a residence and still reasonably meet its technical service objectives, based on the following: 1) ExteNet is a telephone corporation as defined under the California Public Utilities Code with rights under California law to install facilities in the public rights-ofway. 2) The proposed antenna and radios operate at low power, transmit signals at a limited range, and must be located in relative proximity to the intended service area to effectively function. 3) The intended service area for the proposed facility is located in the residential neighborhood along Sierra Road that has existing above-ground utility poles. 4) Each such existing utility pole in reasonable proximity to the intended service area is within approximately the same distance from a residence as the proposed facility and there would not be a meaningfully better alternative outside the 300-foot residential buffer zone or even further from a residence than the proposed location. Without a meaningfully better alternative, ExteNet proposes to mitigate the potential visual impact to nearby residences by incorporating concealment shrouds that would be painted to match the utility pole or existing utility attachments in a manner that would not increase the general visibility of the pole. Moreover, the proposed equipment shroud would be mounted directly under the proposed antennas and mounting bracket to provide a streamlined design and further reduce overall visibility from multiple viewing angles. Accordingly, given that (1) there are no meaningfully better alternatives more than 300 feet from a residence, (2) the City merely discourages facilities in such areas, and (3) ExteNet would install equipment that generally looks like the type of equipment Page 6 of 78

7 City Council Agenda Report Agenda Item No. 7.b February 13, 2018 commonly installed on utility poles in the vicinity, would not increase the overall height of the structure and would take affirmative steps to mitigate any increase in the general visibility of the structure, the proposed facility would comply with Section Section General Requirements. A. Siting Safety and Aesthetic Impacts. ExteNet proposes to site the facility in a location that, as conditioned, would avoid adverse safety or aesthetic impacts by installing a pole-mounted electric meter rather than a ground-mounted electric meter pedestal. None of the adverse safety or aesthetic impacts associated with the ground-mounted meter would occur because: (1) the public would have restricted access to the proposed equipment, (2) the facility would comply with FCC s radio frequency guidelines, and (3) the facility would be installed on existing utility infrastructure in the public right-of-way to comply with the City s standards. The facility would avoid adverse aesthetic impacts because the equipment has been oriented away from prominent views and would be painted and installed to mimic pole attachments that are commonly found on utility poles. In addition, attaching to existing utility infrastructure avoids the need to install new obstructions and structures in the public right-of-way that would cause a more noticeable aesthetic impact. Accordingly, the proposed facility would avoid adverse safety and aesthetic impacts in accordance with Section A. B. Noise. The City s noise standards would also be met because the pole-mounted ancillary equipment would be installed within a passively-cooled shroud that would allow enough airflow to keep the ancillary equipment ventilated and obviate the need for noise-producing cooling mechanisms. Additionally, ExteNet does not propose to install or operate any noise-producing backup power generators that would require an additional safety setback from nearby structures. C. Lighting. The proposed wireless facility would not interfere with any existing street lighting pattern because the facility would be mounted on an existing utility pole below the height of the existing light fixture. Taken together, the proposed equipment shares similar style, color and mounting configurations that match the appearance of existing utility poles and reduce the proposed facility s overall visibility. Accordingly, the proposed facility would not interfere with street lighting patterns and incorporate concealment elements that blend and integrate the facility and ancillary equipment with the existing utility pole in accordance with section C. D. Facility Maintenance. The facility also includes a disconnect switch to power-down the radios as needed for access by maintenance personnel. In addition, the proposed facility would not be materially detrimental or injurious to property or improvements in the vicinity because the equipment would be installed on replacement Page 7 of 78

8 City Council Agenda Report Agenda Item No. 7.b February 13, 2018 utility infrastructure and would be completely shrouded and finished to match the underlying pole and conceal the equipment from public view. E. Security. The proposed equipment shroud would be locked to prevent unauthorized access to the radio units, fiber splice box and electric meter, and the proposed antenna and radome would be mounted out of reach from the general public at approximately 19 feet above ground level, would be as secure and inaccessible to the public as the existing utility pole attachments, and FCC-compliant radio frequency notification signage would be installed to provide the notice required by federal law to prevent unauthorized access. ExteNet also proposes to install removable climbing pegs to prevent unauthorized climbing on the pole. F. Height. In terms of height, the proposed equipment and existing pole would not exceed the 30ʹ residential zone height limit because the existing pole is 30ʹ above ground level and the highest point of the proposed equipment would reach 25ʹ above ground level. In addition, the California Public Utilities Commission General Order 95 imposes certain clearance restrictions that prevent the pole-mounted antenna from being mounted less than 18ʹ above ground level. Accordingly, the proposed facility would be installed at a height in compliance with section F. G. Ancillary Equipment. As set forth in Section G, the proposed ancillary equipment, as conditioned, would be screened to the fullest extent possible on the utility pole because each piece of equipment would be camouflaged and painted with a shroud and finishes compatible with the existing pole and/or the pole attachments. Additionally, these camouflaging techniques would make each piece of equipment relatively indistinguishable from the pole attachments commonly found on utility poles in the vicinity, which include cross extension arms, transformers, transformer mounting brackets and communications lines. The camouflaging elements would be made of material compatible with the utility pole and/or pole attachments to ensure the ancillary equipment would be concealed as much as possible. H. Landscaping. The proposed facility would utilize several effective screening techniques suitable for facilities in the public rights-of-way and visually similar to the existing utility poles on Sierra Road. Although the proposed facility would not utilize landscaping, very few (if any) of the utility poles in the public right-of-way along Oak Grove Road are screened with landscaping or structures, and additional landscape features in this particular location would tend to create more obstructions given the polemounted equipment. I. Signs. The proposed facility does not include any advertising signs or identifying logos. The facility does include appropriate signage, with the site operator s name, site identification number and toll-free phone number, to alert persons who would Page 8 of 78

9 City Council Agenda Report Agenda Item No. 7.b February 13, 2018 attempt to climb the pole, including both authorized and unauthorized personnel, that the pole includes equipment that emits radio frequency emissions. J. Special Design Considerations. The proposed facility, as conditioned, would also incorporate the following special design considerations to ensure the facility would not have an adverse impact to the surrounding properties or public views: (1) a small smart meter, rather than a bulky electric meter, would be placed within the equipment shroud to conceal it from public view; (2) ancillary equipment would be mounted directly under the proposed antenna and radome to create a more uniform, streamlined form factor; (3) ancillary equipment would be mounted to the pole rather than on the ground, which would avoid a new obstruction in the public right-of-way; (4) ancillary equipment would be placed within a passively-cooled equipment shroud that would allow enough airflow to keep the electronic equipment ventilated without needing noise-producing cooling mechanisms; (5) the facility will not have any visible lights that might create an annoyance for surrounding properties that have views of the proposed equipment; (6) all cables, wires, jumpers and other similar connectors would be placed in flush-mounted conduit that are commonly placed on electric service and communications utility poles; and (7) subject to planning division approval, the external surface of all proposed equipment would be painted, finished and textured to match the pole or equipment to blend with the built and/or natural environment. These special design considerations would help ensure, to the greatest extent feasible, that the facility would not have an adverse visual impact to the surrounding properties or public views because they would make the proposed equipment more-or-less indistinguishable from the pole attachments on the proposed pole and other utility poles along Sierra Road. Summary Based on the modifications to the originally proposed project, additional design conditions, and the required findings made for the proposed facility, the project was found to be consistent with the City s General Plan and Development Code. As such, staff recommends that the City Council uphold the Zoning Administrator s decision to approve the Minor Use Permit to construct, install, maintain and operate a small cell wireless facility within the public right-of-way at 2039 Sierra Road. Alternatives The following are alternatives the Council could take regarding this call for review: 1. Direct staff to return with a resolution with findings denying the Minor Use Permit for 2039 Sierra Road to construct, install, maintain and operate the small cell wireless facility in the public right-of-way. 2. Continue the public hearing to allow the project proponent and/or staff to respond to issues raised by the Council. Page 9 of 78

10 City Council Agenda Report Agenda Item No. 7.b February 13, 2018 Financial Impact The proposed project would have a negligible fiscal impact on the City. Environmental Determination The California Environmental Quality Act ( CEQA ) requires local public agencies to evaluate whether any discretionary project may have a significant effect on the environment. The proposed installation qualifies as a project because it will require a discretionary Minor Use Permit. However, the proposed project would qualify for a categorical exemption under CEQA Guidelines as a minor alteration to existing utility facilities. Additionally, pursuant to Section , there are no exceptions to the Section Existing Facilities exemption because there is no reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances. It should also be noted that pursuant to case law (Robinson v. City and County of San Francisco (2012) 208 Cal. App. 4th 950), the cumulative impact exception does not apply to defeat a categorical exemption to place wireless communications equipment on existing utility poles in scattered locations throughout the city. Accordingly, whether the City Council approves or disapproves any particular project, no further environmental review is required. Public Contact Notification was mailed to all owners and occupants of property within three-hundred (300) feet of the subject parcels, and has been published in the East Bay Times, as required by the Concord Municipal Code. This item was also posted at the Civic Center and at the subject site at least 10 days prior to the public hearing. Attachments 1. Location map 2. City Council Resolution No Notice of appeal received December 11, 2017 with Agenda Item No. 7.a 4. Memorandum from Telecom Law Firm dated January 12, 2018 with Agenda Item No. 7.a 5. Zoning Administrator Order No ZA with Conditions of Approval 6. August Memorandums prepared by Telecom Law Firm 7. Chapter Wireless Communication Facilities with Agenda Item No. 7.a 8. Public comments with Agenda Item No. 7.a Page 10 of 78

11 Attachment 1 EXTENET TELECOMMUNICATIONS FACILITY MINOR USE PERMIT (PL MP) Right-of-way adjacent to 2039 Sierra Road APN Page 11 of 78

12 Attachment BEFORE THE CITY COUNCIL OF THE CITY OF CONCORD, COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA A Resolution Upholding the Zoning Administrator s Decision to Approve ExteNet Wireless Communications Facility Minor Use Permit (PL16490 MP) Resolution No / WHEREAS, on December 5, 2016, Mr. Steven Piper, on behalf of ExteNet Systems, submitted an application for a Minor Use Permit and to install a new wireless facility at approximately 22ʹ above ground level ( AGL ) on an existing utility pole located within the public right-of-way at 2039 Sierra Road; APN The facility would include two antennas and diplexers concealed within a radome mounted on a shrouded side-arm bracket at approximately 18ʹ 10ʺ AGL. The facility would also include two remote radio units ( RRUs ), a fiber splice box and a PG&E smart meter within a pole-mounted equipment shroud. In addition, the facility would include an emergency disconnect switch mounted on the pole underneath the equipment shroud. The radome, side-arm mount and other pole-mounted equipment would be finished to match the color of the pole or existing utility attachments; and WHEREAS, on July 27, 2017, the application was deemed complete for processing; and WHEREAS, the City recently amended its Wireless Communications Facilities ordinance (Ordinance No ), which was effective on October 25, 2017; and WHEREAS, as the subject application was deemed complete for processing before the new ordinance went into effect, the application is subject to the City s previous municipal code (Chapter Ordinance 12-4), and all references to the City s Development Code shall refer to this Chapter; and WHEREAS, pursuant to the provisions of the California Environmental Quality Act ( CEQA ) of 1970, as amended, the project qualifies for a categorical exemption under Section of the CEQA Guidelines as a minor alteration to existing utility facilities and therefore the project will not have a significant effect on the environment; and WHEREAS, on September 29, 2017, the project was publically advertised as required by 28 Res. No Page 12 of 78

13 Attachment State law and the Concord Municipal Code Section 18 (referred to herein as the Development Code) to notify the public of the project; and WHEREAS, on October 13, 2017, the Zoning Administrator gave all public notices required by State law and the Development Code, to hold a public hearing on October 23, 2017 on the subject application; and WHEREAS, on October 23, 2017, the Zoning Administrator held a duly noticed public hearing on the subject application, received public comments and continued the public hearing on the subject application to November 29, 2017 to allow ExteNet additional time to investigate potential design alternatives; and WHEREAS, on November 29, 2017, the Zoning Administrator held a duly noticed public hearing on the subject application and received public comments; and WHEREAS, on November 29, 2017 the Zoning Administrator, after consideration of all pertinent plans, documents and testimony, adopted Zoning Order No ZA approving the ExteNet Wireless Communications Facility Minor Use Permit (PL16490 MP); and WHEREAS, on December 11, 2017, pursuant to Concord Municipal Code Section , the City Manager on behalf of the City Council requested review of the Zoning Administrator s approval of the ExteNet Wireless Communications Facility Minor Use Permit; and WHEREAS, on February 13, 2018, after giving all public notices required by State law and the Concord Municipal Code, the City Council held a duly noticed public hearing regarding the call for review; and WHEREAS, the City Council considered testimony and information received at the public hearing and the oral and written reports from City staff dated February 13, 2018, as well as other documents contained in the record of proceedings relating to the proposed project, which are maintained in the offices of the City of Concord Planning Division ( Project Information ); and, WHEREAS, on February 13, 2018, after consideration of all pertinent plans, documents, reports, and oral and written testimony received at the public hearing, the City Council declared their Res. No Page 13 of 78

14 Attachment intent to uphold the Zoning Administrator s decision to approve the subject permit, subject to the Conditions of Approval, attached as Exhibit A and made a part hereof. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CONCORD DOES RESOLVE AS FOLLOWS: Section 1. Recitals The recitals above are true and correct and are incorporated herein by reference. The recitals constitute findings in this matter and together with the Project Information, serve as an adequate and appropriate evidentiary basis for the findings and actions set forth in this Resolution. Section 2. CEQA Pursuant to the CEQA, as amended, the project qualifies for a categorical exemption under Section of the CEQA Guidelines, as a minor alteration to existing utility facilities and therefore the project will not have a significant effect on the environment. Additionally, pursuant to Section , there are no exceptions to the Section Existing Facilities exemption because the project will not have a significant effect on the environment due to a cummulative impact of other projects or unusual circumstances. Section 3. Minor Use Permit 1. The proposed wireless facility is allowed within the applicable zoning district and complies with all other appicable provisions of the Development Code and the Municipal Code. 2. The proposed wireless facility is consistent with the general plan and any applicable specific plan. 3. The design, location, size, and operating characteristics of the proposed wireless facility are compatible with the existing and future land uses in the vicinity. 4. The site is physically suitable for the type, density, and intensity of the proposed use, including access, utilities, and the absence of physical restraints. 5. Granting the minor use permit would not be detrimental to the public health, safety, or welfare of the persons residing or working in the subject neighborhood or materially detrimental or Res. No Page 14 of 78

15 Attachment injurious to property or improvements in the vicinity and zoning district where the property is located. The facility would be installed, maintained and operated in compliance with all applicable public health and safety regulations, which includes without limitation all building codes, electrical codes, pole attachment regulations and regulations for exposure to radio frequency emissions. The proposed facility, as conditioned, would utilize a pole-mounted design that would not require a new obstruction in the public right-of-way that could affect pedestrian access, including access by persons protected under the federal Americans with Disabilities Act, or bicyclist or driver safety. Section 4. Wireless Communication Facilities 1. In addition to the Minor Use Permit findings included above, all applicable standards in Chapter (Ordinance 12-4) have been met, and the facility will be substantially screened from the view of surrounding properties and public views or otherwise substantially camouflaged. The following special design considerations, as set forth in the Conditions of Approval, attached hereto as Exhibit A, 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: a) Siting. The proposed wireless facility will be substantially screened from view of the surrounding properties and public views or otherwise substantially camouflaged. i) A small smart meter, rather than a bulky electric meter, will be placed within the equipment shroud to conceal it from public view and the equipment has been oriented away from prominent views and would be painted and installed to mimic pole attachments that are commonly found on utility poles; b) Noise. Ancillary equipment will be placed within a passively-cooled equipment shroud, which will reduce noise of the cooling mechanisms and no noise-producing backup power generators are proposed; c) Lighting. The facility will not have any visible lights that might create an annoyance for surrounding properties with view of the equipment; d) Facility Maintenance. The facility also includes a disconnect switch to power-down Res. No Page 15 of 78

16 Attachment the radios as needed for access by maintenance personnel. In addition, the proposed facility would not be materially detrimental or injurious to property or improvements in the vicinity because the equipment would be installed on replacement utility infrastructure and would be completely shrouded and finished to match the underlying pole and conceal the equipment from public view; e) Security. The proposed equipment shroud would be locked to prevent unauthorized access to the radio units, fiber splice box and electric meter, and the proposed antenna and radome would be mounted out of reach from the general public at approximately 19 feet above ground level, would be as secure and inaccessible to the public as the existing utility pole attachments, and FCCcompliant radio frequency notification signage would be installed to provide the notice required by federal law to prevent unauthorized access; f) Height. The proposed equipment and existing pole would not exceed the 30ʹ residential zone height limit because the existing pole is 30ʹ above ground level and the highest point of the proposed equipment would reach 25ʹ6ʺ above ground level; g) Ancillary Equipment. Ancillary equipment will be mounted directly under the proposed antenna and radome to create a uniform, streamlined form factor. All cables, wires, jumpers and other similar connectors will be placed in flush-mounted conduits that are visually similar to other existing equipment on utility poles. The external surface of the equipment will be painted, finished or textured to match the pole or equipment to blend with the built and/or natural environment; h) Landscaping. The proposed facility would utilize several effective screening techniques suitable for facilities in the public rights-of-way and visually similar to the existing utility poles on Sierra Road. Although the proposed facility would not utilize landscaping, very few (if any) of the utility poles in the public right-of-way along Sierra Road are screened with landscaping or structures, and additional landscape features in this particular location would tend to create more obstructions given the pole-mounted equipment; i) Signs. The proposed facility does not include any advertising signs or identifying logos. The facility does include appropriate signage, with the site operator s name, site identification Res. No Page 16 of 78

17 Attachment number and toll-free phone number, to alert persons who would attempt to climb the pole, including both authorized and unauthorized personnel, that the pole includes equipment that emits radio frequency emissions. j) Special Design Considerations. The proposed facility, as conditioned, would incorporate special design considerations to ensure the facility would not have an adverse impact to the surrounding properties or public views by shrouding electric meters to conceal them from public view, mounting ancillary equipment directly under the proposed antenna and radome to create a more uniform, streamlined form factor, and placing all cables, wires, jumpers and other similar connectors in flush-mounted conduit that are commonly placed on electric service and communications utility poles. 2. Based on the foregoing, the City Council hereby determines that all of the required findings for approval of the project have been made subject to the Conditions of Approval in Exhibit A; as a result, the application is hereby approved. Section 5. This resolution shall become effective immediately upon its passage and adoption. // // // // // // // // // // // // Res. No Page 17 of 78

18 Attachment PASSED AND ADOPTED by the City Council of the City of Concord on February 13, 2018, by the following vote: AYES: Councilmembers - NOES: Councilmembers - ABSTAIN: Councilmembers - ABSENT: Councilmembers - I HEREBY CERTIFY that the foregoing Resolution No was duly and regularly adopted at a regular meeting of the City Council of the City of Concord on February 13, Joelle Fockler, MMC City Clerk APPROVED AS TO FORM: Susanne Meyer Brown City Attorney Exhibit: A Conditions of Approval B Project plans date stamp received September 20, 2017 C Written statement date stamp received December 5, 2016 D Radio Frequency report date stamp received December 5, 2016 E Photo simulations date stamp received September 20, Res. No Page 18 of 78

19 Attachment EXHIBIT A CONDITIONS OF APPROVAL EXTENET WIRELESS COMMUNICATIONS FACILITY MINOR USE PERMIT (PL PERMIT DESCRIPTION MP) Right-of-way adjacent to 2039 Sierra Road APN These conditions apply to and constitute approval of Minor Use Permit (PL MP) to construct a new wireless facility on an existing street light standard located in the public right-ofway near 2039 Sierra Road. This Minor Use Permit authorizes the installation of a side-arm mounted antenna and ancillary equipment mounted to the pole as described in greater detail in the approved project plans and photo simulations. 2. The following Exhibits, date-stamped by the City of Concord, on September 20, 2017, are approved and shall be incorporated as Conditions of Approval. Date Prepared Prepared by Plan Sheet 9/13/17 The CBR Group Title Sheet T-1 5/31/17 Quiet River Land Right-of-Way Survey Page 1 of 1 Services 9/13/17 The CBR Group Overall Site Plan A-1 9/13/17 The CBR Group Existing and Proposed Equipment and A-2 Antenna Plans 9/13/17 The CBR Group Existing and Proposed West Elevations A-3 9/13/17 The CBR Group Existing and Proposed East Elevations A-3.1 9/13/17 The CBR Group Existing and Proposed South Elevations A-4 9/13/17 The CBR Group Existing and Proposed North Elevations A-4.1 9/13/17 The CBR Group Equipment and Construction Details A-5 9/13/17 The CBR Group Equipment and Construction Details A-6 9/13/17 The CBR Group Proposed West Section View A-7 9/13/17 The CBR Group Proposed East Section View A-8 9/13/17 The CBR Group Proposed South Section View A-9 9/13/17 The CBR Group Proposed North Section View A-10 9/13/17 The CBR Group Electrical Group Diagrams, Single Line E-1 Diagram, Details 9/13/17 The CBR Group Traffic Control Plan TCP 9/16/17 ExteNet Systems Photo Simulation View #1 28 Res. No Page 19 of 78

20 Attachment /16/17 ExteNet Systems Photo Simulation View #2 9/16/17 ExteNet Systems Photo Simulation View #3 GENERAL CONDITIONS 3. The applicant shall comply with all conditions of approval under Resolution No to the maximum extent under applicable laws. 4. The Conditions are the responsibility of the applicant and all contractors. Compliance shall occur as specified in the Conditions or at one of the following project milestones: a) With the submittal of Grading, Improvement, Landscape, or Building Plans. b) Prior to issuance of Encroachment, Grading, or Building Permits, whichever comes first. c) Prior to Construction. d) On-going during Construction. e) Prior to occupancy approval. If timing for compliance is not specified, it shall be determined by the Division(s) listed after the Condition. (PLNG, BLDG, ENGR) 5. Where a plan or further information is required, it is subject to review and approval by the applicable City Division(s) as noted at the end of each Condition. The Division listed first shall be the primary contact for implementation of that Condition. (PLNG, BLDG, ENGR) 6. The project at all times relevant to this permit shall comply with all applicable Federal and State laws and Concord Municipal Code (CMC) requirements. 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 applicable laws. In the event that the City fails to timely notice, prompt or enforce compliance with any applicable provision in the CMC, 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 CMC, any permit, any permit condition or any applicable law or regulation. (PLNG, BLDG, ENGR) 7. Minor modifications that are found to be in substantial conformance with the approved plans and existing architecture of the building, such as building materials, building colors, and landscape materials, may be approved administratively. Major modifications shall be approved by the applicable decision making body. (PLNG, ENGR) 8. The permittee shall not submit Building Plans to the Building Division for plan check, and shall not commence construction or installation of the wireless facility at the pole location, until the permittee submits to the Planning Division, in a form satisfactory to the City Attorney, a fully executed and duly notarized letter from the owner of the subject pole that expressly authorizes the permittee to install the equipment described in Attachment B on the subject pole for the proposed use. (PLNG) Res. No Page 20 of 78

21 Attachment These Conditions of Approval shall be listed on a plan sheet that is included in the construction plan set (Grading, Utility, Landscape, and Building Plans). (PLNG, ENGR, BLDG) 10. Two annotated copies of the Conditions of Approval specifying how each applicable condition has been satisfied, shall be submitted as follows: (a) At the time Building Plans are submitted for plan check. (PLNG, ENGR) (b) Prior to occupancy approval. (PLNG, ENGR) ARCHITECTURAL/DESIGN 11. All the ancillary equipment shall be mounted directly under the antenna in the nine-o-clock position. (PLNG) 12. All the ancillary equipment shall be pole-mounted as close to the pole as possible. (PLNG) 13. The ancillary equipment shall be placed in a single shroud, cabinet or other enclosure. The single shroud, cabinet or other enclosure for the ancillary equipment must be air-cooled and may not use fans or other mechanical cooling techniques that may cause ambient noise. Subject to approval by the Zoning Administrator, the ancillary equipment shroud, cabinet or other enclosure shall be no larger than feasibly necessary to conceal the ancillary equipment. The enclosures for all small cell wireless facilities shall utilize a consistent design to minimize aesthetic impacts. (PLNG) 14. All the cables, wires, jumpers and other similar connectors shall be placed in conduits mounted as flush to the pole as possible. (PLNG) 15. All the external surfaces on all pole-mounted equipment, which includes without limitation all conduits, cables, shrouds, cabinets and mounting hardware, shall be painted, wrapped or otherwise colored to match the existing pole. All external finishes shall be flat, non-reflective materials and colors approved by the Zoning Administrator. (PLNG) 16. ExteNet shall request that PG&E install a smart meter rather than a traditional electric meter. The smart meter shall be placed within the equipment or antenna shroud where it will be invisible to the public. (PLNG) 17. ExteNet shall submit a power and fiber utility plan to the Planning Division that shows the electrical service and fiber cable runs, points of origin and points of attachment to the subject pole. The Planning Division shall approve (not to be unreasonably withheld) the plan before ExteNet may submit applications for encroachment permits. To the extent feasible, no utility cables shall traverse across Sierra Road. FCC RADIO FREQUENCY COMPLIANCE 18. The permittee shall install and at all times maintain in good condition a Network Operations Center Information and RF Notice sign on the utility pole approximately three (3) feet below the antenna centerline. Signs required under this condition shall be installed so that a person can clearly see the sign as he or she approaches within three (3) feet of the antenna. (PLNG, ENGR) 28 Res. No Page 21 of 78

22 Attachment The permittee shall ensure that all signage complies with FCC OET Bulletin 65, ANSI C95.2 or any statute that supersedes for color, symbol, and content conventions. All such signage shall at all times provide a working local or toll-free telephone number to its network operations center, and such telephone number shall be able to reach a live person who can exert transmitter power-down control over this site as required. (PLNG, ENGR) 20. Prior to final building inspection, the applicant shall submit a final RF Report that demonstrates compliance with the FCC regulations and the Radio Frequency Compliance Report prepared by Rajat Mathur, P.E. dated December 5, (PLNG) 21. Applicant shall submit a Radio Frequency Compliance Report and associated Planning review fees, no later than every 5 years to demonstrate continued compliance with FCC regulations to the satisfaction of the Planning Division. (PLNG) LIGHTING 22. No exterior lighting shall be allowed on the pole, except for lighting installed by or with the consent of the City. (PLNG) NOISE 23. Noise producing site preparation and construction activities shall be limited to the days and hours as set forth below: Monday through Friday...7:30 a.m. to 6:00 p.m. Construction on Saturdays may be allowed only upon prior approval by the Building, Engineering, and Planning Divisions. Written requests for Saturday work shall be submitted to the City the Wednesday prior to the weekend by close of the business day. No changes to these construction hours shall be allowed without the prior written consent of the City. A contact person shall be available during all construction activities in the evening and on weekends to respond to complaints and take actions necessary to reduce noise. (BLDG, ENGR, PLNG) 24. If complaints are received and verified by the City regarding noise from equipment associated with the telecommunication facility, the project applicant shall mitigate and/or make any necessary modifications so noise levels comply with acceptable standards identified in the City s General Plan. Any upgrades or enhancement of equipment shall be subject to review and approval by the Planning Division. (PLNG) 25. All on-going repair and routine maintenance associated with the wireless facility shall be limited to the hours of 8:00 a.m. to 5:00 p.m. seven days a week excluding times when an urgent maintenance visit is required for emergency repairs or necessary service to allow for continued communication services for all 911 emergency agencies and the public at large. (PLNG, BLDG, ENGR) Res. No Page 22 of 78

23 Attachment CONSTRUCTION ACTIVITIES 26. Construction equipment shall not be serviced at the site at any time. During construction, no deliveries shall be made to the site and no delivery vehicles (including gasoline tanker trucks) shall enter the site between 6:00 p.m. and 7:30 a.m. on weekdays, and between 5:00 p.m. and 8:00 a.m. on weekends and federal holidays. Delivery vehicles shall have their engines turned off during unloading. (BLDG, ENGR, PLNG) 27. Employ the quietest construction equipment available, to muffle noise from construction equipment and keep all mufflers in good working order in accordance with State law. (BLDG, ENGR, PLNG) 28. Implement Best Management Practices for stormwater pollution control, including the following measures during construction: (a) (b) (c) (d) (e) (f) (g) Gather all construction debris on a regular basis and place them in a dumpster, recycling bin, or other container that is emptied or removed on a weekly basis. When appropriate, use tarps on the ground to collect fallen debris or splatters that could contribute to storm water pollution. All construction debris shall be responsibly disposed or recycled. Remove all dirt, gravel, rubbish, refuse, and green waste from the street pavement, and storm drains adjoining the project site. During wet weather, avoid driving vehicles off paved areas. Broom sweep the public street pavement adjoining the project site on a daily basis. Caked-on mud or dirt shall be scraped from these areas before sweeping. Install filter materials (e.g., sandbags and filter fabric) at the storm drain inlet nearest the downstream side of the site in order to prevent any debris or dirt from flowing into the City storm drain system. Filter materials shall be maintained and/or replaced as necessary to ensure effectiveness and to prevent street flooding. Dispose of filter particles in an approved trash receptacle. Create a contained and covered area on the site for the storage of bags, cement, paints, flammable, oils, fertilizers, pesticides, or any other materials used on the site that have the potential for being discharged to the storm drain system by being windblown or in the event of a material spill. Never clean items such as machinery, tools, and brushes or rinse containers in a street, gutter, or storm drain. Ensure that concrete, gunite, plaster, or similar supply trucks do not discharge wash water into street gutters or drains. (ENGR, BLDG) 29. No equipment shall be started or staging area be established on the streets or the site before or after the specified hours of construction. (ENGR, BLDG) 30. The contractor shall promptly respond to and resolve any identified nuisance issues which may arise during construction. (ENGR, BLDG) Res. No Page 23 of 78

24 Attachment Ensure that no debris or construction scrap material is placed on any adjoining lot, open space area, or street, and that any such material stored on an adjoining site shall be completely removed and the site cleaned, prior to occupancy approval. (ENGR, BLDG) 32. At no time shall campers, trailers, motor homes, or any other vehicle be used as living or sleeping quarters on the construction site unless authorized for site security. (ENGR, BLDG) 33. There shall be no parking of construction equipment or construction worker s vehicles on residential streets at any time; all vehicles shall be maintained on-site. (ENGR, BLDG) 34. Measures shall be taken to replace and repair any landscaping or irrigation fixtures which may become damaged during construction. (PLNG, BLDG) 35. Portable toilets used during construction shall be kept as far as possible from adjacent properties and shall be cleaned and emptied on a regular basis as necessary to prevent odor. (ENGR, BLDG) AGREEMENTS, FEES, BONDS 36. Provide a $1, cash deposit to the Planning Division to cover Condition Compliance costs at the time of submittal of plans and documents to Engineering Services or the Building Division for plan check. Planning staff s time will be charged to this deposit for work performed to implement the Conditions of Approval, from the time of project approval to occupancy approval. The deposit will be placed in a refundable account and any unused funds will be returned upon completion. If the initial deposit is insufficient to cover actual costs, an additional deposit will be required. (PLNG) 37. Pay a Document Imaging fee to reimburse the City for implementation of the Document Imaging and File Retention programs, prior to issuance of Grading or Building Permits. (PLNG) 38. Prior to the facility being fully operational, the applicant shall request at least 15 days in advance, a field inspection to be conducted by the Project Planner of all site improvements. (PLNG) OTHER/MISCELLANEOUS 39. Comply with the requirements of the Contra Costa Fire Protection District. Submit complete sets of plans and specifications to the Fire District for review and approval at: Contra Costa County Fire Protection District 2010 Geary Road Pleasant Hill, CA Plan review fees are assessed at that time. The City is not responsible for the collection of fees or enforcement of requirements imposed by the Fire District. (CCCFPD) Res. No Page 24 of 78

25 Attachment The City discourages leases which convey exclusive (single service provider) rights for new telecommunication facilities to the extent that such leases may preclude development of a suitable co-location site. (PLNG) 41. The applicant shall defend (with counsel approved by City), indemnify and hold harmless the City, any agency or instrumentality thereof, and its/their respective agents, officers, officials, volunteers, and employees from and against any and all administrative and/or legal claims, actions or proceedings to attack, set aside, void, or annul approval of the project, including without limitation, any related application, permit, certification, condition, environmental determination, other approval, compliance or failure to comply with applicable laws and regulations, and/or processing methods ( Challenge ), with the exception of a Challenge arising out of the City s sole negligence or willful misconduct. The City shall have the right to pre-approve any material decision involved in defending any such Challenge, including settlement, and may (but is not obligated to) participate in the defense of any Challenge. If applicant does not promptly defend any Challenge, City may (but is not obligated to) defend such Challenge as City, in its sole discretion, determines appropriate, all at applicant s sole cost and expense. The applicant shall bear any and all losses, damages, injuries, liabilities, costs, and expenses (including, without limitation, staff time and in-house attorney's fees on a fully-loaded basis, attorney s fees for outside legal counsel, expert witness fees, court costs, and other litigation expenses) arising out of or related to any Challenge ( Costs ), whether incurred by Developer, City, or awarded to any third party, and shall pay to the City upon demand any Costs incurred by the City. No modification of the project, any application, permit, certification, condition, environmental determination, other approval, change in applicable laws and regulations, or change in processing methods shall alter the applicant s indemnity obligation. Pursuant to Government Code Section , the applicant s indemnification obligation with respect to any claim, action or proceeding to attack, set aside, void, or annul an approval of City concerning a subdivision (tentative, parcel, or final map application or approval) shall be limited to actions brought within the time period provided for in Government Code Section , unless such time period is extended for any reason. The City shall promptly notify applicant of any Challenge, and shall cooperate fully in the defense. (CA) 42. The permit shall be valid for ten (10) years (November 29, 2027) with an option for an additional ten (10) year extension, subject to approval from the Zoning Administrator. An application with the required fee must be filed and processed prior to permit expiration of November 29, (PLNG) 43. The permit and approval shall expire in one year from the date on which they became effective unless construction permits are obtained and work has begun. The effective date of the permit and approval is December 12, (PLNG) 44. A request for a time extension from the expiration date of December 12, 2018, can be considered if an application with required fee is filed at least 10 days before the original expiration date, otherwise a new application is required. Extensions are not automatically approved. Changes in conditions, City policies, surrounding neighborhood, and other factors permitted to be considered under the law, may require, or permit denial. (PLNG) Res. No Page 25 of 78

26 Attachment 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 Planning Division with updated contact information in the event that either the responsible person or such person s contact information changes. (PLNG) 46. 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 s 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. (PLNG) Res. No Page 26 of 78

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