April 8, 2019 2 3 TOWN of MORAGA STAFF REPORT 4 5 To

1 2 Meeting Date: April 8, 2019 3 4 TOWN OF MORAGA STAFF REPORT 5 6 To: Planning Commission 7 8 From: Derek Farmer, Planning Director 9 Steve Kowalski, Senior Planner 10 11 Subject: Conduct a Public Hearing and Consider Resolution __-2019 12 Recommending Town Council Adopt an Ordinance Amending 13 Chapter 8.144, “Wireless Communications Facilities, Satellite Dishes 14 and Miscellaneous Antennas” of Title 8, Planning and Zoning, of the 15 Moraga Municipal Code, to Reference “Small Cell Wireless 16 Facilities,” and Amending Various Sections Within Chapter 8.144 to 17 Add General Development Standards, Procedures and Aesthetic 18 Criteria for Small Cell Wireless Facilities, in Order to Facilitate 19 Deployment of Small Cell Wireless Facilities Within the Public Right- 20 of-Way in Accordance with Federal Communications Commission 21 Regulations; and Consider Resolution __-2019 Recommending Town 22 Council Adopt an Ordinance Amending Chapter 8.144, “Wireless 23 Communications Facilities, Satellite Dishes and Miscellaneous 24 Antennas” of Title 8, Planning and Zoning, of the Moraga Municipal 25 Code, as an Urgency Measure, to Reference “Small Cell Wireless 26 Facilities,” and Amending Various Sections Within Chapter 8.144 to 27 Add General Development Standards, Procedures and Aesthetic 28 Criteria for Small Cell Wireless Facilities, in Order to Facilitate 29 Deployment of Small Cell Wireless Facilities Within the Public Right- 30 of-Way in Accordance with Federal Communications Commission 31 Regulations. 32 33 Request 34 Staff requests that the Planning Commission 1) consider recommending the Town35 Council adopt an urgency ordinance that would go into effect immediately upon36 adoption and, 2) consider recommending the Town Council adopt a standard ordinance37 that would go through the two-step process and take effect 30 days after adoption.38 Both ordinances amend Chapter 8.144, “Wireless Communications Facilities, Satellite39 Dishes and Miscellaneous Antennas” of Title 8, Planning and Zoning, of the Moraga40 Municipal Code, to Reference “Small Cell Wireless Facilities,” and Various Sections41 Within Chapter 8.144 to Add General Development Standards, Procedures and42 Aesthetic Criteria for Small Cell Wireless Facilities, in Order to Facilitate Deployment of43

1 Small Cell Wireless Facilities Within the Public Right-of-Way in Accordance with Federal1 Communications Commission Regulations.2 3 4 Background 5 6 FCC Declaratory Ruling On September 26, 2018, the Federal Communications Commission (“FCC”) approved a7 Declaratory Ruling and a Third Report and Order, collectively referred to as the8 “Carr Order.” The Carr Order is intended to remove regulatory barriers and accelerate9 the deployment of 5G wireless communications infrastructure across the nation. It10 achieves this by expanding the degree of pre-emption over local control regarding both:11 (a) the permitting of small cell wireless facilities (also known as “small-cell sites”); and12 13 (b) the leasing of small-cell sites by local government to wireless service providers. The Carr Order went into effect on January 14, 2019 with the exception of the Order’s14 requirements relating to aesthetic standards a local government may adopt and enforce,15 which goes into effect on April 15, 2019. Several local jurisdictions have sued the16 FCC over the order because it usurps local control, but the results of that litigation will17 not be known for many months. More recently, federal Representative Anna Eshoo from18 19 California has introduced legislation in Congress (HR 530) to halt the Carr Order. 20 The FCC’s Rationale The FCC states that it adopted the Carr Order to “ensure the United States wins the21 global race to 5G to the benefit of all Americans.” The FCC states that supporting next-22 generation technologies through the adoption of smart infrastructure policy is critical to23 the public welfare and estimates that wireless carriers will invest $275 billion in small24 cell site infrastructure over the next decade, resulting in the creation of approximately25 three million new jobs and boosting the nation’s Gross Domestic Product (GDP) by26 $500 billion. The FCC also claims that its new rules will save the wireless27 telecommunications industry over $2 billion in local government fees.28 29 30 Land-Use Implications for the Town  The Carr Order does not prohibit the Town from establishing its own aesthetic31 requirements for small cell wireless facilities, provided these requirements are:32 (a) reasonable; (b) no more burdensome than those applied to similar types of33 34 infrastructure deployments; (c) objective; and (d) published in advance.  The Carr Order considers spacing requirements between small cell sites to be a35 subset of aesthetics requirements, and thus subject to the same standard.36 However, the Carr Order gives no guidance on what a reasonable spacing37 38 distance might be.  The Town cannot deny a wireless service provider the ability to provide service39 either through explicit or effective prohibitions. In other words, the Town cannot40 ban new small cell wireless facilities, establish a cap on the number of providers,41 or materially inhibit the ability of providers to compete. As a result, the Town42 cannot simply say “no” to all small cell sites within specific neighborhoods or43 other areas within its jurisdiction if it would result in an effective prohibition on44 45 service.

2  Regulations requiring all small cell wireless facilities, including antennas, to be1 placed underground would effectively prohibit wireless services because2 3 antennas have to be placed above ground in order to function.  The Town cannot regulate the type of technology a wireless service provider4 chooses to employ.5  Under the new time limits established by the Carr Order (also known as the “shot6 clock deadlines”), the Town only has 60 days to complete the review of an7 application for a small cell wireless facility being proposed on an existing8 structure (such as a street light or utility pole), and 90 days to review an9 application for a facility being proposed on a new pole or other type of structure10 (such as a fake tree).11 12 13 Conclusions The Carr Order significantly diminishes the Town’s decision-making power, but it does14 not eliminate that power altogether. By establishing new policies and procedures, the15 Town can continue to retain some degree of local control over the deployment of small16 cell sites. Furthermore, the Carr Order does not preempt the Town’s ability to negotiate17 future agreements to provide a mutually acceptable process for the deployment of small18 cell sites. Therefore, the Town has an opportunity to negotiate with wireless service19 20 providers. Separate from the Carr Order, local governments are already precluded from regulation21 of the location of wireless communications facilities, including small cell sites, based on22 the radio frequency emissions of those facilities. This pre-emption has been in effect23 since the passage of the Telecommunications Act of 1996.24 25 26 March 13, 2019 Town Council Hearing and Direction Given the abbreviated time period to adopt aesthetic criteria and development27 standards for small cell wireless facilities, staff presented its recommendations to the28 Town Council at a public hearing on March 13, 2019. Staff noted that the Town has29 regulations in place regarding wireless communications facilities in MMC Chapter 8.144.30 However, they do not pertain to small cell wireless facilities since the current ordinance31 was adopted in 1999, prior to the advent of such facilities. Furthermore, many of the32 regulations in MMC Chapter 8.144 do not reflect the various changes that have been33 made in federal law relating to other types of wireless communications facilities since34 1999, and generally need to be updated to reflect the changes in technology that have35 occurred over the last two decades. Therefore, staff recommended a two-teired36 approach, including the adoption of an urgency ordinance to establish aesthetic and37 development standards ahead of the April 15, 2019 shot clock established by the Carr38 Order, followed by a more comprehensive update to Chapter 8.144 to address the39 provisions currently in Chapter 8.144 that are inconsistent with FCC regulations. The40 Town Council agreed with this approach and voted 5-0 to direct staff to prepare an41 urgency ordinance for Planning Commission and Town Council consideration prior to42 April 15, 2019, followed by a more comprehensive update to Chapter 8.144.43 44 45 Discussion 46 The proposed amendments to MMC Chapter 8.144 contained in the draft resolution are47 intended to establish new standards pertaining to the installation of small cell wireless48

3 facilities located within the Town’s public rights-of-way that adhere to the limitations of1 the Carr Order while still protecting the aesthetic character of the Town to the extent2 allowed. More specifically, the amendments would prescribe rigorous, but fair and3 reasonable – consistent with the requirements of the Carr Order – standards which all4 wireless service providers must adhere to when proposing to install small cell wireless5 facilities on existing or new facilities located within the public right-of-way, such as street6 lights and utility poles. The standards would require service providers to employ various7 construction methods and utilize equipment and materials designed to conceal all8 visible equipment associated with the proposed facility (including antennas, wiring,9 batteries, etc.) to the maximum extent feasible to minimize any adverse aesthetic10 impacts on the environment.11 12 The amendments would also include new procedures for the processing of applications13 for new small cell wireless facilities that would allow for ministerial approval of such14 applications by the Planning Director contingent upon his or her ability to make a set of15 prescribed findings in each case and only after completion of a 10-day public notification16 period in which the owners and occupants of all property within 300 feet of the proposed17 project site are notified of the proposal. Any decisions made by the Planning Director18 would be appealable. However, because of the strict shot clock deadlines imposed by19 the Carr Order, decisions made by the Planning Director would only be appealable20 directly to the Town Council; the Commission would not be able to hear such cases.21 22 The Town is in a similar situation to most jurisdictions who are currently rushing to adopt23 urgency ordinances that establish aesthetic standards prior to the April 15, 201924 deadline imposed by the Carr order. The Town’s approach is similar to the City of25 Orinda’s who retained the services of a telecommunications law firm to guide their26 process. The City of Lafayette, to our knowledge, is not planning to take action prior to27 April 15. The Cities of San Jose, Huntington Beach and Seattle are leading three28 lawsuit opposing implementation of the Carr order. The Town is not a party to the29 litigation but is following the process.30 31 The Town has received written public comments and staff is currently summarizing the32 major concerns and responses. This information will be included in staff’s presentation33 to the Planning Commission.34 35 Amendments to Chapter 8.144 are necessary to achieve consistency with the Carr36 Order and to preserve the orderly processing of applications for small cell wireless37 facilities and to ensure the health, safety and welfare of the community through38 consistent aesthetic regulations relating to those small cell wireless facilities. In order to39 preserve the public peace, health and safety of the community, an Ordinance must be40 adopted as an urgency measure pursuant to Government Code section 36937, as there41 is insufficient time to adopt an Ordinance through the standard introduction and second42 reading/adoption process while still meeting the April 15, 2019 deadline of the Order.43 Additionally, to ensure the defensibility of the ordinance adopted as an urgency44 measure, an identical “back-up” Ordinance is recommended for adoption in the normal45 46 manner with two readings. 47

4 1 Summary of Proposed Amendments: Presently, MMC Section 8.144.010 establishes the purpose and intent of the Code Chapter: namely, to regulate all types of wireless2 communications facilities throughout the Town. The proposed amendments would adopt3 regulations on “small cell wireless facilities” that are consistent with the specific4 requirements for regulating such facilities imposed by the FCC under the Carr Order.5 Section 8.144.020 would be amended to include a definition of “Small Cell Wireless6 Facility” identical to the FCC’s definition. Section 8.144.030 would be amended to7 exclude small cell wireless facilities, since the provisions currently contained therein8 would be inconsistent with the new limitations imposed by the Carr Order (this is9 because these provisions were meant to be applied to more traditional wireless facilities10 commonly installed throughout the early 2000s, such as panel antenna arrays on PG&E11 towers, monopoles, building rooftops, etc.). Finally, a new Code section (proposed as12 Section 8.144.035) would be added that would contain the separate development13 standards and application procedures for all new small cell wireless facilities consistent14 with the provisions of the Carr Order. This new Code section would contain the rigorous15 but fair standards that new small cell wireless facilities would need to be designed in16 accordance with before they could be approved in order to protect the aesthetic quality17 of the Town.18 19 The proposed amendments would read as follows, with all new text shown as20 21 underlined: 22 23 8.144.010 - Purpose and intent. The purpose of this article is to regulate wireless communication transmission24 and/or reception facilities (hereinafter called "wireless communications facilities") to25 minimize the potential health, safety and aesthetic impacts of such facilities on the26 community, as follows:27 28 A. To establish development standards to regulate the placement and design of29 wireless communication facilities so as to preserve the unique visual character of30 the town;31 32 B. To establish development standards of wireless communications facilities in33 34 accordance with federal laws, including small cell wireless facilities as defined 35 herein; 36 C. To acknowledge the community benefit associated with the provision of wireless37 communications facilities within the town and to provide incentives for well38 designed and well placed facilities;39 40 D. To pursue additional benefits from the facilities to the public by encouraging the41 leasing of publicly owned properties where feasible for the development of42 wireless communication facilities; and43 44 E. Encourage the location of wireless communications facilities in commercial45 districts and generally discourage the location of such facilities in residential46 districts and visually sensitive areas.47 48

5 1 8.144.020 - Definitions. As used in this article:2 . . .3 4 “Small Cell Wireless Facility” is a wireless communications facility that meets the 5 following criteria: 6 1. The facility- 7 (i) is mounted on a structure 50 feet or less in height including its antennas as 8 defined in Section 1.1320(d) of Title 47 of the Code of Federal Regulations; or 9 (ii) is mounted on a structure no more than 10 percent taller than other adjacent 10 structures; or 11 (iii) does not extend the existing structure on which it is located to a height of 12 more than 50 feet or by more than 10 percent, whichever is greater. 13 2. Each antenna associated with the facility, excluding associated antenna 14 equipment, is no more than three cubic feet in volume. 15 3. All other wireless equipment associated with the structure, including the wireless 16 equipment associated with the antenna and any pre-existing associated 17 equipment on the structure, is no more than 28 cubic feet in volume. . . .18 19 20 8.144.030 - General development standards. The following development standards shall apply to the development of all new21 22 wireless communication facilities except small cell wireless facilities. A. Ground Mounted Equipment. All ground mounted wireless communication23 equipment, antennas, poles, dishes, cabinets, structures, towers or other24 appurtenances shall be:25 1. Of a minimal functional height or no greater than twenty (20) feet,26 whichever is less;27 2. Have a nonreflective finish and shall be painted or otherwise treated to28 minimize visual impacts;29 3. Shall be sited to be screened by existing development, topography or30 vegetation to the extent consistent with proper operation of the wireless31 communication facility. Additional new vegetation and its proper irrigation32 where practical, or other screening may be required as a condition of33 approval.34 35 B. Roof and Building Mounted Equipment. Roof and building mounted equipment,36 including monopoles and antennas shall:37 1. Be located as far away as feasible and aesthetically practicable from the38 outer edge of a building. Antennas attached to a building shall be painted or39 treated to match the exterior of the building or background visible beyond40 the antenna;41 2. Avoid being mounted on the peaks of roofs to the greatest extent possible42 and all other related equipment shall be screened or hidden from view.43 44 C. A wireless communication facility shall comply with all applicable FCC45 standards for radio frequency emissions and shall not adversely affect the46 public health, safety or welfare.47 48

6 D. All new wireless communication facilities shall be collocated with existing and/or1 with other planned new facilities whenever feasible and aesthetically desirable.2 Collocation is discouraged when it will increase visual impacts. Service3 providers are encouraged to collocate with other facilities such as light4 standards, utility poles and other structures where the collocation is found to5 minimize the overall visual impact.6 7 E. Any exterior lighting shall be manually operated and used only during night8 maintenance or emergencies. The lighting shall be constructed or located so9 that only the intended area is illuminated and off-site glare is fully controlled.10 11 F. Where feasible, the location of commercial wireless communication facilities12 shall be encouraged to be located on publicly-owned property or public13 easement or right-of-way.14 15 G. All equipment associated with a wireless communication facility shall be16 removed within thirty days of the discontinuation of use and the site shall be17 restored to its original preconstruction condition in a manner consistent with18 continued use by any collocated facility. The town shall be given thirty (30)19 days’ notice of intent to discontinue use of the facility prior to discontinuation of20 use.21 22 H. All proposals for wireless communications facilities shall include a description of23 the site selection process undertaken, including coverage objectives and24 alternative site analysis.25 26 I. Antennas and equipment buildings shall not be located closer than three27 hundred (300) feet from a residential structure and one hundred (100) feet from28 residential property line.29 30 31 Section 8.144.035 – General development standards and procedures for small cell 32 wireless facilities. 33 34 A. A small cell wireless facility may be constructed in all zoning districts upon 35 issuance of a Small Cell Site Permit in accordance with this section, instead of an 36 issuance of a conditional use permit under section 8.144.080. The following 37 development standards shall apply to the issuance of a small wireless facilities 38 permit, except for applications for an eligible facilities request as defined in 47 39 U.S.C. Section 1455(a): 40 1. All small cell wireless facilities proposed to be installed in the public right-of- 41 way shall require submittal and ministerial design review approval of a Small 42 Cell Site Permit application by the Planning Director or his or her designee 43 prior to building permit approval for such facility. Additionally, applicants shall 44 obtain any permits required under Chapter 12.06 and Chapter 14.04. 45 2. Any applicant proposing to install a small cell wireless facility within the public 46 right-of-way shall pay the fee for a Small Cell Site Permit established by Town 47 Council resolution;

7 1 3. All proposed installations on existing utility poles, street lights, traffic signals, 2 electric, gas, and other utility structures, and other similar facilities as defined 3 in section 12.06.020, located within the public right-of-way shall use the 4 design techniques set forth in this section to minimize visual impacts to the 5 public right of way. Antennas and pole-mounted equipment shall be screened, 6 concealed or disguised with shrouding matching the appearance of the 7 existing structure or be integrated into the structure of the proposed facility so 8 as to be hidden from view. Screening/concealing equipment shall be of 9 minimal, functional size necessary to achieve concealment objectives under 10 this subsection. Cabling and conduit shall be hidden from view by integrating 11 such cabling or conduit into existing equipment where technically feasible, 12 and visible spooling of cable shall be prohibited. 13 4. All cables or wiring associated with a facility shall be concealed within a 14 sleeve between the bottom of the antenna and the mounting bracket. 15 5. All pole-mounted equipment and antennas shall be painted to match the color 16 of the pole or other type of support structure to which it is attached. 17 6. All small cell wireless facilities shall include signage that accurately identifies 18 the facility’s owner/operator, the site name or identification number, and a 19 phone number to the owner/operator’s network operations center. No other 20 signage except that required by law or recommended by FCC, OSHA or other 21 federal government agency for compliance with radio-frequency emissions 22 regulations shall be allowed on any small cell wireless facility. 23 7. All non-antenna equipment, including equipment which is susceptible to being 24 installed in an equipment cabinet, shall be installed underground unless the 25 installation of such equipment underground is not technically feasible. This 26 undergrounding requirement shall not apply to cabling and conduit necessary 27 to mount the antenna of a small wireless facility on a new or existing pole, nor 28 apply to non-antenna equipment concealed from public view by being 29 structurally integrated into the construction of a new or existing pole for any 30 utility. 31 32 8. All vents, exhausts and similar features for undergrounded equipment shall 33 be flush to grade to the maximum extent feasible. 34 9. In no case shall a small wireless facility block any public sidewalk or 35 functionally impede an accessible path of travel. 36 10.All disturbed or damaged pavement and/or landscaping within or adjacent to 37 the public right-of-way shall be replaced and areas of bare or disturbed soils 38 must be revegetated upon completion of an installation. 39 11. Landscaping shall be required to provide screening to minimize visual 40 impacts where site conditions allow for installation of new landscaping. 41 Landscaping shall not be required where installation shall be entirely on 42 existing paved surfaces. New landscaping shall be drought-tolerant and 43 designed and installed to be natural in appearance. 44 12.The Town shall be given thirty (30) days’ notice of intent to discontinue use of 45 the facility by the service provider or its designee prior to the discontinuation. 46 All equipment associated with a discontinued facility shall be removed within 47 sixty days of the discontinuation of use and the site shall be restored to its 48 original preconstruction condition in a manner consistent with continued use

8 1 by any collocated facility. The Town may deem a facility abandoned and 2 discontinued under this subsection if the permittee fails to respond within 30 3 calendar days to a written notice sent by certified U.S. mail, return receipt 4 requested, from the Planning Director that states the basis for the Planning 5 Director’s belief that the facility has been abandoned or discontinued for a 6 continuous period of 180 days. A decision of the Planning Director to deem a 7 facility abandoned shall be provided to the service provider in writing, by 8 certified U.S. mail, return receipt requested, and shall be subject to appeal in 9 accordance with section 1.16.010. A permit shall not be rescinded for 10 discontinuance until the completion of the applicable appeal or the end of the 11 applicable appeal period if no timely appeal is filed. 12 13 B. All applications for small cell wireless facilities shall be subject to the following 14 procedures: 15 1. Any applicant proposing to install a small cell wireless facility within the public 16 right-of-way shall submit an application to the Planning Department and pay 17 the fee for a Small Cell Site Permit established by Town Council resolution; 18 2. Within 10 days of submission of any application, the Planning Director or 19 designee shall determine whether the application is complete, and if not 20 complete, shall provide the applicant notice that the application is incomplete 21 and identify materials or information needed to complete the application; 22 3. The Planning Director shall approve or deny an application ministerially and 23 without a public hearing; 24 4. The Planning Director may approve or deny an application when he/she finds 25 that: 26 a. The proposed project meets the definition of a small cell wireless facility 27 as defined Section 8.144.020; 28 b. The proposed project complies with all applicable requirements 29 prescribed in Section 8.144.035(A), unless the application of such 30 requirements to the proposed small cell wireless facility would result in 31 an effective prohibition of service; 32 c. The applicant has demonstrated that the proposed project will comply 33 with all applicable health and safety regulations, which include without 34 limitation the Americans with Disabilities Act and all FCC regulations 35 relating to RF emissions; and 36 Conditions of approval imposed by the Planning Director shall be limited 37 to compliance with requirements set forth in this section, other sections 38 of the municipal code applicable to infrastructure deployments, or 39 requirements necessary to comply with applicable state or federal law. 40 5. Within five calendar days after the Planning Director acts on an application or 41 before the FCC shot clock expires (whichever occurs first), he/she shall notify 42 the applicant of such action by written notice. If the Planning Director denies 43 the application (with or without prejudice), the written notice must contain the 44 reason(s) for the denial. 45 6. Any decision to approve or deny a small cell wireless facility shall be 46 appealable directly to the Town Council. Appeals shall be filed within five 47 business days of a decision having been rendered. Any such appeal shall 48 include a letter identifying the appellant’s name, address and contact

9 1 information and providing the basis for the appeal. All appeals shall be 2 subject to the appeal fees established in the Town’s Master Fee Schedule. 3 Appeals of an approval shall not be permitted to the extent that the appeal is 4 based on environmental effects from RF emissions that are in compliance 5 with all applicable FCC regulations. Appeals shall be decided in accordance 6 with time periods and procedures established by applicable laws and 7 regulations, including, but not limited to, decisions of the Federal 8 Communications Commission. 9 10 C. The Planning Director shall review all applications for new small cell wireless 11 facility to determine if the application is for an eligible facilities request for 12 modification of an eligible support structure, as those terms are defined in 47 13 U.S.C. Section 1455(a). If the Planning Director determines that the application 14 meets the requirements of an eligible facilities request, the Planning Director 15 shall ministerially approve the application in accordance with requirements under 16 47 C.F.R. section 1.40001. The grant or approval of a small wireless facility 17 permit to such eligible facilities request shall not be deemed to extend the 18 underlying permit term. 19 20 D. Standard Conditions of Approval for Small Cell Site Permits. 21 In addition to any other conditions of approval permitted under federal and state 22 law and this Code that the Planning Director deems appropriate or required 23 under this Code, all small cell wireless facility permits under this subsection shall 24 include the following conditions of approval: 25 1. As-Built Plans. The applicant shall submit to the Planning Director an as-built 26 set of plans and photographs depicting the entire small cell wireless facility as 27 modified, including all transmission equipment and all utilities, within ninety 28 (90) days after the completion of construction. 29 2. Indemnification. To the fullest extent permitted by law, the applicant and any 30 successors and assigns, shall defend, indemnify and hold harmless the 31 Town, its elected and appointed officials, employees, and agents, from and 32 against any liability, claims, suits, actions, arbitration proceedings, regulatory 33 proceedings, losses, expenses or costs of any kind, whether actual, alleged 34 or threatened, including, but not limited to, actual attorney fees, litigation 35 expenses and court costs of any kind without restriction or limitation, incurred 36 in relation to, as a consequence of, arising out of or in any way attributable to, 37 actually, allegedly or impliedly, in whole or in part, related to the small 38 wireless facility permit and the issuance of any permit or entitlement in 39 connection therewith. The applicant shall pay such obligations as they are 40 incurred by the Town, its employees, agents and officials, and in the event of 41 any claim or lawsuit, shall submit a deposit in such amount as the Town 42 reasonably determines necessary to protect the Town from exposure to fees, 43 costs or liability with respect to such claim or lawsuit. 44 3. Compliance with applicable laws. The applicant shall comply with all 45 applicable provisions of this code, any permit issued under this code, and all 46 other applicable federal, state, and local laws. Any failure by the Town to 47 enforce compliance with any applicable laws shall not relieve any applicant of

10 1 its obligations under this code, any permit issued under this code, or all other 2 applicable laws and regulations. 3 4. Compliance with approved plans. The proposed project shall be built in 4 compliance with the approved plans on file. 5 5. Violations. The small cell wireless facility shall be developed, maintained, and 6 operated in full compliance with the conditions of the Small Cell Site Permit, 7 any other applicable permit, and any law, statute, ordinance or other 8 regulation applicable to any development or activity on the site. Failure of the 9 applicant to cease any development or activity not in full compliance shall be 10 a violation of these conditions. Any violation of this code, the conditions of 11 approval for the Small Cell Site Permit, or any other law, statute, ordinance or 12 other regulation applicable to any development or activity on the site may 13 result in the revocation of this permit. The remedies specified in this section 14 shall be cumulative and the city may resort to any other remedy available at 15 law or in equity and resort to any one remedy shall not cause an election 16 precluding the use of any other remedy with respect to a violation. 17 18 General Plan Conformance 19 The Town’s General Plan contains several core values commonly held by the20 community. Two of those core values relate to living in an attractive, semi-rural21 community having high design standards, and living in a safe environment.22 Furthermore, one of the primary goals contained in the Community Design Chapter of23 the General Plan, CD1.7 – Wireless Communications Facilities, states:24 25 26 “Regulate the location and design of wireless communications facilities, satellite 27 dishes and other miscellaneous antennas in accordance with the Town’s 28 Ordinance No. 176 and the Federal Communications Act.” 29 Adoption of the proposed amendments to the MMC contained in the draft resolution30 would be consistent with these goals in that it would establish stringent but fair and31 reasonable design standards for small cell wireless facilities designed to maintain the32 integrity of the Town’s scenic and aesthetic character in a manner consistent with the33 limitations of the Carr Order, while also enhancing public safety and welfare by34 improving wireless communications service in those areas of the Town where coverage35 is currently limited.36 37 38 CEQA 39 The proposed ordinance is categorically exempt from the California Environmental40 Quality Act (CEQA) pursuant to CEQA Guidelines Sections 15301, Existing Facilities41 and 15303, New Construction of Small Structures because the Municipal Code42 amendments contained therein would only permit the installation of small wireless43 telecommunication facilities on existing structures such as street lights and utility poles44 that would result in the minor alteration of such structures, or on small new structures45 such as fake trees or monopoles, and CEQA Guidelines, section 15061(b)(3), which46 provides that the general rule that CEQA applies only to projects which have the47 48 potential for causing a significant effect on the environment

11 1 Alternatives 2 1. Adopt Resolution ___-2019 Recommending the Town Council Adopt an3 Ordinance Amending Section 8.144.010 – Purpose and Intent, of Title 8,4 Planning and Zoning, of the Moraga Municipal Code, as an urgency measure, to5 Reference “Small Cell Wireless Facilities,” Amending Section 8.144.020 –6 Definitions, to Include a Definition of “Small Cell Wireless Facility,” Amending7 Section 8.144.030 to Exclude Small Cell Wireless Facilities, and Adding New8 Section 8.144.035 – General Development Standards and Procedures for Small9 Cell Wireless Facilities, in Order to Facilitate Deployment of Small Cell Wireless10 Facilities Within the Public Right-of-Way in Accordance with Federal11 Communications Commission Regulations. And,12 13 2. Adopt Resolution ___-2019 Recommending the Town Council Adopt an14 Ordinance Amending Section 8.144.010 – Purpose and Intent, of Title 8,15 Planning and Zoning, of the Moraga Municipal Code, to Reference “Small Cell16 Wireless Facilities,” Amending Section 8.144.020 – Definitions, to Include a17 Definition of “Small Cell Wireless Facility,” Amending Section 8.144.030 to18 Exclude Small Cell Wireless Facilities, and Adding New Section 8.144.035 –19 General Development Standards and Procedures for Small Cell Wireless20 Facilities, in Order to Facilitate Deployment of Small Cell Wireless Facilities21 Within the Public Right-of-Way in Accordance with Federal Communications22 Commission Regulations. Or23 24 3. Identify any additional desired amendments to the Draft Ordinance (while25 remaining consistent with the limitations of the Carr Order) and forward the item26 to the Town Council with a recommendation for adoption on April 10, 2019.27 28 29 Recommendation 30 Adopt Resolution ___-2019 Recommending Town Council Adopt an Ordinance31 Amending Chapter 8.144, “Wireless Communications Facilities, Satellite Dishes and32 Miscellaneous Antennas” of Title 8, Planning and Zoning, of the Moraga Municipal33 Code, as an urgency measure, to Reference “Small Cell Wireless Facilities,” and34 Amending Various Sections Within Chapter 8.144 to Add General Development35 Standards, Procedures and Aesthetic Criteria for Small Cell Wireless Facilities, in Order36 to Facilitate Deployment of Small Cell Wireless Facilities Within the Public Right-of-Way37 in Accordance with Federal Communications Commission Regulations.38 39 Adopt Resolution ___-2019 Recommending Town Council Adopt an Ordinance40 Amending Chapter 8.144, “Wireless Communications Facilities, Satellite Dishes and41 Miscellaneous Antennas” of Title 8, Planning and Zoning, of the Moraga Municipal42 Code, to Reference “Small Cell Wireless Facilities,” and Amending Various Sections43 Within Chapter 8.144 to Add General Development Standards, Procedures and44 Aesthetic Criteria for Small Cell Wireless Facilities, in Order to Facilitate Deployment of45 Small Cell Wireless Facilities Within the Public Right-of-Way in Accordance with Federal46 Communications Commission Regulations.47 48

12 1 Report reviewed by: Cynthia Battenberg, Town Manager 2 Denise Bazzano, Assistant Town Attorney 3 4 5 Attachments: 6 7 A. Draft Resolution __-2019 Recommending Town Council Adopt an 8 Ordinance Amending Chapter 8.144, “Wireless Communications Facilities, 9 Satellite Dishes and Miscellaneous Antennas” of Title 8, Planning and 10 Zoning, of the Moraga Municipal Code, as an urgency measure to 11 Reference “Small Cell Wireless Facilities,” and Amending Various 12 Sections Within Chapter 8.144 to Add General Development Standards, 13 Procedures and Aesthetic Criteria for Small Cell Wireless Facilities, in 14 Order to Facilitate Deployment of Small Cell Wireless Facilities Within the 15 Public Right-of-Way in Accordance with Federal Communications 16 Commission Regulations. 17  Draft Exhibit A to Resolution __-2019: Proposed Amendments to 18 Chapter 8.144 – Wireless Communications Facilities, Satellite Dishes 19 and Miscellaneous Antennas 20 21 B. Draft Resolution __-2019 Recommending Town Council Adopt an 22 Ordinance Amending Chapter 8.144, “Wireless Communications Facilities, 23 Satellite Dishes and Miscellaneous Antennas” of Title 8, Planning and 24 Zoning, of the Moraga Municipal Code, to Reference “Small Cell Wireless 25 Facilities,” and Amending Various Sections Within Chapter 8.144 to Add 26 General Development Standards, Procedures and Aesthetic Criteria for 27 Small Cell Wireless Facilities, in Order to Facilitate Deployment of Small 28 Cell Wireless Facilities Within the Public Right-of-Way in Accordance with 29 Federal Communications Commission Regulations. 30  Draft Exhibit A to Resolution __-2019: Proposed Amendments to 31 Chapter 8.144 – Wireless Communications Facilities, Satellite Dishes 32 and Miscellaneous Antennas 33 34 C. FCC 18-133 - Carr Order 35 36 D. Public Correspondence 37 38

13 ATTACHMENT A

DRAFT URGENCY RESOLUTION __-2019 BEFORE THE PLANNING COMMISSION OF THE TOWN OF MORAGA

In the Matter of: Resolution No. XX-2019

Recommending the Town Council Adopt ) an Ordinance Amending Chapter 8.144, ) “Wireless Communications Facilities, ) Satellite Dishes and Miscellaneous ) Antennas” of Title 8, Planning and ) Zoning, of the Moraga Municipal Code, ) as an urgency measure, to Reference ) “Small Cell Wireless Facilities,” and ) Amending Various Sections Within ) Chapter 8.144 to Add General ) Development Standards, Procedures and ) Aesthetic Criteria for Small Cell Wireless ) Facilities, in Order to Facilitate ) Deployment of Small Cell Wireless ) Facilities Within the Public Right-of-Way ) in Accordance with Federal ) Communications Commission ) Regulations. ______

WHEREAS, on April 28, 1999 the Town Council adopted Ordinance No. 176 establishing Chapter 8.144 – Wireless Communications Facilities, Satellite Dishes and Miscellaneous Antennas (previously codified as Chapter 8-60) of the Moraga Municipal Code, which regulates wireless communications facilities, satellite dishes and antennas to minimize the potential health, safety and aesthetic impacts of such facilities on the community; and

WHEREAS, the Federal Communications Commission (FCC) regularly establishes new and updated regulations aimed at improving wireless broadband communications infrastructure across the nation for the purpose of making available to all the people of the United States rapid, efficient, nationwide, and world-wide wire and radio communication services, as well as for the purposes of national defense and promoting public safety through the use of such communications; and

WHEREAS, on September 26, 2018 the FCC adopted its Declaratory Ruling and Third Order Report (the “Carr Order”) regarding the regulation of small cell wireless facilities which aims to facilitate the deployment of such facilities across the nation in order to help fulfill the purposes described above by requiring local governments to relax various standards governing the installation and operation of such facilities; and

ResolutionNo.XX-2019 1 April8,2019 WHEREAS, the Moraga Municipal Code (including Chapter 8.144) currently does not contain any regulations specifically governing small cell wireless facilities, and regulates such facilities in the same, more rigorous manner as other types of wireless facilities, inconsistent with the provisions of the Carr Order; and

WHEREAS, the Carr Order went into effect on January 14, 2019, but the FCC gave local governments until April 15, 2019 (an additional 180 days after the publication of the Order in the Federal Register) to make the necessary changes to aesthetic requirements in their zoning ordinances pertaining to wireless facilities to achieve consistency with the Order; and

WHEREAS, on March 13, 2019, the Town Council, after a duly-noticed public hearing, directed staff to prepare an Ordinance, adopted as an urgency measure, ahead of the April 15, 2019 deadline, followed by a comprehensive update to MMC Chapter 8.144 to address all inconsistencies between the code and applicable federal regulations regarding wireless facilities; and

WHEREAS, amendments to Chapter 8.144 are necessary to achieve consistency with the Carr Order and to preserve the orderly processing of applications for small cell wireless facilities and to ensure the health, safety and welfare of the community through consistent aesthetic regulations relating to those small cell wireless facilities through adoption of an Ordinance. In order to preserve the public peace, health and safety of the community, the Ordinance must be adopted as an urgency measure pursuant to Government Code section 36937, as there is insufficient time to adopt an Ordinance through the standard introduction and second reading/adoption process while still meeting the April 15, 2019 deadline of the Order; and

WHEREAS, on April 8, 2019, the Planning Commission held a duly noticed public hearing and took public testimony on the proposed amendments and considered evidence submitted in the form of the staff report.

NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the Town of Moraga that:

SECTION 1. The Planning Commission hereby makes the following findings:

A. The purpose of the proposed Ordinance being recommended for adoption through this Resolution is to comply with recently-enacted Federal Communications Commission regulations pertaining to the facilitation of wireless broadband deployment nationwide by establishing reasonable, technically-feasible aesthetic requirements for small cell wireless facilities proposed for location within the public rights-of-way throughout the Town; and

ResolutionNo.XX-2019 2 April8,2019 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 wireless service facilities on the basis of environmental effects of radio frequency emissions to the extent that such facilities comply with the FCC’s regulations concerning such emissions; (5) prohibit any collocation or modification that the Town may not deny under federal or state law; (6) impose any unfair, unreasonable, discriminatory or anticompetitive fees that exceed the reasonable cost to provide the services for which the fee(s) is/are charged; or (7) otherwise authorize the Town to preempt any applicable federal or state law; and

C. The adoption of the proposed Ordinance would be exempt from the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines CEQA Guidelines Sections 15301, Existing Facilities and 15303,, as the amendments pertain to the installation of small wireless telecommunication facilities on existing structures such as street lights and utility poles that would result in the minor alteration of such structures, or the creation of small new structures, and CEQA Guidelines, section 15061(b)(3), which provides that the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment.

SECTION 3. The Planning Commission of the Town of Moraga does hereby recommend that the Town Council adopt an Ordinance containing amendments to Chapter 8.144 of the Town of Moraga Municipal Code, as drafted in the attached Exhibit “A” to this Resolution, as an urgency measure, pursuant to Government Code section 36937, in order to preserve the public peace, health and safety of the community.

PASSED AND ADOPTED by the Planning Commission of the Town of Moraga at a regular meeting held on April 8, 2019 by the following vote:

AYES: NOES: ABSTAIN: ABSENT: ______Suzanne D’Arcy, Chair Attest:

______Derek Farmer, Planning Director

ResolutionNo.XX-2019 3 April8,2019 DRAFT EXHIBIT “A” TO RESOLUTION __-2019

The following sections of Chapter 8.144 are recommended for amendment with additional text to existing provisions shown underlined and deleted text shown as strikethrough:

8.144.010 - Purpose and intent.

The purpose of this article is to regulate wireless communication transmission and/or reception facilities (hereinafter called "wireless communications facilities") to minimize the potential health, safety and aesthetic impacts of such facilities on the community, as follows: A. To establish development standards to regulate the placement and design of wireless communication facilities so as to preserve the unique visual character of the town; B. To establish development standards of wireless communications facilities in accordance with federal laws, including small cell wireless facilities as defined herein; C. To acknowledge the community benefit associated with the provision of wireless communications facilities within the town and to provide incentives for well designed and well placed facilities; D. To pursue additional benefits from the facilities to the public by encouraging the leasing of publicly owned properties where feasible for the development of wireless communication facilities; and E. Encourage the location of wireless communications facilities in commercial districts and generally discourage the location of such facilities in residential districts and visually sensitive areas.

8.144.020 - Definitions.

As used in this article: ... “Small Cell Wireless Facility” is a wireless communications facility that meets the following criteria: 1. The facility- (i) is mounted on a structure 50 feet or less in height including its antennas as defined in Section 1.1320(d) of Title 47 of the Code of Federal Regulations; or (ii) is mounted on a structure no more than 10 percent taller than other adjacent structures; or (iii) does not extend the existing structure on which it is located to a height of more than 50 feet or by more than 10 percent, whichever is greater.

ResolutionNo.XX-2019 4 April8,2019 2. Each antenna associated with the facility, excluding associated antenna equipment, is no more than three cubic feet in volume. 3. All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume. ... 8.144.030 - General development standards.

The following development standards shall apply to the development of all new wireless communication facilities except small cell wireless facilities. A. Ground Mounted Equipment. All ground mounted wireless communication equipment, antennas, poles, dishes, cabinets, structures, towers or other appurtenances shall be: 1. Of a minimal functional height or no greater than twenty (20) feet, whichever is less; 2. Have a nonreflective finish and shall be painted or otherwise treated to minimize visual impacts; 3. Shall be sited to be screened by existing development, topography or vegetation to the extent consistent with proper operation of the wireless communication facility. Additional new vegetation and its proper irrigation where practical, or other screening may be required as a condition of approval. B. Roof and Building Mounted Equipment. Roof and building mounted equipment, including monopoles and antennas shall: 1. Be located as far away as feasible and aesthetically practicable from the outer edge of a building. Antennas attached to a building shall be painted or treated to match the exterior of the building or background visible beyond the antenna; 2. Avoid being mounted on the peaks of roofs to the greatest extent possible and all other related equipment shall be screened or hidden from view. C. A wireless communication facility shall comply with all applicable FCC standards for radio frequency emissions and shall not adversely affect the public health, safety or welfare. D. All new wireless communication facilities shall be collocated with existing and/or with other planned new facilities whenever feasible and aesthetically desirable. Collocation is discouraged when it will increase visual impacts. Service providers are encouraged to collocate with other facilities such as light standards, utility poles and other structures where the collocation is found to minimize the overall visual impact.

ResolutionNo.XX-2019 5 April8,2019 E. Any exterior lighting shall be manually operated and used only during night maintenance or emergencies. The lighting shall be constructed or located so that only the intended area is illuminated and off-site glare is fully controlled. F. Where feasible, the location of commercial wireless communication facilities shall be encouraged to be located on publicly-owned property or public easement or right-of-way. G. All equipment associated with a wireless communication facility shall be removed within thirty days of the discontinuation of use and the site shall be restored to its original preconstruction condition in a manner consistent with continued use by any collocated facility. The town shall be given thirty (30) days’ notice of intent to discontinue use of the facility prior to discontinuation of use. H. All proposals for wireless communications facilities shall include a description of the site selection process undertaken, including coverage objectives and alternative site analysis. I. Antennas and equipment buildings shall not be located closer than three hundred (300) feet from a residential structure and one hundred (100) feet from residential property line.

Section 8.144.035 – General development standards and procedures for small cell wireless facilities.

A. A small cell wireless facility may be constructed in all zoning districts upon issuance of a Small Cell Site Permit in accordance with this section, instead of an issuance of a conditional use permit under section 8.144.080. The following development standards shall apply to the issuance of a small wireless facilities permit, except for applications for an eligible facilities request as defined in 47 U.S.C. Section 1455(a): 1. All small cell wireless facilities proposed to be installed in the public right-of- way shall require submittal and ministerial design review approval of a Small Cell Site Permit application by the planning director or his or her designee prior to building permit approval for such facility. Additionally, applicants shall obtain any permits required under Chapter 12.06 and Chapter 14.04.

2. Any applicant proposing to install a small cell wireless facility within the public right-of-way shall pay the fee for a Small Cell Site Permit established by Town Council resolution;

3. All proposed installations on existing utility poles, street lights, traffic signals, electric, gas, and other utility structures, and other similar facilities as defined in section 12.06.020, located within the public right-of-way shall use the design techniques set forth in this section to minimize visual impacts to the public right of way. Antennas and pole-mounted equipment shall be

ResolutionNo.XX-2019 6 April8,2019 screened, concealed or disguised with shrouding matching the appearance of the existing structure or be integrated into the structure of the proposed facility so as to be hidden from view. Screening/concealing equipment shall be of minimal, functional size necessary to achieve concealment objectives under this subsection. Cabling and conduit shall be hidden from view by integrating such cabling or conduit into existing equipment where technically feasible, and visible spooling of cable shall be prohibited.

4. All cables or wiring associated with a facility shall be concealed within a sleeve between the bottom of the antenna and the mounting bracket.

5. All pole-mounted equipment and antennas shall be painted to match the color of the pole or other type of support structure to which it is attached.

6. All small cell wireless facilities shall include signage that accurately identifies the facility’s owner/operator, the site name or identification number, and a phone number to the owner/operator’s network operations center. No other signage except that required by law or recommended by FCC, OSHA or other federal government agency for compliance with radio- frequency emissions regulations shall be allowed on any small cell wireless facility.

7. All non-antenna equipment, including equipment which is susceptible to being installed in an equipment cabinet, shall be installed underground unless the installation of such equipment underground is not technically feasible. This undergrounding requirement shall not apply to cabling and conduit necessary to mount the antenna of a small wireless facility on a new or existing pole, nor apply to non-antenna equipment concealed from public view by being structurally integrated into the construction of a new or existing pole for any utility.

8. All vents, exhausts and similar features for undergrounded equipment shall be flush to grade to the maximum extent feasible.

9. In no case shall a small wireless facility block any public sidewalk or functionally impede an accessible path of travel.

10. All disturbed or damaged pavement and/or landscaping within or adjacent to the public right-of-way shall be replaced and areas of bare or disturbed soils must be revegetated upon completion of an installation.

11. Landscaping shall be required to provide screening to minimize visual impacts where site conditions allow for installation of new landscaping. Landscaping shall not be required where installation shall be entirely on

ResolutionNo.XX-2019 7 April8,2019 existing paved surfaces. New landscaping shall be drought-tolerant and designed and installed to be natural in appearance.

12. The Town shall be given thirty (30) days’ notice of intent to discontinue use of the facility by the service provider or its designee prior to the discontinuation. All equipment associated with a discontinued facility shall be removed within sixty days of the discontinuation of use and the site shall be restored to its original preconstruction condition in a manner consistent with continued use by any collocated facility. The Town may deem a facility abandoned and discontinued under this subsection if the permittee fails to respond within 30 calendar days to a written notice sent by certified U.S. mail, return receipt requested, from the planning director that states the basis for the planning director’s belief that the facility has been abandoned or discontinued for a continuous period of 180 days. A decision of the planning director to deem a facility abandoned shall be provided to the service provider in writing, by certified U.S. mail, return receipt requested, and shall be subject to appeal in accordance with section 1.16.010. A permit shall not be rescinded for discontinuance until the completion of the applicable appeal or the end of the applicable appeal period if no timely appeal is filed.

B. All applications for small cell wireless facilities shall be subject to the following procedures: 1. Any applicant proposing to install a small cell wireless facility within the public right-of-way shall submit an application to the planning department and pay the fee for a Small Cell Site Permit established by Town Council resolution; 2. Within 10 days of submission of any application, the planning director or designee shall determine whether the application is complete, and if not complete, shall provide the applicant notice that the application is incomplete and identify materials or information needed to complete the application;

3. The planning director shall approve or deny an application ministerially and without a public hearing;

4. The planning director may approve or deny an application when he/she finds that:

a. The proposed project meets the definition of a small cell wireless facility as defined Section 8.144.020;

b. The proposed project complies with all applicable requirements prescribed in Section 8.144.035(A), unless the application of such requirements to the proposed small cell wireless facility would result in an effective prohibition of service;

ResolutionNo.XX-2019 8 April8,2019 c. The applicant has demonstrated that the proposed project will comply with all applicable health and safety regulations, which include without limitation the Americans with Disabilities Act and all FCC regulations relating to RF emissions; and

Conditions of approval imposed by the planning director shall be limited to compliance with requirements set forth in this section, other sections of the city code applicable to infrastructure deployments, or requirements necessary to comply with applicable state or federal law. 5. Within five calendar days after the planning director acts on an application or before the FCC shot clock expires (whichever occurs first), he/she shall notify the applicant of such action by written notice. If the planning director denies the application (with or without prejudice), the written notice must contain the reason(s) for the denial.

6. Any decision to approve or deny a small cell wireless facility shall be appealable directly to the Town Council. Appeals shall be filed within five business days of a decision having been rendered. Any such appeal shall include a letter identifying the appellant’s name, address and contact information and providing the basis for the appeal. All appeals shall be subject to the appeal fees established in the Town’s Master Fee Schedule. Appeals of an approval shall not be permitted to the extent that the appeal is based on environmental effects from RF emissions that are in compliance with all applicable FCC regulations. Appeals shall be decided in accordance with time periods and procedures established by applicable laws and regulations, including, but not limited to, decisions of the Federal Communications Commission.

C. The planning director shall review all applications for new small cell wireless facility to determine if the application is for an eligible facilities request for modification of an eligible support structure, as those terms are defined in 47 U.S.C. Section 1455(a). If the planning director determines that the application meets the requirements of an eligible facilities request, the planning director shall ministerially approve the application in accordance with requirements under 47 C.F.R. section 1.40001. The grant or approval of a small wireless facility permit to such eligible facilities request shall not be deemed to extend the underlying permit term.

D. Standard Conditions of Approval for Small Cell Site Permits. In addition to any other conditions of approval permitted under federal and state law and this Code that the director deems appropriate or required under this Code, all small cell wireless facility permits under this subsection shall include the following conditions of approval: 1. As-Built Plans. The applicant shall submit to the director an as-built set of plans and photographs depicting the entire small cell wireless facility as modified, including all transmission equipment and all utilities, within ninety (90) days after the completion of construction.

ResolutionNo.XX-2019 9 April8,2019 2. Indemnification. To the fullest extent permitted by law, the applicant and any successors and assigns, shall defend, indemnify and hold harmless the Town, its elected and appointed officials, employees, and agents, from and against any liability, claims, suits, actions, arbitration proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including, but not limited to, actual attorney fees, litigation expenses and court costs of any kind without restriction or limitation, incurred in relation to, as a consequence of, arising out of or in any way attributable to, actually, allegedly or impliedly, in whole or in part, related to the small wireless facility permit and the issuance of any permit or entitlement in connection therewith. The applicant shall pay such obligations as they are incurred by the Town, its employees, agents and officials, and in the event of any claim or lawsuit, shall submit a deposit in such amount as the Town reasonably determines necessary to protect the Town from exposure to fees, costs or liability with respect to such claim or lawsuit. 3. Compliance with applicable laws. The applicant shall comply with all applicable provisions of this code, any permit issued under this code, and all other applicable federal, state, and local laws. Any failure by the Town to enforce compliance with any applicable laws shall not relieve any applicant of its obligations under this code, any permit issued under this code, or all other applicable laws and regulations. 4. Compliance with approved plans. The proposed project shall be built in compliance with the approved plans on file. 5. Violations. The small cell wireless facility shall be developed, maintained, and operated in full compliance with the conditions of theSmall Cell Site Permit, any other applicable permit, and any law, statute, ordinance or other regulation applicable to any development or activity on the site. Failure of the applicant to cease any development or activity not in full compliance shall be a violation of these conditions. Any violation of this code, the conditions of approval for theSmall Cell Site Permit, or any other law, statute, ordinance or other regulation applicable to any development or activity on the site may result in the revocation of this permit. The remedies specified in this section shall be cumulative and the city may resort to any other remedy available at law or in equity and resort to any one remedy shall not cause an election precluding the use of any other remedy with respect to a violation.

ResolutionNo.XX-2019 10 April8,2019 ATTACHMENT B

DRAFT RESOLUTION __-2019 BEFORE THE PLANNING COMMISSION OF THE TOWN OF MORAGA

In the Matter of: Resolution No. XX-2019

Recommending the Town Council Adopt ) an Ordinance Amending Chapter 8.144, ) “Wireless Communications Facilities, ) Satellite Dishes and Miscellaneous ) Antennas” of Title 8, Planning and ) Zoning, of the Moraga Municipal Code to ) Reference “Small Cell Wireless ) Facilities,” and Amending Various ) Sections Within Chapter 8.144 to Add ) General Development Standards, ) Procedures and Aesthetic Criteria for ) Small Cell Wireless Facilities, in Order to ) Facilitate Deployment of Small Cell ) Wireless Facilities Within the Public ) Right-of-Way in Accordance with Federal ) Communications Commission ) Regulations. ) ______

WHEREAS, the Moraga Municipal Code (including Chapter 8.144) currently does not contain any regulations specifically governing small cell wireless facilities, and

ResolutionNo.XX-2019 1 April8,2019 regulates such facilities in the same, more rigorous manner as other types of wireless facilities, inconsistent with the provisions of the Carr Order; and

WHEREAS, on March 13, 2019, the Town Council, after a duly-noticed public hearing, directed staff to prepare an Ordinance ahead of the April 15, 2019 deadline, followed by a comprehensive update to MMC Chapter 8.144 to address all inconsistencies between the code and applicable federal regulations regarding wireless facilities; and

NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the Town of Moraga that:

SECTION 1. The Planning Commission hereby makes the following findings:

B. The proposed Ordinance is not intended to, nor shall it be interpreted or applied to: (1) prohibit or effectively prohibit any 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 wireless service facilities on the basis of environmental effects of radio frequency

ResolutionNo.XX-2019 2 April8,2019 emissions to the extent that such facilities comply with the FCC’s regulations concerning such emissions; (5) prohibit any collocation or modification that the Town may not deny under federal or state law; (6) impose any unfair, unreasonable, discriminatory or anticompetitive fees that exceed the reasonable cost to provide the services for which the fee(s) is/are charged; or (7) otherwise authorize the Town to preempt any applicable federal or state law; and

C. The adoption of the proposed Ordinance would be exempt from the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines CEQA Guidelines Sections 15301, Existing Facilities and 15303, as the amendments pertain to the installation of small wireless telecommunication facilities on existing structures such as street lights and utility poles that would result in the minor alteration of such structures, or the creation of small new structures, and CEQA Guidelines, section 15061(b)(3), which provides that the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment.

PASSED AND ADOPTED by the Planning Commission of the Town of Moraga at a regular meeting held on April 8, 2019 by the following vote:

AYES: NOES: ABSTAIN: ABSENT: ______Suzanne D’Arcy, Chair Attest:

______Derek Farmer, Planning Director

ResolutionNo.XX-2019 3 April8,2019 DRAFT EXHIBIT “A” TO RESOLUTION __-2019

The following sections of Chapter 8.144 are recommended for amendment with additional text to existing provisions shown underlined and deleted text shown as strikethrough:

8.144.010 - Purpose and intent.

8.144.020 - Definitions.

8.144.030 - General development standards.