Town of Corte Madera Regular Town Council Meeting Eli Beckman Todd Cusimano Mayor Town Manager

Fred Casissa Amy Ackerman Councilmember Interim Town Attorney

Charles Lee Rebecca Vaughn Councilmember Town Clerk

Leila Mongan Town Hall Councilmember 300 Tamalpais Drive

Corte Madera, CA 94925 Bob Ravasio townofcortemadera.org Councilmember

TUESDAY, APRIL 20, 2021, 6:00 PM VIA VIDEOCONFERENCE ONLY

NOTICE TO PUBLIC: Due to Coronavirus (COVID-19), the Tuesday, April 20, 2021, Regular Town Council meeting will occur via videoconference only. All Councilmembers will be participating remotely, and residents are urged to follow the orders issued by the Marin County Public Health Officer and Governor and participate in the meeting remotely as well. As allowed under the Governor’s Executive Order N-29-20 (March 17, 2020), during the duration of the COVID emergency the Town of Corte Madera will no longer offer an in-person meeting location for the public to attend.

Members of the public may view and participate in the meeting remotely through the following link: https://tinyurl.com/y7aw8ubu (No Pre-Registration Needed- Click on Link at Meeting Start Time) You may call in using: 1 (408) 638-0968 (Zoom webinar ID: 914-5144- 0692) Or iPhone one-tap: +14086380968,,91451440692#

How to submit public comment remotely: 1. Email [email protected] prior to 5:00 P.M. on the day of the meeting. 2. Email [email protected] during the meeting. 3. Join the meeting using the link above and select the “Raise Hand” icon during the meeting, or press *9 to add yourself to the speaker queue if calling in to the meeting.

Anyone with a disability needing further assistance with public comment should contact the Clerk at least 2 hours before the beginning of the meeting to make alternative arrangements at [email protected] or 415- 927-5050. Click here for more information on how to register to watch the meeting and submit public comment remotely.

To download the complete agenda packet for this meeting, visit our archive center by clicking here.

6:00 p.m. CLOSED SESSION:

1. Public Comment Regarding Closed Session Item 2. PUBLIC EMPLOYEE PERFORMANCE EVALUATION AND APPOINTMENT Closed Session Pursuant to Government Code Section 54957(b) Title: Town Attorney

6:30pm REGULAR MEETING: 1. CALL TO ORDER, ROLL CALL AND SALUTE TO THE FLAG 1.A. Report out of Closed Session

2. OPEN TIME FOR PUBLIC COMMENT

At the beginning of each regular Town Council meeting, any member of the public may address the Town Council concerning any item not on the Council's agenda. Speakers will be limited to three (3) minutes unless otherwise specified by the Mayor or the Presiding Officer. The public will be given an opportunity to speak on each agenda item at the time it is called. The Council may discuss and/or take action regarding any or all of the items listed below. Once the public comment portion of any item on this agenda has been closed by the Council, no further comment from the public will be permitted unless authorized by the Mayor or the Council and if so authorized, said additional public comment shall be limited to the provision of information not previously provided to the Council or as otherwise limited by order of the Mayor or Council.

3. PRESENTATIONS: None

4. CONSENT CALENDAR

The purpose of the Consent Calendar is to group items together which are routine or have been discussed previously and do not require further discussion. They will be approved by a single motion. Any member of the Town Council, Town Staff, or the Public may request removal of an item for discussion. Rescheduling of the item(s) will be at the discretion of the Mayor and Town Council.

4.A. Waive Further Reading and Authorize Introduction and/or Adoption of Resolutions and Ordinances by Title Only (Standard procedural action – no backup information provided)

4.B. Authorize the Director of Public Works to Approve the Plans and Contract Documents and Authorize the Advertisement for Bids for the Paradise Drive Sidewalk Widening Project – San Clemente Drive to Seawolf Passage, No. 15-007

Recommendation: Provide authorization as requested 4.B. Staff Report and Attachments

4.C. Adopt Resolution No. 15/2021 (1) Endorsing the Marin Clean Energy Deep Green Program in Alignment with the Town of Corte Madera Climate Action Plan, and (2) Allowing Two Temporary Signs in the Public Right-of-Way from April 21, 2021 to May 5, 2021 Publicizing the Marin Clean Energy Deep Green Program

Recommendation: Adoption resolution as requested 4.C. Staff Report and Attachments

4.D. Approval of Contract With Rochelle Grechman-Dibley Beginning May 10, 2021, For A Not to Exceed Amount of $38,080, for Interim Parks and Recreation Director Services During the Director’s Anticipated Leave and Authorize the Town Manager to Execute the Contract

Recommendation: Provide authorization as requested 4.D. Staff Report and Attachments

4.E. Approval of General Fund Revenue and Expenditure Report for March 2021

Recommendation: Approve item as requested 4.E. Staff Report and Attachments

4.F. Approval of Accounts Payable Warrants for March 2021

Recommendation: Approve item as requested 4.F. Staff Report and Attachments

4.G. Approve Minutes of the April 6, 2021 Regular Town Council Meeting

Recommendation: Approve item as requested 4.G. 4.06.21 Draft Town Council Meeting Minutes

5. PUBLIC HEARINGS:

5.A. First Reading / Possible Introduction of Ordinance No. 1006 Amending Sections 6.14.010, 6.14.020, 6.14.040, 6.14.070, 6.14.100, And Repealing Sections 6.14.050, 6.14.060, And 6.14.080 Of Chapter 6.14, Prohibiting Smoking In Public Places, Places Of Employment, Other Areas, And Multi-Unit Housing, To (1) Amend Definitions To Conform To The Definitions Used In State Law; (2) To Require 100 Percent Of All Multi-Unit Residential Properties To Be Smoke-Free By One Year After The Enactment Of This Ordinance; (3) To Prohibit Smoking In Town Vehicles And (4) To Prohibit Smoking Within 20 Feet Of A Building Or Road Construction Crew; (5) Prohibit All Smoking Of Cannabis, Including For Medical Purposes In All Units Of Multi-Unit Properties; (6) Allow For Enforcement Of The Ordinance By Administrative Citation; And Amending Sections 6.16.030 And 6.16.040 Of Chapter 6.16 To Amend Definitions To Conform To The Definitions Used In State Law And To Repeal Provisions That Duplicate State Law

Recommendation: Hold public hearing, receive public comment and consider introduction of the Ordinance 5.A. Staff Report and Attachments Late Correspondence Related to Item 5.A.

6. BUSINESS ITEMS

6.A. 2021 Pension Obligation Bonds – Consideration and Possible Adoption of Resolution No. 16/2021 Approving Indenture of Trust, Official Statement and Bond Purchase Agreement

Recommendation: Discuss and adopt Resolution as requested 6.A. Staff Report Attachment 1: Resolution No. 16/2021 Attachment 2: Indenture of Trust Attachment 3: Preliminary Official Statement Attachment 4: Bond Purchase Agreement Attachment 5: April 6, 2021 Pension Presentation to Town Council Attachment 6: April 6, 2021 Staff Report 6.B. Consideration and Possible Adoption of Resolution No. 17/2021 Approving the Execution and Delivery of Lease Certificates of Participation to Finance the Town Hall Project, and Related Documents and Actions

Recommendation: Discuss and adopt Resolution as requested 6.B. Staff Report Attachment 1: Resolution Attachment 2: First Amendment and Supplement to Lease Agreement Attachment 3: First Amendment to Site Lease Attachment 4: Trust Agreement Attachment 5: Certificate Purchase Agreement Attachment 6: Preliminary Official Statement (including Continuing Disclosure Certificate)

6.C. Consideration and Possible Adoption of Resolution No. 18/2021, Adopting an Amended Policy Implementing Provisions of Municipal Code Chapter 12.38 by Revising Town Policy for Application Requirements, Review Procedures, and Evaluation Criteria for Right of Way Agreement Applications for Small Cell Wireless Communication Facilities.

Recommendation: Discuss and Adopt Resolution as requested 6.C. Staff Report and Attachments

7. COUNCIL REPORTS - Town Manager Report - Town Council Reports

8. DISCUSSION OF DRAFT AGENDA FOR UPCOMING TOWN COUNCIL MEETING

8.A. Review of Draft Agenda for Tuesday, May 4, 2021 Town Council Meeting

Recommendation: Review item and provide direction to staff 8.A. 5.04.21 Draft Town Council Agenda

9. ADJOURNMENT

ORDER OF BUSINESS: The Sanitary District No. 2 (SD2) meetings begin upon conclusion of the meeting of the Corte Madera Town Council unless otherwise noted. Agendas for SD2 are posted separately.

REPORTS: Town Council Staff Reports are usually available by 5:00 p.m., Friday prior to the Council Meeting, and may be obtained at the Corte Madera Town Hall, or by calling 415-927-5050. Copies of the reports relating to agenda items are available for review in the Town Clerk's Office, at the Corte Madera Library, Fire Station 13 (5600 Paradise Drive, Corte Madera 94925) and https://www.townofcortemadera.org/681/Agendas-Minutes-and-Notices. Materials related to an item on this agenda that have been submitted to the Town Council or staff after distribution of the agenda packet are available for public inspection in the Town Clerk's Office located at Town Hall, 300 Tamalpais Drive, Corte Madera, CA 94925, during normal business hours, 8 a.m. to 12 p.m. and 1 p.m. to 4 p.m.

AMERICANS WITH DISABILITIES ACT: If you need special assistance to participate in this meeting, please contact the Town Clerk at 415-927-5085. For auxiliary aids or services or other reasonable accommodations to be provided by the Town at or before the meeting please notify the Town Clerk at least 3 business days in advance of the meeting date. If the town does not receive timely notification of your reasonable request, the Town may not be able to make the necessary arrangements by the time of the meeting.

NOTIFICATION LIST: To sign up to receive automatic notifications regarding meetings and agendas, please visit the Town's website at https://www.townofcortemadera.org and click on "Notify Me" to register, or email the Town Clerk at: [email protected].

CORTE MADERA TOWN COUNCIL STAFF REPORT

REPORT DATE: April 5, 2021 MEETING DATE: April 20, 2021

TO: Honorable Mayor and Members of the Town Council

FROM: Chris Good, Senior Civil Engineer

R.J. Suokko, Director of Public Works

SUBJECT: Authorize the Director of Public Works to Approve the Plans and Contract Documents and Authorize the Advertisement for Bids for the Paradise Drive Sidewalk Widening Project – San Clemente Drive to Seawolf Passage, No. 15- 007        

RECOMMENDED ACTION:

Authorize the Director of Public Works to approve the plans and contract documents and authorize the advertisement for bids for the Paradise Drive Sidewalk Widening Project – San Clemente Drive to Seawolf Passage, No. 15-007.

BACKGROUND:

This project originated in the Safe Routes to Schools Task Force Committee in 2015, with many requests to widen the sidewalk coming from the Mariner Cove community. Paradise Drive between San Clemente Drive and Seawolf Passage currently has a four foot wide sidewalk on the north side of the road which is frequently used by children traveling to and from nearby schools. On the west end of the project at San Clemente Drive, the sidewalk connects to the Bay Trail, which is a Class 1 multi-use path.

In 2017, Council approved Resolution No. 30/2017 allowing Town staff to apply for a One Bay Area grant (OBAG) through the Metropolitan Transportation Commission (MTC), where the Town was awarded $595,000 in federal Congestion Mitigation and Air Quality Improvement Program (CMAQ) grant funds for construction (these grant funds expire at the end of 2021).

DISCUSSION:

The purpose of the project is to improve bicycle and pedestrian safety by widening the sidewalk on the north side of Paradise drive from 4-feet to 8-feet, for approximately 1,500 linear feet between San Clemente Drive and Seawolf Passage. To accomplish this, the 3’ shoulder in the road will be removed, the traffic lanes will be slightly narrowed, and two sections of center median island will be narrowed on westbound Paradise Drive. The sidewalk will be raised to reduce the

1 4.B. steep cross slope on westbound Paradise Drive and improve drainage in the gutter. Work will include installing new ADA curb ramps, replacing storm drain structures, replacing driveway approaches, minor asphalt paving, modifying retaining walls, adjusting fences, removing 5 trees, minor landscaping, and adjusting utility boxes.

The new widened sidewalk will improve access for pedestrians and bicyclists along Paradise Drive outside of the busy roadway. The path will create a safer transition between the Bay Trail at San Clemente Drive and Seawolf Passage which connects to the Cove School via Spindrift Passage and all of Mariner Cove.

This project will be followed by the 2021 Road Rehabilitation Project in early fall of 2021, which includes resurfacing of both sides of the road of Paradise Drive from San Clemente Drive to Seawolf Passage.

FISCAL IMPACT:

Estimated Expenditures:

Engineer’s Estimate $1,200,000 10% Construction Contingency $120,000 Consultant Inspector & Material Testing* $100,000

Total Estimated Expenditures: $1,420,000 Federal CMAQ grant fund - $595,000

Measure F, Sales Tax Contribution $825,000**

*Town staff will perform overall construction management responsibilities **These funds were previously allocated in the June 2019 adopted budget.

ENVIRONMENTAL IMPACT:

This project is categorically exempt from the California Environmental Quality Act (CEQA) Guidelines pursuant to California Code of Regulations, Title 14, Division 6, Chapter 3 (“CEQA Guidelines”), under Section 15301 Existing Facilities.

OPTIONS:

1. Authorize the Director of Public Works to Approve the Plans and Contract Documents and Authorize the Advertisement for Bids for the Paradise Drive Sidewalk Widening Project – San Clemente Drive to Seawolf Passage, No. 15-007. 2. Take no action.

ATTACHMENTS:

Attachment 1 – Existing Conditions Photos Attachment 2 – Project Webpage Attachment 3 – Project Site Plan

THIS ITEM HAS BEEN REVIEWED AND APPROVED BY THE TOWN MANAGER. 2 ATTACHMENT 1

Existing Conditions Photos

Paradise drive north sidewalk facing west near Seawolf Passage. Poor sidewalk drainage has caused ponding over sidewalk.

Paradise drive north sidewalk facing west near 5608 Paradise. Existing 4’ sidewalk is offset. 4

Paradise drive crosswalk across Harbor Drive. Curb ramps are not ADA compliant and crosswalk is in poor condition.

Paradise drive north sidewalk facing west near Harbor Drive. Gutter and sidewalk have drainage issues causing water ponding.

5 ATTACHMENT 2

Project Webpage

6 https://www.townofcortemadera.org/930/Paradise-Drive-Sidewalk-Widening-Project

Paradise Drive Sidewalk Widening – San Clemente Drive to Seawolf Passage

The Town of Corte Madera is in the design phase of a project to widen the existing 4-foot wide sidewalk on the north side of Paradise Drive to 8 feet, between San Clemente Drive and Seawolf Passage, in order to create a new multi-use path that is accessible for both pedestrians and bicyclists. The new multi-use path will connect to the Bay Trail at San Clemente Drive and provide a pathway for both pedestrian and cyclists to use outside of the busy roadway. The project will also raise the sidewalk up to 15 inches in places to help repair steep cross slopes on Paradise Drive and improve drainage within the project limits.

The Town plans to resurface Paradise Drive as part of the 2021 Road Rehabilitation Project, shortly after completion of the sidewalk-widening project.

This project originated in the Safe Routes to Schools Task Force Committee with many requests coming from residents in the Mariner Cove neighborhood who were concerned about the narrow existing sidewalk that is used heavily by children who use the route to walk to school. The project has been discussed at the Bicycle Pedestrian Advisory Committee (BPAC).

The Town received a federal One Bay Area Grant (OBAG), which will contribute $595,000 towards construction of this project.

Status: Design.

Project Type(s): Roadway, Bicycle, Pedestrian, Traffic, Sustainability

Construction Schedule: Construction is anticipated to begin in 2021. For more information, contact Chris Good [email protected] for follow-up questions.

7 ATTACHMENT 3

Project Site Plan

8 9

CORTE MADERA TOWN COUNCIL STAFF REPORT

REPORT DATE: April 15, 2021 MEETING DATE: April 20, 2021

TO: Honorable Mayor and Members of the Town Council

FROM: Tracy Hegarty, Administrative Analyst, Planning & Building

SUBJECT: Adopt Resolution No. 15/2021 (1) Endorsing the Marin Clean Energy Deep Green Program in Alignment with the Town of Corte Madera Climate Action Plan, and (2) Allowing Two Temporary Signs in the Public Right-of-Way from April 21, 2021 to May 5, 2021 Publicizing the Marin Clean Energy Deep Green Program        

RECOMMENDED ACTION:

Adopt Resolution No. 15/2021

BACKGROUND:

This is a request from Marin Clean Energy, in coordination with the Corte Madera Climate Action Committee, to place two temporary banners in the public right-of-way to coincide with Earth Day, from April 21, 2021 to May 5, 2021, publicizing the Marin Clean Energy Deep Green program.

The Zoning Ordinance allows signs in the public right-of-way or on public property if: (1) They are advertising Town-sponsored or Town-endorsed events or programs; and (2) If they are approved by the Town Council.

DISCUSSION:

Marin Clean Energy and the Climate Action Committee have requested that the Town Council endorse the Marin Clean Energy Deep Green 100% renewable energy program and approve temporary banner signs in two locations in the public right-of-way to publicize the program and to coincide with Earth Day. The banners will be installed in the following locations as shown in Attachments A and B to the Resolution, per the approved Banner Location Program, adopted on August 16, 2011 (Resolution No. 3672).

April 21, 2021 to May 5, 2021: • Location #1 – Madera Boulevard, across from Safeway • Location #2 – Redwood Hwy., at the East end of Wornum Drive

1 4.C. Marin Clean Energy is a public electricity provider that gives all PG&E electric customers (residential, commercial, and municipal) the ability to purchase their electricity from 60-100% renewable energy sources such as solar, wind, bioenergy, geothermal, and hydroelectric. Marin Clean Energy’s mission is to address climate change by reducing energy-related greenhouse gas emissions with renewable energy and energy efficiency at stable and affordable rates. The proposed banners will forward this mission and publicize the Marin Clean Energy Deep Green renewable energy program. With Deep Green, the power for a home or business comes from 100% renewable non-polluting wind and solar power produced in California. Additionally, half of the Deep Green premium goes toward the Deep Green Renewable Development Fund, which helps to fund the build out of local renewable energy projects.

Promoting renewable energy strategies such as this forwards the Town’s goals and priorities related to addressing climate change. Marin Clean Energy’s Deep Green renewable energy program is identified in the Climate Action Plan as a climate action strategy to reduce greenhouse gas emissions as both a Recommended Community Action and a Recommended Government Operations Action. The Town began purchasing Deep Green electricity for its facilities in 2017.

FISCAL IMPACT:

Marin Clean Energy will supply the banners. The Public Works Department will install and remove the horizontal banners and the removable hardware for Marin Clean Energy. Marin Clean Energy’s Deep Green renewable energy program is identified as a climate action strategy to reduce greenhouse gas emissions in the Town’s Climate Action Plan. For this reason, a cost recovery fee has not been charged.

ENVIRONMENTAL IMPACT:

The activity is covered by the general rule that CEQA does not apply where it can be seen with certainty that there is no possibility that the activity will have a significant effect on the environment (CEQA, Article 5, Section 15061(b)(3)).

OPTIONS:

1. Adopt the resolution as presented. 2. Adopt the resolution with modifications. 3. Take no action at this time.

ATTACHMENTS:

1. Attachment 1, Town Council Resolution with Attachments A and B

THIS ITEM HAS BEEN REVIEWED AND APPROVED BY THE TOWN MANAGER.

ATTACHMENT 1

Resolution No. 15/2021

RESOLUTION NO. 15/2021

A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF CORTE MADERA (1) ENDORSING THE MARIN CLEAN ENERGY DEEP GREEN PROGRAM IN ALIGNMENT WITH THE TOWN OF CORTE MADERA CLIMATE ACTION PLAN, AND (2) ALLOWING TWO TEMPORARY SIGNS IN THE PUBLIC RIGHT-OF-WAY FROM APRIL 21, 2021 TO MAY 5, 2021 PUBLICIZING THE MARIN CLEAN ENERGY DEEP GREEN PROGRAM ______

WHEREAS, on March 29, 2021, Marin Clean Energy requested permission to install two banner signs in the public right-of-way from April 21, 2021 to May 5, 2021, publicizing the Marin Clean Energy Deep Green 100% renewable energy program and to coincide with Earth Day; and

WHEREAS, the Marin Clean Energy Deep Green renewable energy program gives all residential, commercial, and municipal electricity customers the ability to purchase their electricity from 100% renewable non-polluting wind and solar power produced in California; and

WHEREAS, Marin Clean Energy’s Deep Green renewable energy program is identified in the Town of Corte Madera Climate Action Plan as a climate action strategy to reduce greenhouse gas emissions as both a Recommended Community Action and a Recommended Government Operations Action; and

WHEREAS, promoting renewable energy strategies such as this forwards the Town’s goals and priorities related to addressing climate change and is in alignment with the Town’s Climate Action Plan; and

WHEREAS, Corte Madera Municipal Code Section 18.22.050(10)(A) permits such signs with the approval of the Town Council.

NOW, THEREFORE, BE IT RESOLVED, that the Corte Madera Town Council does hereby endorse the Marin Clean Energy Deep Green Program, and approves the request to install two 4’-tall by 7’-wide temporary banner signs as shown in Attachments A and B, subject to the following condition:

1. The temporary banner signs are permitted to be displayed in the public right-of-way in accord with the Banner Location Program and per the following schedule:

April 21, 2021 to May 5, 2021: • Location #1 – Madera Boulevard, across from Safeway • Location #2 – Redwood Hwy., at the East end of Wornum Drive

CALIFORNIA ENVIRONMENTAL QUALITY ACT (“CEQA”) DETERMINATION

* * * * * * * * * * * *

I HEREBY CERTIFY that the foregoing resolution was duly and regularly adopted by the Town Council of Corte Madera at a regular meeting held on the 20th day of April 2021, by the following vote, to wit:

AYES: Councilmembers: NOES: Councilmembers: ABSENT: Councilmembers:

______Eli Beckman, Mayor ATTEST:

______Rebecca Vaughn, Town Clerk

ATTACHMENT A BANNER EXAMPLE

ATTACHMENT B BANNER LOCATIONS

CORTE MADERA TOWN COUNCIL STAFF REPORT

REPORT DATE: April 15, 2021 MEETING DATE: April 20, 2021

TO: Honorable Mayor and Members of the Town Council

FROM: Ashley Howe, Parks and Recreation Director

SUBJECT: Approve Contract with Rochelle Grechman-Dibley Beginning May 10, 2021, For A Not to Exceed Amount of $38,080, for Interim Parks and Recreation Director Services During the Director’s Anticipated Leave and Authorize the Town Manager to Execute the Contract        

RECOMMENDED ACTION:

That the Town Council authorize the Town Manager to execute the contract with Rochelle Grechman-Dibley beginning May 10, 2021, for not to exceed amount of $38,080, for Interim Parks and Recreation Director services during the Director’s anticipated leave.

BACKGROUND:

The Parks and Recreation Director will be on leave, for an anticipated 17 weeks, subject to change, beginning in mid-May. To ensure continuity of service to the community, and to the Department and Town staff, through the duration of her leave, the Director proposes to contract with Rochelle Grechman-Dibley, to provide Interim Director Services, for a not to exceed amount of $38,080, beginning May 10, 2021. (The Agreement is included with this report as Attachment 1)

DISCUSSION:

Ms. Grechman-Dibley is currently under contract with the Town through June 30, 2021 at $70 an hour to provide “expert guidance and recommendations to the Parks and Recreation Director for development of a recreation child care program and to assess and improve Parks and Recreation Department policies, procedures, and forms to enhance Department efficiency”. Ms. Grechman- Dibley retired from the City of San Rafael (non-PERS agency) on March 30, 2021 with over 33 years of experience in the Community Services Department. Her experience extends to supervision of the child care division, creation of the afterschool enrichment program, rental and maintenance of facilities including the San Rafael Community Center, Albert Park ballfield and stadium, and tennis courts.

Ms. Grechman-Dibley is the Director’s first choice, as her current consultant role with the Town has allowed her to build a strong rapport and good working relationship with the Parks and Recreation team. She currently has availability in her schedule to accept this expanded role and can 1 4.D. accommodate the work schedule as proposed. (See Scope of Services, included with this report as Exhibit A of Attachment 1)

She also has extensive experience in the recreation and child care industry, and has direct working relationships with Patty Elliot, Principal at Neil Cummins and with Nick Stone, Recreation Supervisor at Larkspur Recreation. Rochelle is also a Trainer for Trainers through the California School Ages Consortium (CalSAC), which provides child development training at a variety of youth programs throughout the state. Director Howe has worked closely with her for 5 years during her tenure with the City of San Rafael and has trust that Ms. Grechman-Dibley will support and continue to elevate the work that she has begun within the Parks and Recreation Department, Parks and Recreation Commission, and relationships with the School District since joining the Town of Corte Madera in March, 2020.

Upon Council approval, the Town Manager will terminate the current contract with Ms. Grechman- Dibley, which is in effect through June 30, 2021, and will execute the new contract, effective May 10, 2021.

FISCAL IMPACT:

The fiscal impact associated with approve of this contract is a not to exceed amount of $38,080, which will be covered through the Department’s approved budget for FY2020-21 and will be included in the budget for FY2021-22.

Should the term of service need to be extended, staff will return to Council with a request for amendment at a later date.

ENVIRONMENTAL IMPACT:

This activity is not defined as a project under CEQA (Section 15378 CEQA Guidelines).

OPTIONS:

1. Approve contract as presented and authorize the Town Manager to execute the agreement 2. Approve contract with modifications and authorize the Town Manager to execute the agreement 3. Do not approve contract and provide further direction to staff.

ATTACHMENTS:

1. Proposed Agreement with Rochelle Grechman-Dibley for Interim Director services, with Scope of Services, Fees and Payment Schedule, and Director job description included as Exhibits A, B, and C.

THIS ITEM HAS BEEN REVIEWED AND APPROVED BY THE TOWN MANAGER.

ATTACHMENT 1

Proposed Agreement with Rochelle Grechman-Dibley for Interim Director services, with Scope of Services, Fees and Payment Schedule, and Director job description included as Exhibits A, B, and C.

TOWN OF CORTE MADERA PROFESSIONAL SERVICES CONTRACT

(Parks & Recreation Department)

THIS CONTRACT is made and entered into this ____ day of April 2021, by and between the TOWN OF CORTE MADERA, hereinafter referred to as “Town” and Rochelle Grechman- Dibley hereinafter referred to as “Consultant” whose address is 193 Ridgewood Drive, San Rafael, CA 94901. TOWN and Consultant (“the Parties”) hereby agree as follows:

RECITALS: WHEREAS, Town desires to retain a person to provide the following Consultant services: Provide expert guidance as the Interim Director of the Parks and Recreation Department while the Director is on leave. Consultant will perform all duties of the Director of the Parks and Recreation Department as set forth in Exhibit A and the Job Description attached hereto as Exhibit C, and including but not limited to providing expert guidance and recommendations to Town on developing a recreational child care program and improving Parks and Recreation Department policies, procedures, and forms to improve Department efficiency, and support staff and the Parks and Recreation Commission in the absence of the Director; and

WHEREAS, Consultant warrants that it is qualified and competent to render the aforesaid services;

NOW, THEREFORE, for and in consideration of the Contract made, and the payments to be made by Town, the parties agree to the following:

1. SCOPE OF SERVICES: A. Consultant agrees to provide the services described in Exhibit A attached hereto and by this reference made part hereof. Exhibit A is not intended to, and shall not be construed so as to, modify or expand the terms, conditions or provisions contained in this Agreement. In the event of a conflict between this Agreement and any Exhibit or other document relating to the scope of services or payment, the terms of this Agreement shall control. B. Changes to the Scope of Services shall be by written amendment to this Agreement and shall be paid at the rates set forth in Exhibit B or as otherwise agreed upon by the parties in writing prior to the provision of any such additional services. C. Standard of Performance- Consultant shall perform all services under this Agreement in the manner and according to the standards currently observed by a competent practitioner of Consultant’s profession in California. D. Consultant acknowledges that this appointment to the position of Interim Parks and Recreation Director is on a temporary or interim basis only.

2. TERM OF CONTRACT: This services to be performed pursuant to this Contract shall commence on May 10, 2021 above and shall automatically terminate on the date the Director of Parks and Recreation Department returns from leave or September 3, 2021 whichever occurs first. Notwithstanding the dates set forth herein, Town shall have sole discretion to extend this Contract for up to 6 additional months

by providing written notice to Consultant. All Certificate(s) of Insurance must be received by Town prior to approval of this Agreement. Insurance must be current on the day the Agreement commences and if scheduled to lapse prior to termination date, must be automatically updated before final payment may be made to Consultant. The final invoice must be submitted within thirty (30) days of completion of the stated scope of services.

3. COMPESATION AND PAYMENT SCHEDULE: The fees and payment schedule for furnishing services under this Contract shall be based on $70.00 an hour with a planned average of 32 hours per week as outlined in the schedule, attached as Exhibit B. Except as specifically provided in Exhibit B, Consultant shall not receive any benefit, incentive, compensation in lieu of benefits, or other form of compensation in addition to the pay rate stated herein. The payments shall constitute all compensation to Consultant for all costs of services, including but not limited to, direct costs of labor of employees engaged by Consultant, travel expense, telephone charges, copying and reproduction, computer time, and any and all other costs, expenses and charges of Consultant. In no event shall Town be obligated to pay late fees or interest, whether or not such requirements are contained in Consultant’s invoice. As set forth in Section 15, should the funding source for this Contract be reduced, Consultant agrees that this maximum cost to Town may be amended by written notice from Town to reflect that reduction.

Said fees shall remain in effect for the entire term of the Contract and any extensions. Consultant shall provide Town with his/her/its Federal Tax I.D. number prior to submitting the first invoice. Consultant shall submit monthly invoices to Town in the form approved by Town. Such invoices shall at a minimum itemize the services performed as of the date of the invoice and set forth a progress report, including work accomplished, percent of each task completed, and planned effort for the next period.

The cost to Town for the services to be provided herein will not exceed the maximum sum of $38,080 (thirty-eight thousand and eighty dollars and zero cents).

4. INSURANCE: All required insurance policies shall remain in force through the life of this Contract and shall be payable on a “per occurrence” basis unless Town specifically consents to a “claims made” basis. The insurer shall supply Town adequate proof of insurance and/or a certificate of insurance evidencing coverages and limits prior to approval of this Agreement and commencement of work. Should any of the required insurance policies in this Contract be cancelled or non-renewed, it is the Consultant’s responsibility to notify the Town immediately upon receipt of the notice of cancellation or non-renewal. A. Commercial Automobile Liability: Where the services to be provided under this Contract involve or require the use of any type of vehicle by Consultant, Consultant shall provide comprehensive business or commercial automobile liability coverage, including non- owned and hired automobile liability, in the amount of $1,000,000.00.

B. Workers’ Compensation: The Consultant acknowledges the State of California requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of the Labor Code. Consultant certifies that she has no employees.

Failure to provide and maintain the insurance required by this Contract will constitute material breach of this Contract. In addition to any other available remedies. Town may suspend payment to the Consultant for any services provided during any time that insurance was not in effect and until such time as the Consultant provides adequate evidence that Consultant has obtained the required coverage.

5. ANTI DISCRIMINATION AND ANTI HARASSMENT Consultant shall not unlawfully discriminate against or harass any individual including, but not limited to, any employee or volunteer of the Town based on race, color, religion, nationality, sex, sexual orientation, age or condition of disability. Consultant understands and agrees that Consultant is bound by and will comply with the anti-discrimination and anti-harassment mandates of all Federal, State and local statutes, regulations and ordinances.

6. SUBCONTRACTING The Consultant shall not subcontract any portion of the work required by this Contract without prior written approval of the Town.

7. ASSIGNMENT: The rights, responsibilities and duties under this Contract are personal to the Consultant and may not be transferred or assigned. 8. LICENSING AND PERMITS: Consultant shall maintain the appropriate licenses throughout the life of this Contract. Consultant shall also maintain any and all permits which might be required by the work to be performed herein. 9. BOOKS OF RECORD AND AUDIT PROVISION: Consultant shall maintain on a current basis complete books and records relating to this Contract. These documents and records shall be retained for at least five (5) years from the completion of this Contract. Consultant will permit Town to audit all books, accounts or records relating to this Contract or all books, accounts or records of any business entities controlled by Consultant who participated in this Contract in any way. Any audit may be conducted on Consultant’s premises or, at Town’s option, Consultant shall provide all books and records within a maximum of fifteen (15) days upon receipt of written notice from Town. Consultant shall refund any monies erroneously charged.

10. WORK PRODUCT/ PRE-EXISTING WORK PRODUCT OF CONSULTANT: Any and all work product resulting from this Contract is commissioned by the Town as a work for hire. The Town shall be considered, for all purposes, the author of the work product and shall have all rights of authorship to the work, including, but not limited to, the exclusive right to use, publish, reproduce, copy and make derivative use of, the work product or otherwise grant others limited rights to use the work product.

To the extent Consultant incorporates into the work product any pre-existing work product owned by the Consultant, Consultant hereby acknowledges and agrees that ownership of such work product shall be transferred to the Town.

Consultant shall fully defend, indemnify and hold harmless the Town, its officers, agents employees and each and every one of them, from and against any and all claims, actions, lawsuits or other proceedings alleging that all or part of the information prepared, produced, or provided

3 by Consultant pursuant to this Agreement infringes upon any third party’s trademark, trade name, copyright, patent or other intellectual property rights. This obligation shall survive any termination of this Agreement.

11. CONFIDENTIALITY OF TOWN INFORMATION: During performance of this Agreement, Consultant may gain access to and use Town information including but not limited to inventions machinery, products, prices, apparatus, costs, discounts, future plans business affairs, governmental affairs, processes, trade secrets, technical matters, systems, facilities, customer lists, product design, copyright, data, and other vital information (hereafter collectively referred to as “Town Information” that are valuable, special and unique assets of the Town. Consultant agrees to protect all Town information and treat it as strictly confidential, and further agrees that Consultant shall not at any time, either directly or indirectly, divulge, disclose or communicate in any manner any town information to a third party without the prior written consent of Town. In addition, Consultant shall comply with any Town policies governing use of Town’s network and technology systems. A violation by Consultant of this section shall be a material violation of this Agreement and shall justify legal and/or equitable relief.

12. TERMINATION AT CONVENIENCE OF TOWN: A. If the Consultant fails to provide in any manner the services required under this Contract or otherwise fails to comply with the terms of this Contract or violates any ordinance, regulation or other law which applies to its performance herein, the Town may terminate this Contract by giving five (5) calendar days written notice to the party involved.

B. The Consultant shall be excused for failures to perform services herein if such services are prevented by acts of God, strikes, labor disputes or other forces over which the Consultant has no control.

C. Either party hereto may terminate this Contract without cause by giving thirty (30) calendar days written notice to the other parties. Notice of termination shall be by written notice to the other parties and be sent by registered mail.

D. In the event of termination not the fault of the Consultant, the Consultant shall be paid for services performed to the date of termination in accordance with the terms of this Contract so long as proof of required insurance is provided for the periods covered in the Contract or Amendment(s). Consultant shall submit to Town an itemized statement of services performed as of the date of termination. These services may include both completed work and work in progress at the time of termination. Town shall pay Consultant for any services for which compensation is owned; provided, however, Town shall not in any manner be liable for lost profits that might have been made by Consultant had the Agreement not been terminated or had Consultant completed the services required by the Agreement. Consultant shall promptly deliver to Town all documents related to the performance of this Agreement in its possession or control. All such documents shall be the property of Town without additional compensation to Consultant.

E. Town shall have the right to temporarily suspend Consultant’s performance in whole or in part, by giving a written notice of suspension to Consultant. If Town gives such notice of suspension, Consultant shall immediately suspend its activities under this Agreement, as specified in such notice.

13. RELATIONSHIP BETWEEN THE PARTIES: It is expressly understood that in the performance of the work and services agreed to be performed, the Consultant shall act in an independent capacity and as an independent contractor and not as an officer, employee or agent of the Town. As an independent contractor she shall not obtain any rights to retirement benefits or other benefits which accrue to Town employee(s). Consultant shall be solely responsible to pay all required taxes, including but not limited to, all withholding social security, and workers’ compensation.

14. INDEMNIFICATION: To the extent allowed by the California Government Code, the Town shall defend, hold harmless, and indemnify Consultant using legal counsel of the Town's choosing, against expense or legal liability for acts or omissions by Consultant occurring within the course and scope of Consultant’s performance under this Agreement except as provided below.

Consultant agrees to indemnify, defend, and hold Town, its employees, officers, and agents harmless from any and all liabilities including, but not limited to, litigation costs and attorney’s fees arising from any and all claims and losses to anyone who may be injured or damaged by reason of Consultant’s recklessness or willful misconduct in the performance of this Contract.

15. APPROPRIATIONS: The Town’s performance and obligation to pay under this Contract is contingent upon an annual appropriation by the Town of Corte Madera Town Council, the State of California or other third party. Should the funds not be appropriated, Town may terminate this Contract with respect to those payments for which such funds are not appropriated. Town will give Consultant thirty (30) days’ written notice of such termination. All obligations of Town to make payments after the termination date will cease. Where the funding source for this Contract is contingent upon an annual appropriation or grant from the Town of Corte Madera Town Council, the State of California or other third party, Town’s performance and obligation to pay under this Contract is limited by the availability of those funds. Should the funding source for this Contract be eliminated or reduced, upon written notice to Consultant, Town may reduce the Maximum Cost to Town identified in section 4 to reflect that elimination or reduction.

16. NOTICES: This Contract shall be managed and administered on Town’s behalf individual named below. Except as otherwise provided in this Agreement, any notice, submittal or communication required or permitted to be served on a party, shall be in writing and may be served by personal delivery to the person or the office of the person identified below. Service may also be made by mail, by placing first-class postage, and addressed as indicated below, and depositing in the United States mail to:

If to the TOWN: TOWN OF CORTE MADERA Attn: Todd Cusimano, Town Manager 300 Tamalpais Drive Corte Madera, CA 94925

If to the CONSULTANT: Rochelle Grechman-Dibley 193 Ridgewood Drive San Rafael, CA 94901

17. CONFLICT OF INTEREST: A. Consultant covenants that they have or shall acquire any interest, directly or indirectly, that would conflict in any manner with the interests of the Town or that would in any way hinder Consultant’s performance of services under this Agreement. Consultant agrees to avoid conflicts of interest or the appearance of any conflicts of interest with the interests of Town at all times during the performance of this Agreement.

B. Consultant shall comply with the requirements of the Political Reform Act, California Government Code sections 87200 et seq., and comply with the conflict of interest provisions of the Political Reform Act that generally prohibit individuals from making or participating in the making of decisions that will have a material financial effect on their economic interests. This includes individuals who make government decisions or who serve in a staff capacity.

C. The individuals who will provide services or perform work pursuant to this Agreement are “Consultants” within the meaning of the Political Reform Act. ______Yes ______No If Yes is checked by Town, Consultant must, within 30 days after execution of the Agreement ensure that all individuals subject to filing requirements, file with Town the appropriate Statements of Economic Interests.

D. The above Statements of Economic Interest are public records subject to public disclosure under the California Public Records Act. Town may withhold all or a portion of any payment due under this Agreement until all required statements are filed.

18. COMPLIANCE WITH APPLICABLE LAWS: The Consultant shall comply with any and all Federal, State and local laws, rules, regulations, ordinances orders and resolutions: including, but not limited to Marin Nuclear Free Zone and Living Wage Ordinance. Copies of any of the above-referenced local laws and resolutions may be secured from the Contract Manager referenced in section 21. Consultant shall conform with the Americans With Disabilities Act of 1990 (42 U.S.C. 12101, et seq,). Consultant shall pay to the Town when due all applicable business taxes. Town may deduct any delinquent business taxes, and any penalties and interest added to the delinquent taxes, from its payments to Consultant. In performing services under the Agreement during a declared statewide or local emergency, Consultant shall comply with all recommendations issued by federal, state and/or local health officials to protect the health and safety of Consultant’s employees and agents, the Town’s employees and agents, volunteers and the general public.

19. INTERPRETATION: The headings used herein are for reference. The terms of the Agreement are set out in the text under the headings.

20. SEVERABILITY: If any provision of this Agreement, or any portion thereof, is found by any court of competent jurisdiction to be unenforceable or invalid for any reason, such provision shall be severable and shall not in any way impair the enforceability of any other provision of this Agreement.

21. ENTIRETY OF CONTRACT: This Agreement constitutes the entire agreement between the parties relating to the subject of this Agreement and supersedes all previous agreements, promises, representations, understandings and negotiations, whether written or oral, among the parties with respect to the subject matter hereof.

22. NO WAIVER: Waiver by either party of any breach or violation of any requirement of this Agreement shall not be deemed to be a waiver of any such breach in the future, or of the breach of any other requirement of this Agreement.

23. AMENDMENT: This Contract may be amended or modified only by written Agreement of all parties.

24. JURISDICTION AND VENUE: This Contract shall be construed in accordance with the laws of the State of California and the parties hereto agree that venue shall be in Marin County, California.

25. RELEASE: Consultant and its officers, employees and agents hereby waive and release, without limitation, Town and its predecessors, successors, subsidiaries, related entities, and current and former officers, directors, trustees, agents, attorneys, employees, volunteers and assigns from any and all liabilities, claims, demands, damages, acts or omissions, obligations and causes of action of every nature, kind and description, in law, equity, or otherwise, arising from or related to any injury or illness sustained due to exposure to COVID-19. 26. Time is of the essence in the completion of the work CONSULTANT is required to perform hereunder and in each of the provisions of this Agreement.

27. ELECTRONIC TRANSMISSION OF CONTRACT AND SIGNATURE: The Parties agree that this Agreement may be transmitted and signed by electronic mail by any of the Parties, and that such signatures shall have the same force and effect as original signatures, in accordance with California Government Code section 16.5 and Civil Code section 1633.7.”.

28. ACKNOWLEDGEMENT OF EXHIBITS Consultant’s ✔ Check Applicable Exhibits Initials

X Exhibit A. Scope of Services

X Exhibit B. Fees and Payment X Exhibit C. Job Description for Town of Corte Madera Parks & Recreation Director

IN WITNESS WHEREOF, the parties have executed this Contract on the date first written above.

CONSULTANT: APPROVED BY TOWN OF CORTE MADERA:

By: ______By: ______Name: Rochelle Grechman-Dibley Todd Cusimano Title: Town Manager

EXHIBIT “A” SCOPE OF SERVICES

The services provided by the Consultant shall be as follows:

This Engagement anticipates expert guidance as the Interim Director of the Parks and Recreation Department while the Director is on leave. Consultant will perform all duties of the Director of the Parks and Recreation Department as set forth in this Exhibit A, the Job Description attached hereto as Exhibit C, and including but not limited to providing expert guidance and recommendations to Town on developing a recreational child care program and improving Parks and Recreation Department policies, procedures, and forms to improve Department support staff and the Parks and Recreation Commission efficiency in the absence of the Director

CONSULTANT may function as representative of Corte Madera in scheduling and coordinating any activities related to the agreed to Scope of Services. All activities under this Agreement shall be performed in a professional manner. CONSULTANT shall make any documents and records relating to the Scope of Services available for review and/or audit evaluation by the Town at all reasonable times during the contract period and as provided by the Contract.

CONSULTANT shall have no independent power to bind or commit the Town to any decision or course of action, and shall not represent to any person or business that they have such power.

As Interim Director, Scope shall include but not be limited to: (1) Staffing: a. Evaluate organizational structure; including supervision, scheduling, staffing, part- time employees; b. Mentor, train and evaluate staff performance; c. Pursue hiring and training of new Preschool/Child Care Program team to begin Fall 2021. (2) Improvement of Processes: a. Evaluate and improve website, technology and registration process where appropriate; (3) Programming: a. Mentor Recreation Coordinator of implementation of afterschool enrichment program; b. Improve services and programs; (4) The Commission: a. Lead Commission meetings monthly May-August (and during any extension of term), including agenda setting and staff report writing; i. Current Parks and Recreation Commission Meeting dates are listed below but are subject to change: 1. May 24, 2021 2. June 28, 2021 3. July 26, 2021 4. August 23, 2021 b. Attend any Town Council Meetings where a Parks & Recreation Department agenda item is listed, including staff report writing, and related presentations. 9

i. Ex: Staff report and submission of proclamation for July as Parks Make Life Better Month at a June/July Council meeting. c. Collaborate with the following Commission sub-committees: i. Master Plan ii. National Fitness Campaign Grant/Court installation iii. Town Park Plaza- Phase 3; (5) Outside Partnerships/Best Practices a. Communicate with community stakeholders to ensure strong partnerships; b. Develop opportunities to partner with Larkspur in every aspect of Parks and Recreation; c. Evaluate best practices provided by other jurisdictions, as well as cost recovery models and fee structures. (6) Estimated Hours and Schedule Hours and schedule are estimates only and shall be subject to change in the discretion and at the direction of the Town Manager a. Monday- mostly work from home, 9:00am-5:00pm. • Attend Department Head meetings, currently Mondays from 10:00am- 11:00am. • PRC meetings & flex hours on those days. April introduction, May, June, July & Aug. (one summer meeting will likely be cancelled). b. Tuesday- Thursday in office, 9:00am-5:00pm. c. Friday- off.

EXHIBIT “B” FEES AND PAYMENT SCHEDULE

Consultant shall perform the services outlined in Exhibit A for a fee not to exceed the maximum sum indicated in section 3 of this Contract.

TOWN agrees to pay Consultant for services related the accomplishment of activities specified in the Scope of Work and invoiced on a monthly basis as provided in Section 3 of the Agreement.

Payment Schedule: As set forth in Section 3 of the Agreement, Consultant shall receive $70 an hour for an average of 32 hours of work per week upon the submission of service related invoices. Provided no default of this agreement has occurred, Consultant shall be compensated, within thirty (30) days of receipt of monthly invoices, based on services specified above. Total payment shall not exceed $38,080 (thirty-eight thousand and eighty dollars, and zero cents).

Town may in its sole discretion provide the following equipment to Consultant: access to the Parks and Recreation Director’s office and use of landline phone, copier, and general office supplies. Town will create a temporary email address and use of laptop. Town will provide a cell phone or reimburse the Consultant monthly for use of personal cell phone to conduct Town business. Consultant is required to review and agree to the Town’s computer, email, and internet use police.

Any equipment or facilities or access provided must be used exclusively for Town related business purposes. All use must conform to each and every Town regulation, policy and procedure. Any equipment provided must be returned to Town on request or no later than the termination date of this Agreement. All Consultant access to facilities and/or the computer system will be terminated in Town’s sole discretion and in no event later than the termination date of this Agreement.

All changes and/or extra work shall be performed and paid for in accordance with the following:

Only the Town Manager may authorize in writing payment of expenses or extra and/or changed work. Consultant expressly recognizes that other TOWN personnel are without authorization to either order extra and/or changed work or waive contract requirements. Failure of Consultant to secure the TOWN Manager's authorization for such extra and/or changed work shall constitute a waiver of any and all right to adjustment in contract price due to such unauthorized work. All changes to the scope of work or payments pursuant to this Agreement must be approved in writing prior to the work being performed.

EXHIBIT “C” JOB DESCRIPTION FOR TOWN OF CORTE MADERA PARKS & RECREATION DIRECTOR

TOWN OF CORTE MADERA

DIRECTOR OF PARKS AND RECREATION

DEFINITION

To plan, direct, manage, and oversee the activities and operations of the Parks and Recreation Department including park planning, facilities use planning and scheduling, recreational planning and capital planning; to coordinate assigned activities with other Town departments and outside agencies; and to provide highly responsible and complex administrative support to the Town Manager.

DISTINGUISHING CHARACTERISTICS

This is a single position class with responsibility for the Town's Parks and Recreation Department, fulfilling assigned responsibilities within broad guidelines. Incumbent is responsible for planning, organizing, directing, managing, supervising and coordinating the operations and activities of the department. Incumbent assumes full management responsibility for the Parks and Recreation Department and services including recreation classes/activities, arts programs, youth and adult sports programs, youth enrichment programs, senior services, summer camps, Town-wide and agency special events and community affairs. Incumbent ensures that activities of the department are completed in a timely and efficient manner consistent with defined policies and regulations.

SUPERVISION EXERCISED

Receives general administrative direction from the Town Manager.

Exercises direct supervision over supervisory, technical, and maintenance staff.

EXAMPLES OF IMPORTANT AND ESSENTIAL DUTIES

Assume management responsibility for all Parks and Recreation activities including park planning, recreational planning, capital planning and other related support services and functions; develop new programs and directly manage existing programs as required.

Manage the development and implementation of Parks and Recreation Department goals, objectives, policies, and priorities; allocate resources accordingly.

Monitor and evaluate the efficiency and effectiveness of service delivery methods and procedures; assess and monitor workload and administrative and support systems; identify opportunities for improvement; direct the implementation of changes. Town of Corte Madera Director of Parks and Recreation (Continued)

Recruit, select, evaluate, and promote department personnel; consider, evaluate and resolve employee grievances; implement discipline and termination procedures; develop and promote staff training and motivation programs; develop and implement drug testing and training programs; review and sign payroll for all Parks and Recreation Department staff.

Plan, direct, and coordinate the Parks and Recreation work plan; meet with staff to identify and resolve problems; assign projects and programmatic areas of responsibility; oversee the activities of a staff involved in departmental programs and functions; review and evaluate work methods and procedures.

Develop and manage the Parks and Recreation Department budget and the capital project budget; forecast additional funds needed for staffing, equipment, materials, and supplies; direct the monitoring of and approval expenditures; direct the preparation of and implement budgetary adjustments as necessary.

Market and develop programs that will generate income and reduce the subsidy required to provide services; write grants to generate income for renovation of indoor and outdoor facilities fields; monitor joint powers agreements.

Provide staff assistance to the Town Manager, Town Council, Parks and Recreation Commission, and related bodies as required; prepare and present staff reports, agendas, and other necessary correspondence.

Advise the Town Manager on staffing and organizational needs. Establish, within Town policies, appropriate service and staffing level. Monitor and evaluate the efficiency and effectiveness of service delivery methods and procedures.

Represent the department to elected officials, the Town Manager, other Town Departments, Town Commissions and Committees, outside agencies and professional organizations, citizen and community groups; interpret and explain department activities, programs, projects, goals, objectives and priorities.

Confer with contractors, architects, school districts, landscape architects, Town Departments and Department Directors, a variety of agencies, and the general public in acquiring information and coordinating trips, events, and other recreation and parks related matters.

Answer questions and provide information to the public; receive and review registration applications for completeness; investigate complaints and recommend corrective action as necessary to resolve complaints; plan and implement a quality assurance program.

Act as Permit Coordinator including film coordination and special events; prepare and complete permits Town of Corte Madera Director of Parks and Recreation (Continued)

Stay abreast of new trends and innovations in the field by attending professional seminars and workshops.

OTHER JOB-RELATED DUTIES

Write articles for newspapers and other media releases. Prepare contracts for building and park rentals. Perform related duties and responsibilities as assigned.

JOB RELATED AND ESSENTIAL QUALIFICATIONS

Knowledge of:

Operational characteristics, services, and activities of municipal government recreation program.

Pertinent Federal, State, and local laws, codes, and regulations.

Principles of supervision, training, and performance evaluation.

Recent developments and sources of information in the recreation field.

Organization and management practices as applied to the analysis and evaluation of programs, policies, and operational needs.

Modern and complex principles and practices of project management, program development and administration.

Advanced principles and practices of municipal budget preparation and administration.

Skill to:

Operate modem office equipment including computer equipment.

Ability to:

Provide administrative and professional leadership and direction for the Town's administrative functions and other areas as assigned; delegate authority and responsibility. Town of Corte Madera Director of Parks and Recreation (Continued)

Develop, implement, and administer goals, objectives, and procedures for providing effective and efficient Parks and Recreation.

Plan, organize, direct, and coordinate the work of assigned personnel; delegate authority and responsibility.

Identify and respond to community, Town Manager, Town Council, and Parks and Recreation Commission’s issues, concerns, and needs.

Analyze problems, identify alternative solutions, project consequences of proposed actions, and implement recommendations in support of goals.

Prepare and administer budgets; allocate limited resources in a cost-effective manner.

Research, collect, compile, and analyze information and data.

Interpret and apply the policies, procedures, laws, and regulations pertaining to assigned programs and functions.

Gain cooperation through discussion and persuasion.

Prepare and deliver effective oral presentations.

Exercise good judgment, flexibility, creativity, and sensitivity in response to changing situations and needs.

Communicate clearly and concisely, both orally and in writing; prepare complete and accurate reports.

Establish, maintain, and foster positive and harmonious working relationships with those contacted in the course of work including a diverse population.

Experience and Training Guidelines: Any combination equivalent to experience and training that would provide the required knowledge, skills, and abilities would be qualifying. A typical way to obtain the knowledge, skills, and abilities would be:

Experience:

Six years of increasingly responsible organizational and management experience including a minimum of four years of administrative and supervisory experience in the recreation field. Qualifying experience could be in the public, private or nonprofit sectors of the recreation industry.

Training: Town of Corte Madera Director of Parks and Recreation (Continued)

Equivalent to a Bachelor's degree from an accredited college or university with major course work in public administration, business administration, recreation management, park and resource management, or a related field. A Master’s degree is highly desirable.

Special Requirements: Essential duties require the following physical skills and work environment:

Ability to work in a standard office environment; requires the ability to exert a small amount of physical effort in sedentary to light work involving moving from one area of the office or Community Center to another, as well as between Town Hall offices and the Parks and Recreation office; requires sufficient hand/eye coordination to perform semi-skilled repetitive movements, such as data entry, and/or use of calculators, ten-key adding machine; to exert moderate amount of physical effort involving lifting and moving of recreation equipment.

Effective Date: May, 1997 Revised: May 2005, November 2019 Council Approval: Reso. No. 3404, July 5, 2005 CORTE MADERA TOWN COUNCIL STAFF REPORT

REPORT DATE: April 2, 2021 MEETING DATE: April 20, 2021

TO: Honorable Mayor and Members of the Town Council

FROM: Daria Carrillo, Finance Director

SUBJECT: March 2021 General Fund Revenue and Expenditure Report

       

RECOMMENDED ACTION:

That the Town Council approve the Revenue and Expenditure Report for the period ending March 31, 2021.

BACKGROUND:

The attached revenue and expenditure reports are as of March 31, 2021, and reflect financial activity transacted during 75% of the budget year. These reports include the General Fund only.

The first report shows revenue and expenditures by major category. The second shows expenditures by department; revenues in the general fund are not categorized by department.

The reports show the total activity for the previous year and the activity through March 2020 as well as the budget and activity through March 2021.

Attachment #1 displays the information by category and Attachment #2 displays the information by department. Revenue is not included on Attachement #2 as revenue in the general fund is not recorded by department.

DISCUSSION:

Revenue:

As indicated on the attached document, the General Fund revenue received through March 2021

1 4.E. is approximately 61% of the total budgeted for the fiscal year. Last year the Town had also received 61% of total revenue at the same time. The Town has received $1,152,567 less revenue than at the same time last year. Please note the following:

• Property tax is $149,352, or 3.9%, more than the amount received last year at this time. Secured property tax, the Town’s largest source of property tax revenue, has increased by 5.6% as compared with last year at this time. • Sales tax revenue is $348,331, or 7.8%, less than last year at this time. Sales tax revenue received through March includes payments through January 2021. The Town has received 75 % of budgeted sales tax revenue, as compared to 71% of total revenue received last year at this time. This does not include Measure F Sales Tax which is accounted for in its own separate fund. Measure F Sales Tax revenue received to date is $1,900,895, which is $473,082, or 19.9%, less than the amount received last year at the same time. The budget was adjusted in July 2020 in anticipation of the decrease in revenue and sales tax revenue, both in the General Fund and the Measure F Sales Tax Fund, is in alignment with the budget. • Transient Occupany Tax has decreased by $501,492 or 64%, compared to the amount received last year at the same time. 55% of budgeted revenue for the current fiscal year has been received through March. The decrease in revenue is mainly due to a decrease in travel and tourism as a result of the COVID 19 pandemic. • The negative ($121,210) in Other Revenue is primarily the result of the transfer of revenue belonging to the Sanitary District. In the previous year, Sanitary District revenue in the amount of $136,092 was mistakenly recorded in the General Fund and was transferred to the Sanitary District in October 2020. Overall, Other Revenue is $128,134 less than the amount received in the previous year at this time. • Interest revenue is $134,911 less than last year at this time due to lower interest rates and lower cash balances. • Permits and Fees revenue is $189,500, or 15%, less than the amount received last year at this time. A decrease of $190,716 for ambulance billing fees accounts for this difference. • State revenue is $122,105 more than the amount received through MArch 2020. The increase is mainly a result of CARES Act revenue intended to offset expenditures incurred as a result of the COVID 19 emergency.

Overall, revenues are consistent with the revised budget.

Expenditures:

Expenditures as of March 31, 2021 are at approximately 72% of budget as compared with 77% of total expenditures as of March 31, 2020. Expenditures are $2,477,421 less than last year at this time.

Salaries are $240,095 greater than last year at this time. The difference is mainly due to a 2% increase in the salary schedule, as well as scheduled step increases.

Retirement expenditures are $1,964,354 less than at the same time in the previous year. $956,000 of the difference is due to the fact that in the previous year the Town contributed this amount to its

2 pension trust in December 2019, and also contributed an additional $1 million to the trust in January 2020; no payment to the trust has been made or has been budgeted in the current year.

Expenditures for retiree health benefits are $290,828 less than at the same time last year. This is primarily because the Town contributed $250,000 to its OPEB trust in December 2019; no payment to this trust has been made or has been budgeted in the current year. Also, fewer retirees are receiving benefits than at the same time last year.

Retirement expenditures are at 94% of budget due to the unfunded liability payment in the amount of $1,324,259 being paid to CalPERS in July 2020 as required. Non departmental expenditures are at 87% of budgeted expenditures due to annual payments for the Town’s participation in various JPAs being made a the beginning of the fiscal year.

Overall, expenditures are as expected and in accordance with the budget.

FISCAL IMPACT:

There is no fiscal impact associated with this report.

ENVIRONMENTAL IMPACT:

This activity is not defined as a project under CEQA (Section 15378 CEQA Guidelines).

OPTIONS:

1. Approve the Revenue and Expenditure Report as presented. 2. Direct staff to make changes to the report. 3. Take no action at this time.

ATTACHMENTS:

1. Attachment 1 – Budget Report by Category for the Period Ending March 31, 2021. 2. Attachment 2 – Budget Report by Department for the Period Ending March 31, 2021.

THIS ITEM HAS BEEN REVIEWED AND APPROVED BY THE TOWN MANAGER.

3 ATTACHMENT 1

Budget Report By Category

4 Corte Madera, CA Budget Comparison Report

2019‐2020 2019‐2020 Percentage 2020‐2021 2020‐2021 Percentage Total Activity YTD Activity Recevided / Revised YTD Activity Recevided / Through Expended Budget Through Expended March 2020 March 2021

Subcategory Fund: 01 ‐ GENERAL FUND Revenue 400 ‐ PROPERTY TAX 6,982,402 3,876,681 55.52% 7,113,333 4,026,033 56.60% 410 ‐ SALES TAX 6,349,011 4,485,452 70.65% 5,542,874 4,137,121 74.64% 411 ‐ BUSINESS LICENSE 603,550 584,060 96.77% 600,000 516,018 86.00% 412 ‐ PARAMEDIC TAX 503,686 258,030 51.23% 478,833 271,651 56.73% 413 ‐ TRANSIENT OCCUPANCY TAX 909,753 789,964 86.83% 520,232 288,472 55.45% 414 ‐ PROPERTY TRANSFER TAX 108,424 88,822 81.92% 100,000 112,514 112.51% 420 ‐ FRANCHISE FEES 1,241,581 544,413 43.85% 1,224,192 492,338 40.22% 430 ‐ PERMITS AND FEES 1,588,048 1,279,736 80.59% 1,505,000 1,091,236 72.51% 431 ‐ COST RECOVERY 83,235 61,574 73.98% 131,000 49,977 38.15% 440 ‐ FINES 53,544 39,726 74.19% 45,000 22,648 50.33% 450 ‐ LEASES 22,067 18,701 84.75% 22,800 19,857 87.09% 451 ‐ RENTS 359,250 349,125 97.18% 360,000 349,200 97.00% 452 ‐ INTEREST 332,189 185,004 55.69% 130,000 50,093 38.53% 460 ‐ STATE REVENUE 120,902 84,444 69.84% 101,977 206,549 202.54% 470 ‐ FEDERAL REVENUE 13,956 0 0.00% 0 0 0.00% 480 ‐ OTHER LOCAL AGENCY REVENUE 92,650 92,650 100.00% 95,000 80,242 84.47% 490 ‐ OTHER REVENUE 1,190,483 6,924 0.58% 898,087 ‐121,210 ‐13.50% 510 ‐ TRANSFERS IN 182,018 0 0.00% 279,685 0 0.00% Total Revenue: 20,736,748 12,745,306 61.46% 19,148,013 11,592,739 60.54%

Expense 600 ‐ SALARIES 3,405,832 2,469,353 72.50% 3,665,953 2,709,448 73.91% 601 ‐ RETIREMENT 3,582,049 3,515,524 98.14% 1,656,013 1,551,170 93.67% 602 ‐ OTHER BENEFITS 720,583 529,176 73.44% 845,224 547,287 64.75% 603 ‐ RETIREE BENEFITS 737,649 652,885 88.51% 550,000 362,057 65.83% 611 ‐ OUTSIDE SERVICES 10,538,138 7,877,119 74.75% 10,164,013 7,691,750 75.68% 612 ‐ TRAINING, EDUCATION, MEETINGS 20,648 18,789 91.00% 42,200 5,914 14.01% 613 ‐ DUES AND SUBSCRIPTIONS 13,111 12,917 98.52% 12,600 11,561 91.75% 614 ‐ EQUIPMENT MAINTENANCE 317,362 253,037 79.73% 326,600 248,749 76.16% 615 ‐ BUILDING AND GROUNDS 215,062 161,876 75.27% 195,000 61,617 31.60% MAINTENANCE 616 ‐ VEHICLE MAINTENANCE 8,341 7,648 91.69% 21,000 4,469 21.28% 618 ‐ OTHER MAINTENANCE AND REPAIRS 23,752 17,328 72.96% 35,000 18,819 53.77% 619 ‐ EQUIPMENT RENTAL 3,230 1,262 39.07% 6,000 3,459 57.65% 620 ‐ UTILITIES 387,696 250,500 64.61% 410,100 196,443 47.90% 630 ‐ SUPPLIES 296,652 218,549 73.67% 295,300 181,527 61.47% 640 ‐ DEBT SERVICE 69,263 69,263 100.00% 69,262 64,158 92.63% 650 ‐ CAPITAL OUTLAY 47,619 0 0.00% 0 0 0.00% 670 ‐ TRANSFERS OUT 374,706 0 0.00% 591,988 0 0.00% 680 ‐ OTHER EXPENDITURES 153,207 132,890 86.74% 85,416 52,268 61.19% Total Expense: 20,914,898 16,188,116 77.40% 18,971,668 13,710,695 72.27%

Total Fund: 01 ‐ GENERAL FUND: ‐178,151 ‐3,442,810 176,345 ‐2,117,957 ATTACHMENT 2

Budget Report By Department

6 Corte Madera, CA Budget Comparison Report

2019‐2020 2019‐2020 Percentage 2020‐2021 2020‐2021 Percentage Total Activity YTD Activity Used / Revised YTD Activity Used / Through Expended Budget Through Expended March 2020 March 2021

Departme Fund: 01 ‐ GENERAL FUND 00 ‐ UNDESIGNATED 374,706 0 0.00% 591,988 0 0.00% 11 ‐ MAYOR AND COUNCIL 82,295 66,499 80.81% 105,400 43,369 41.15% 12 ‐ LEGAL 447,539 277,651 62.04% 310,000 242,959 78.37% 13 ‐ ADMINISTRATION 644,336 467,512 72.56% 707,137 509,176 72.01% 14 ‐ FINANCE 753,220 566,755 75.24% 859,359 574,106 66.81% 21 ‐ NON DEPARTMENTAL 4,881,086 4,652,565 95.32% 2,524,981 2,184,565 86.52% 30 ‐ FIRE DEPARTMENT 4,744,773 3,519,106 74.17% 4,727,810 3,556,914 75.23% 40 ‐ POLICE DEPARTMENT 3,717,848 2,806,665 75.49% 3,711,807 2,796,067 75.33% 45 ‐ DISASTER PREPAREDNESS 0 0 0.00% 0 191 0.00% 51 ‐ PLANNING AND BUILDING 2,252 412 18.31% 0 516 0.00% 52 ‐ PLANNING 767,800 551,937 71.89% 829,271 591,100 71.28% 53 ‐ BUILDING 700,780 492,056 70.22% 855,460 618,483 72.30% 73 ‐ ENGINEERING/PUBLIC WORKS 1,229,781 885,637 72.02% 1,099,682 880,444 80.06% ADMINISTRATION 74 ‐ STREETS AND PARKS ‐ PUBLIC 2,193,686 1,617,623 73.74% 2,242,302 1,502,289 67.00% WORKS 80 ‐ RECREATION ‐ GENERAL FUND 374,797 283,698 75.69% 406,471 210,519 51.79% Total Fund: 01 ‐ GENERAL FUND: 20,914,898 16,188,116 77.40% 18,971,668 13,710,695 72.27%

CORTE MADERA TOWN COUNCIL STAFF REPORT

REPORT DATE: April 1, 2021 MEETING DATE: April 20, 2021

TO: Honorable Mayor and Members of the Town Council

FROM: Daria Carrillo, Finance Director

SUBJECT: Accounts Payable Warrants, March 2021

       

RECOMMENDED ACTION:

Acknowledge and file the following: 1) warrants 225037 to 225235 totaling $1,215,549.36, and 2) transfers to the payroll account totaling $449,676.26.

BACKGROUND/DISCUSSION:

The attached Check Report, Attachment 1, was produced from the Town’s financial system. It includes all warrants issued from the Bank of Marin operating account during the month of March 2021. Warrants issued on behalf of Central Marin Fire Authority are not included. A separate Check Report will be presented to the Central Marin Fire Authority Council.

In addition to the Bank of Marin operating account, the Town maintains a payroll account at Bank of Marin. The payroll account is a controlled account for payroll transactions only. All payroll related items will be paid from the payroll account. Nearly all of the transactions, including direct deposit payments to employees, state and federal tax payments, and CalPERS payments for retirement and for medical payments, are made electronically. Also paid through this account are reimbursements for retiree health insurance.

In March 2021, the Town transferred $449,676.26 from the operating account to the payroll account for payroll and payroll related expenditures. This does not include transfers made for Central Marin Fire Authority payroll; those transfers will be included on a separate report to the Central Marin Fire Authority Council.

FISCAL IMPACT:

None.

1 4.F. ENVIRONMENTAL IMPACT:

This activity is not defined as a project under CEQA (Section 15378 CEQA Guidelines).

OPTIONS:

1. Approve the warrant listing as presented. 2. Take no action at this time.

ATTACHMENTS:

1. Attachment 1 – Check Report, March 2021

THIS ITEM HAS BEEN REVIEWED AND APPROVED BY THE TOWN MANAGER.

ATTACHMENT 1

Check Report, March 2021

1 MINUTES OF APRIL 6, 2021 2 REGULAR MEETING 3 OF THE 4 CORTE MADERA TOWN COUNCIL 5 VIA VIDEOCONFERENCE ONLY 6 7 Meeting video available here 8 9 NOTICE TO PUBLIC: 10 Due to Coronavirus (COVID-19), the April 6, 2021, Regular Town Council meeting will occur via 11 videoconference only. All Councilmembers will be participating remotely, and residents are urged to follow 12 the orders issued by the Marin County Public Health Officer and Governor and participate in the meeting 13 remotely as well. As allowed under the Governor’s Executive Order N-29-20 (March 17, 2020), during the 14 duration of the COVID emergency the Town of Corte Madera will no longer offer an in-person meeting 15 location for the public to attend. 16 17 Members of the public may view and participate in the meeting remotely through the following link: 18 https://tinyurl.com/y7aw8ubu 19 (No Pre-Registration Needed- Click on Link at Meeting Start Time) 20 You may call in using: 1 (408) 638-0968 (Zoom webinar ID: 914-5144-0692) 21 Or iPhone one-tap: +14086380968,,91451440692# 22 23 How to submit public comment remotely: 24 1. Email [email protected] prior to 5:00 P.M. on the day of the meeting. 25 2. Email [email protected] during the meeting. 26 3. Join the meeting using the link above and select the “Raise Hand” icon during the meeting, or press 27 *9 to add yourself to the speaker queue if calling in to the meeting. 28 29 Anyone with a disability needing further assistance with public comment should contact the Clerk at least 2 30 hours before the beginning of the meeting to make alternative arrangements at [email protected] or 31 415-927-5050. Click here for more information on how to watch the meeting and submit public comment 32 remotely. Meeting video available here. 33 34 Mayor Beckman called the Special Meeting of the Town Council to order at Town Hall Council 35 Chambers, 300 Tamalpais Drive, Corte Madera, CA on April 6, 2021 at 6:32pm. 36 37 Councilmembers Present: Mayor Beckman; Councilmembers Casissa, Lee, Ravasio 38 Councilmember Mongan was seated and joined the Council 39 following administration of the Oath of Office 40 41 Councilmembers Absent: None 42 43 Staff Present: Town Manager Todd Cusimano 44 Town Clerk/Assistant Town Manager Rebecca Vaughn 45 Interim Town Attorney Amy Ackerman 46 Finance Director Daria Carrillo 47 48 49 1. CALL TO ORDER, ROLL CALL AND SALUTE TO THE FLAG 50 51 2. OPEN TIME FOR PUBLIC COMMENT 52 53 Emailed public comment was received from 1 individual: 54 • Roy Wolford 55 56 Council received public comment from 2 individuals: 57 • Roy Wolford (also submitted public comment via email)

4.G.

1 • Lucy MacPherson 2 3 3. OATH OF OFFICE 4 A. The Town Clerk will administer the Oath of Office to Appointed Councilmember, Leila 5 Mongan 6 7 The Town Clerk administered the Oath of Office to Appointed Councilmember, Leila Mongan. 8 9 Councilmember Mongan was welcomed to the Council and provided a brief statement. 10 11 Mayor Beckman asked if there were public comments on this item. No public comment was 12 received regarding this item. 13 14 Mayor Beckman asked that the record reflect that following the administration of the Oath of 15 Office, all five current Corte Madera Town Council members are present. 16 17 4. SELECTION OF VICE MAYOR 18 A. The Council will select a Vice Mayor, who will serve in that capacity through the next 19 reorganization of the Town Council, which would be scheduled to take place at the 20 December 7, 2021 meeting, should the Ordinance to move Town Council elections 21 to November of even years be adopted at the April 6 Town Council meeting. 22 23 MOTION: It was M/S/C (Beckman/Ravasio) to select Councilmember Fred Casissa as Vice 24 Mayor. 25 26 Roll call vote: 5-0 in favor of the motion. 27 28 5. PRESENTATIONS 29 A. Recognition of outgoing member of the Town Council, David Kunhardt, in 30 acknowledgement of his service to the Town of Corte Madera 31 32 Town Manager Cusimano and Councilmembers provided brief farewells to David Kunhardt. 33 34 Mayor Beckman asked if there were public comments on this item. 35 36 Emailed public comment was received from 1 individual: 37 • Dorsey McTaggart 38 39 Council received public comment from 1 individual: 40 • Suzi Beattie 41 42 43 B. Presentation by Carrie Pollard, Water Conservation Manager for Marin Municipal 44 Water District, on Drought and Water Conservation in Marin County 45 46 Carrie Pollard provided the presentation on water conservation in Marin. She then answered 47 questions from the Council. 48 49 Emailed public comment was received from 1 individual: 50 • Roy Wolford

April 6, 2021 Corte Madera Town Council Regular Meeting Minutes 2

1 2 Council received public comment from 1 individual: 3 • Roy Wolford (also provided his comment via email) 4 5 The full presentation can be viewed here: https://youtu.be/M5BkjGu4mOw?t=1660 6 7 6. CONSENT CALENDAR 8 9 Mayor Beckman asked if there were public comments or requests from the public for removal of 10 items from the Consent Calendar. 11 12 Anita Renzetti, a member of the public, requested to pull item 6.C. from the Consent Calendar 13 to allow for public comment. 14 15 Mayor Beckman asked if there were additional requests from the public for removal of items 16 from the Consent Calendar. 17 18 No additional requests were made or received. 19 20 Mayor Beckman then called for a vote on the balance of the Consent Calendar 6A, 6B, and 6D- 21 6G. 22 23 MOTION: It was M/S/C (Casissa/Ravasio) to approve Consent Calendar items 6A, 6B, and 6D- 24 6G. 25 26 Roll call vote: 5-0 in favor of the motion. 27 28 The approved Consent Calendar consisted of the following items: 6.A. Waive Further Reading and Authorize Introduction and/or Adoption of Resolutions and Ordinances by Title Only (Standard procedural action – no backup information provided) 6.B. Second Reading and Possible Adoption of Ordinance No. 1005 Amending Title 2 Chapter 2.38 Of The Town of Corte Madera Municipal Code, “General Municipal Elections” to (1) Change the Town of Corte Madera’s Municipal Elections from “Statewide Direct Primary” to “Statewide General Election” and (2) Cancel the Election Currently Scheduled for June, 2022, to Elect 3 Councilmembers to Four Year Terms, and Move the Election to the Next Statewide General Election, Scheduled for November 8, 2022, Resulting In An Extension Of The Current Council Terms of Five Months for Councilmembers Elected in June 2018, and Eight Months for Councilmembers elected in March, 2020 6.D. Authorize the Public Works Director to Execute and Record the Notice of Completion for the Redwood Highway Pathway & Landscape Improvement Project, #16-001 and Release Retention to Ghilotti Bros., Inc. in the Amount of $47,232.41 6.E. Adopt Resolution No. 12/2021 in Support of Fair Housing Month 6.F. Adopt Resolution No. 13/2021 Establishing a Records Management Policy and Records Retention Schedule for the Town of Corte Madera

April 6, 2021 Corte Madera Town Council Regular Meeting Minutes 3

6.G. Approve Minutes of the March 16, 2021 Special Town Council Meeting 1 2 Regarding Item 6.C. 3 6.C. Consideration and Possible Adoption of Ordinance No. 1006 Amending 4 Sections 6.14.010, 6.14.020, 6.14.040, 6.14.070, 6.14.100, And Repealing Sections 5 6.14.050, 6.14.060, And 6.14.080 Of Chapter 6.14, Prohibiting Smoking In Public 6 Places, Places Of Employment, Other Areas, And Multi-Unit Housing, To (1) Amend 7 Definitions To Conform To The Definitions Used In State Law; (2) To Require 100 8 Percent Of All Multi-Unit Residential Properties To Be Smoke-Free By One Year After 9 The Enactment Of This Ordinance; (3) To Prohibit Smoking In Town Vehicles And (4) 10 To Prohibit Smoking Within 20 Feet Of A Building Or Road Construction Crew And 11 Amending Sections 6.16.030 And 6.16.040 Of Chapter 6.16, Tobacco Product Sales 12 Prohibited From Vending Machines, To Amend Definitions To Conform To The 13 Definitions Used In State Law And To Repeal Provisions That Duplicate State Law 14 15 Town Manager Cusimano went over the item and stated an amendment to address requests and 16 concerns from the community has been drafted by the Interim Town Attorney. Interim Town 17 Attorney Amy Ackerman confirmed and explained the process of re-introducing the ordinance. 18 Staff responded to questions from the Council and Mayor Beckman asked if there were public 19 comments on this item. 20 21 Council received public comment from 6 individuals: 22 • Anita Renzetti 23 • Xitlalli Pineda 24 • Jeremiah Mock 25 • Herminia Acosta 26 • Sayra Soriano on behalf of Emily Gallegos 27 • Pam Granger 28 29 Emailed public comment was received from 1 individual: 30 • Maydele Reyes 31 32 Mayor Beckman closed public comment. Following further deliberation, Mayor Beckman called 33 for a motion. 34 35 MOTION: It was M/S/C (Ravasio/Mongan) to reconsider the approval of the ordinance and 36 make the recommended changes to include a ban on smoking of medical cannabis. 37 38 Roll call vote: 5-0 in favor of the motion. 39 40 41 7. PUBLIC HEARINGS: None 42 43 8. BUSINESS ITEMS 44 A. Consideration and Possible Adoption of Resolution No. 14/2021, Approving a 45 Reserve Policy 46 47 Town Manager Cusimano introduced the item and also introduced Mike Meyer and Craig Hill of 48 NHA Advisors and the members of the Town’s Finance and Audit Ad Hoc Committee, James H.

April 6, 2021 Corte Madera Town Council Regular Meeting Minutes 4

1 Andrews, Annette DiSano, Larry Reed, and Karl Spurzem. Meyer, Hill, Andrews, Reed and 2 Spurzem were all present at the meeting and available to answer questions on this item. 3 4 Finance Director Daria Carrillo presented the staff report and answered questions from Council. 5 6 No public comments were received from attendees or via email on this item. 7 8 Mayor Beckman closed public comment. Following further deliberation, Mayor Beckman called 9 for a motion. 10 11 MOTION: It was M/S/C (Casissa/Ravasio) to Adopt Resolution No. 14/2021, Approving a 12 Reserve Policy 13 14 Roll call vote: 5-0 in favor of the motion. 15 16 17 B. Discussion Regarding 2021 Pension Obligation Bonds – Restructure Options and 18 Process Update. Council Will Receive Presentation Related To Pension Obligation 19 Bonds Process Undertaken, Results Of Stress Testing Analysis, And Will Provide 20 Direction For Staff Regarding Recommended Structuring Option (This will be a two 21 meeting process) 22 23 Town Manager Cusimano introduced the item. Mike Meyers and Craig Hill of NHA Advisors 24 provided a presentation on the item. James H. Andrews, Larry Reed, and Karl Spurzem of the 25 Town’s Finance and Audit Ad Hoc Committee provided their viewpoints on the presentation. 26 The presenters answered questions from Council. 27 28 No public comments were received from attendees or via email on this item. 29 30 Mayor Beckman closed public comment. Following further deliberation, Mayor Beckman closed 31 the discussion and noted that the direction from Council was to move forward with the 32 recommendations on this item and a final approval would be made at the next meeting. 33 34 35 C. Discussion and Possible Action By the Mayor to Appoint Council Members to Fill 36 Vacancies On Joint Powers Authority Boards and Town Committees 37 38 39 Assistant Town Manager/Town Clerk Rebecca Vaughn presented the staff report and answered 40 questions from Council. 41 42 Council received public comment from 1 individual: 43 • Karen Gerbosi 44 45 Mayor Beckman closed public comment. Following further deliberation, Mayor Beckman closed 46 the discussion and summarized the changes. 47 48 49 9. TOWN MANAGER AND COUNCIL REPORTS 50

April 6, 2021 Corte Madera Town Council Regular Meeting Minutes 5

1 Town Manager Report: 2 Town Manager Cusimano announced the Park Plaza will receive some new improvements. He 3 also went over the tier structures and how Corte Madera will be affected. Additionally, Cusimano 4 gave a brief update on the Climate Adaptation Plan and the work that is being done to address 5 the public comments that were received from residents in the community. Cusimano reported 6 that he is still working on the matter of the relocation of the post office and its operations. Lastly, 7 he stated a new recommendation on the Town Hall Project is going to be brought to Council the 8 first meeting in May. 9 10 Town Council Reports: 11 Councilmember Casissa: He attended the Casa Buena Steering Committee Meeting and 12 announced that a workshop will be held on April 19th. Information on this workshop can be found 13 on the Town’s website. He also announced attending the Age-Friendly Corte Madera Meeting 14 and the Sales Tax Citizens’ Oversight Committee Meeting. Additionally, he attended the MCCMC 15 Economic Recovery Meeting. 16 17 Councilmember Lee: He attended the Transportation Authority of Marin (TAM) meeting and gave 18 a brief report on the proposal submitted to the Metropolitan Transportation Commission (MTC) 19 regarding streetlights. 20 21 Councilmember Ravasio: He attended the County Homeless Committee Meeting where there 22 were discussions on the Homekey project and showers for the homeless. He also participated in 23 the Special Meetings for the Central Marin Police Council and Central Marin Fire Council. 24 25 Mayor Beckman: He announced the Central Marin Sanitation Agency is scheduling a strategic 26 planning meeting. He also attended meetings for the Central Marin Police Council, Central Marin 27 Fire Council, Marin Clean Energy Board and Corte Madera Chamber of Commerce. At the 28 Chamber of Commerce meeting, discussion was held on assisting local businesses and 29 incentivizing shopping local. He also attended the MCCMC Economic Recovery meeting and the 30 MCCMC Legislative Committee meeting. He reported attending a Legislative Committee Meeting 31 through the League of Cities where discussions on the American Rescue Plan and the Biden 32 Infrastructure Bill were held. Lastly, he attended a meeting with Senator Bill Dodd regarding his 33 5G bill and stated the League of Cities is recommending opposition to the current draft of the bill. 34 35 Council received public comment from 1 individual: 36 • Roy Wolford 37 38 39 10. DISCUSSION OF DRAFT AGENDA FOR UPCOMING TOWN COUNCIL MEETING 40 41 Assistant Town Manager/Town Clerk Rebecca Vaughn announced that the updated draft of the 42 smoking ordinance would be brought back to council at the upcoming meeting. 43 44 11. CLOSED SESSION 45 46 A. Public comment regarding Closed Session Item: 47 48 CONFERENCE WITH LABOR NEGOTIATOR 49 Closed Session Pursuant to Cal. Gov’t Code Section 54957.6 50 Agency Designated Representative: Todd Cusimano, Town Manager

April 6, 2021 Corte Madera Town Council Regular Meeting Minutes 6

1 Employee Organizations: Department Heads, Mid-Management Group and SEIU 1021 2 3 No public comments were received from attendees or via email on this item. 4 5 Mayor Beckman closed public comment. 6 7 B. Adjourn to Closed Session 8 9 Council recessed to Closed Session at 9:11pm 10 11 C. Report out of Closed Session 12 13 The closed Session ended at 9:35pm and the Town Council rejoined for the regular meeting. 14 Mayor Beckman announced that there was no reportable action taken. 15 16 12. ADJOURNMENT 17 18 The meeting was adjourned at 9:37pm to the next regular Town Council Meeting on Tuesday, 19 April 20, 2021 via videoconference. 20 21 22 23 24 25 26 27 28 29 30 31

April 6, 2021 Corte Madera Town Council Regular Meeting Minutes 7

CORTE MADERA TOWN COUNCIL STAFF REPORT

REPORT DATE: April 14, 2021 MEETING DATE: April 20, 2021

TO: Honorable Mayor and Members of the Town Council

FROM: Rebecca Vaughn, Town Clerk/Assistant Town Manager

SUBJECT: Introduction of Ordinance No. 1006 Amending Sections 6.14.010, 6.14.020, 6.14.040, 6.14.070, 6.14.100, And Repealing Sections 6.14.050, 6.14.060, And 6.14.080 Of Chapter 6.14, Prohibiting Smoking In Public Places, Places Of Employment, Other Areas, And Multi-Unit Housing, To (1) Amend Definitions To Conform To The Definitions Used In State Law; (2) To Require 100 Percent Of All Multi-Unit Residential Properties To Be Smoke-Free By One Year After The Enactment Of This Ordinance; (3) To Prohibit Smoking In Town Vehicles And (4) To Prohibit Smoking Within 20 Feet Of A Building Or Road Construction Crew; (5) Prohibit All Smoking Of Cannabis, Including For Medical Purposes In All Units Of Multi-Unit Properties; (6) Allow For Enforcement Of The Ordinance By Administrative Citation; And Amending Sections 6.16.030 And 6.16.040 Of Chapter 6.16 To Amend Definitions To Conform To The Definitions Used In State Law And To Repeal Provisions That Duplicate State Law

       

RECOMMENDED ACTION:

Staff recommends that the Town Council introduce Ordinance No. 1006 amending various sections of Chapter 6.14, Prohibiting Smoking In Public Places, Places Of Employment, Other Areas, And Multi-Unit Housing, including prohibiting all smoking of cannabis, including for medical purposes in all units of multi-unit properties, and Chapter 6.16, Tobacco Products Sales Prohibited From Vending Machines, of the Corte Madera Municipal Code, and waive further reading.

Ordinance No. 1006 as presented in Attachment 1, would amend Sections 6.14.010, 6.14.020, 6.14.040, 6.14.070, 6.14.100, and repeal sections 6.14.050, 6.14.060, and 6.14.080 of chapter 6.14 to (1) amend definitions to conform to the definitions used in state law; (2) to require 100 percent of all multi-unit residential properties to be smoke-free by one year after the enactment of this ordinance; (3) to prohibit smoking in town vehicles and (4) to prohibit smoking within 20 feet of a building or road construction crew, (5) prohibit all smoking of cannabis, including for medical purposes in all units of multi-unit properties; (6) allow for enforcement of the ordinance by administrative citation; and amending sections 6.16.030 and 6.16.040 of chapter 6.16 to amend definitions to conform to the definitions used in state law and to repeal provisions that duplicate state law.

1 5.A. BACKGROUND:

The Town Council reviewed Ordinance No. 1006 for second reading and possible adoption at its April 6, 2021 meeting. Ordinance No. 1006 would require 100 percent of all rental and owned units in multi-unit residential housing to be smoke-free by one year after the enactment of this ordinance, The ordinance currently in effect, adopted in 2014, prohibits smoking in 80% of multi-unit housing units.

After publication of the April 6th Town Council agenda, Council received public comment from concerned community members requesting that the Town revisit the Ordinance and consider removing the exemption for smoking of cannabis for medical purposes. Public comment provided by virtual attendees at the April 6th meeting can be heard here. Written public comment submitted can be viewed here. The links to the staff report and attachments for the April 6, 2021 meeting, as well as the March 2, 2021 meeting where the Ordinance was originally introduced, are included in Attachment 2.

DISCUSSION:

At its April 6, 2021 meeting, following receipt of public comment and discussion of the item, Council voted 5-0 to reconsider their approval of the ordinance and directed staff to revise the ordinance to remove the exemption in Section 6.14.110 that allowed smoking of cannabis for medical purposes. At this time a number of jurisdictions in Marin County, including Novato, Mill Valley and San Anselmo, do not permit smoking of cannabis, whether for medical purposes or otherwise, in a unit in multi-unit housing.

Draft Ordinance 1006, included with this report as Attachment 1, no longer includes paragraph B of section 6.14.110 – Smoking and smoke generally, which originally read as follows: B. Notwithstanding any other provision of this chapter, smoking cannabis for medical purposes as permitted by California Health and Safety Code Sections 11362.7 et seq. is not prohibited by this chapter. This revision is noted in redlined strike-through text on page 13 of Attachment 1.

In addition, draft Ordinance 1006 now includes a new paragraph in section 6.14.130 – Penalties and enforcement: allowing for administrative penalties: B. Administrative Penalties. Any person violating any of the provisions or failing to comply with any of the requirements of this code shall be subject to administrative citation and penalties as set forth in Chapter 9.05 of Title 9 of this code. This addition is noted in redlined text on page 13 of Attachment 1.

A public notice announcing the public hearing for this ordinance was published on Friday, April 9, 2021, in the Town’s newsletter, on NextDoor and on Facebook. The notice was also mailed and emailed to Home Owners Associations and managers and/or owners of apartment buildings and multiple unit dwellings such as duplex/triplexes, etc., where the Town had available contact information. The notice of public hearing is included with this report as Attachment 3, and can be viewed here.

2 FISCAL IMPACT:

The fiscal impact associated with adoption of this Ordinance is estimated at $10,000 in the first year and $10,000-$15,000 in future years. The first year estimate is primarily related to costs associated with educational and compliance outreach and guidance sent to property managers, homeowners associations and other community stakeholders. Future estimated cost is amount may fluctuate depending upon the number of calls to the Town for code enforcement and investigation and follow up on notices of potential violations.

ENVIRONMENTAL IMPACT:

This activity is not defined as a project under CEQA (Section 15378 CEQA Guidelines).

OPTIONS:

1. Waive first reading and introduce Ordinance No. 1006 as presented. 2. Propose modifications to the draft ordinance and direct staff to return for introduction at a later date. 3. Do not introduce Ordinance and provide further direction to staff.

ATTACHMENTS:

1. Draft Ordinance No. 1006 2. Links to the staff reports and attachments from the April 6, 2021 and March 2, 2021 Town Council meetings 3. Notice of Public Hearing, published April 9, 2021

THIS ITEM HAS BEEN REVIEWED AND APPROVED BY THE TOWN MANAGER.

ATTACHMENT 1

Draft Ordinance No. 1006

ORDINANCE No. ______

AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF CORTE MADERA AMENDING SECTIONS 6.14.010, 6.14.020, 6.14.040, 6.14.070, 6.14.100, 6.14.110, 6.14.110 AND REPEALING SECTIONS 6.14.050, 6.14.060, AND 6.14.080 OF CHAPTER 6.14 TO (1) AMEND DEFINITIONS TO CONFORM TO THE DEFINITIONS USED IN STATE LAW; (2) TO REQUIRE 100 PERCENT OF ALL UNITS IN MULTI-UNIT RESIDENTIAL PROPERTIES TO BE SMOKE-FREE BY ONE YEAR AFTER THE ENACTMENT OF THIS ORDINANCE; (3) PROHIBIT SMOKING IN TOWN VEHICLES (4) PROHIBIT SMOKING WITHIN 20 FEET OF A BUILDING OR ROAD CONSTRUCTION CREW; (5) PROHIBIT ALL SMOKING OF CANNABIS, INCLUDING FOR MEDICAL PURPOSES IN ALL UNITS OF MULTI-UNIT PROPERTIES; (6) ALLOW FOR ENFORCEMENT OF THE ORDINANCE BY ADMINISTRATIVE CITATION; AND AMENDING SECTIONS 6.16.030 AND 6.16.040 OF CHAPTER 6.16 TO AMEND DEFINITIONS TO CONFORM TO THE DEFINITIONS USED IN STATE LAW AND TO REPEAL PROVISIONS THAT DUPLICATE STATE LAW.

NOTE: Unchanged Code text and uncodified text are in plain Arial font. Additions to Code text are in red underlined text. Deletion to Code text are in red strikethrough font. Asterisks indicate the omission of unchanged Code sections.

WHEREAS, an estimated 28% of Californians (or 7.3 million people) live in multiunit housing; WHEREAS, about 25% of Corte Madera’s housing stock is multifamily dwellings; WHEREAS, the U.S. Surgeon General has concluded that eliminating smoking in indoor spaces is the only way to fully protect nonsmokers from secondhand smoke exposure; and that separating smokers from nonsmokers, cleaning the air, and ventilating buildings cannot completely prevent secondhand smoke exposure; WHEREAS, secondhand smoke exposure occurs more often in multiunit housing compared to separate, single-unit housing and therefore contributes to tobacco-related health inequities; and, WHEREAS, smoking is a leading cause of fire-related injury and death,4 and contributes to health inequities, as evidenced by the following:

◆ During 2012–2016, U.S. fire departments responded to an estimated 18,100 smoking- related structure fires, which resulted in an estimated 1,130 injuries, 590 deaths, and $476 million in direct property damage;

◆ During 2012–2016, smoking materials caused 5% of reported home fires, 23% of home fire deaths, 10% of home fire injuries, and 7% of the direct property damage from home fires;

◆ Elderly people 85 or older have the highest fire death rate, and the risk of dying from smoking-related fires increases with age;

WHEREAS, more than 140 California cities and counties have adopted smoke-free multiunit housing ordinances; WHEREAS, in 2014 the Town prohibited smoking in 80% of multiunit housing units, with the recognition that the prohibition would be phased up to 100% of units, and it is now time to implement the 100% prohibition to maintain consistency with many other jurisdictions in Marin County that have already implemented a 100% prohibition; WHEREAS, Congress has adopted legislation amending the Federal Food, Drug, and Cosmetic Act (21 USCA § 387f(d)(5)) to raise the age of sale of tobacco from 18 to 21 years, requiring an update of several sections of the Municipal Code; and WHEREAS, state laws regarding smoking and tobacco use have changed since the Town adopted Chapters 6.14 and 6.16, necessitating changes to Chapter 6.14 to conform to state law; NOW THEREFORE, it is the intent of the Town of Corte Madera in enacting this ordinance, to provide for the public health, safety, and welfare by discouraging the inherently dangerous behavior of smoking around nontobacco users; by protecting children from exposure to smoking where they live and play; and by protecting the public from nonconsensual exposure to secondhand smoke in and around their homes.

THE TOWN COUNCIL OF THE TOWN OF CORTE MADERA DOES ORDAIN AS FOLLOWS: Section One. Chapter 6.14 of Title 6 of the Corte Madera Municipal Code is hereby amended to read as set forth below: Chapter 6.14 - PROHIBITING SMOKING IN PUBLIC PLACES, PLACES OF EMPLOYMENT, OTHER AREAS, AND MULTI-UNIT HOUSING 6.14.010 - Definitions.

A. The following words and phrases, whenever used in this chapter, shall be construed as defined in this section: 1. "Business" means any sole proprietorship, partnership, joint venture, corporation or other business entity formed for profit-making purposes. 2. "Town" shall mean the town of Corte Madera. 3. "Common area" means every area of a multi-unit residence that residents of more than one unit of that multi-unit residence are entitled to enter or use, including, but not limited to for example, halls and paths, lobbies and courtyards, elevators and stairs, community rooms and playgrounds, gym facilities and swimming pools, parking garages and parking lots, shared restrooms, shared laundry rooms, shared cooking areas, and shared eating areas. 4."Common interest complex" means a multi-unit residence that is a condominium project, a community apartment project, a stock cooperative, or a planned development as defined by California Civil Code section 1351. 5."Dining area" means any area, including streets and sidewalks, which is available to or customarily used by the general public or an employee, and which is designed, established, or regularly used for consuming food or drink.

56."Electronic smoking device" shall mean an electronic or battery operated device that delivers vapors for inhalation. This term shall include every variation and type of such devices whether they are manufactured, distributed, marketed or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah or any other product name or descriptor. 47."Employee" means any person who is employed or retained as an independent contractor by any employer or nonprofit entity in consideration for direct or indirect monetary wages or profit, or any person who volunteers his or her services for an employer or nonprofit entity. 58."Employer" means any business, the town, or nonprofit entity that retains the services of one or more employees. 69."Enclosed area" means all space between a floor and ceiling which is enclosed on all sides by solid walls or windows (exclusive of door or passage ways) which extend from the floor to the ceiling, including all space therein screened by portions which do not extend to the ceiling or are not solid, such as "office landscaping" or similar structures. 710."Landlord" means any person who owns property let for residential use, any person who lets residential property, and any person who manages such property, except that "landlord" does not include a master tenant who sublets a unit as long as the master tenant sublets only a single unit of a multi-unit residence. 811."Multi-unit residence" means property containing two or more units with a shared wall, including for example, rental complexes, residential cooperatives or condominium complexes, common interest complexes, senior citizen residences, assisted living complexes, and skilled nursing facilitiesand nursing homes. "Mmulti- unit residence does not include the following specifically excluded types of housing: a. Aa hotel or motel that meets the requirements set forth in California Civil Code section 1940(b)(2); b. A mobile home park; c. A campground; d. A marina or port; e. A single-family home; and f. A single-family home with a detached or attached in-law or accessory dwelling second unit when permitted pursuant to California Government Code sections 65852.1, 65852.150, 65852.2 or Chapter 18.31 of this Code. 12."New unit" means a unit that is issued a certificate of occupancy more than one hundred eighty days after June 5, 2014 and also means a unit that is let for residential use for the first time more than one hundred eighty days after June 5, 2014. 913."Nonprofit entity" means any corporation, unincorporated association or other entity created for charitable, philanthropic, educational, character-building, political, social or other similar purposes, the net proceeds from the operations of which are

committed to the promotion of the objectives or purposes of the entity and not to private gain. A public agency is not a "nonprofit entity" within the meaning of this section. 10."Outdoor dining area" means any area, including streets and sidewalks, which is available to or customarily used by the general public or an employee, and which is designed, established, or regularly used for consuming food or drink. 1114."Person" means any individual, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or any other legal entity. 1215."Place of employment" means any area under the legal or de facto control of an employer that an employee or the general public may have cause to enter in the normal course of operation, regardless of the hours of operation, including, but not limited to, indoor and outdoor work areas, construction sites, vehicles used in employment or for business purposes, taxis, employee lounges and restrooms, conference and banquet rooms, employee cafeterias, warehouses, long-term health care facilities, and lobbies and hallways. A private residence is not a "place of employment" unless it is used as a child care or health care facility. 1316."Public place" means any place, publicly or privately owned, which is open to the general public regardless of any fee or age requirement. 1417."Reasonable distance" means a distance of twenty feet in any direction from an area in which smoking is prohibited. 1518."Recreational area" means any area that is publicly or privately owned and open to the general public for recreational purposes, regardless of any fee or age requirement. The term "recreational area" includes, but is not limited to parks, picnic areas, playgrounds, sports fields, golf courses, walking paths, gardens, hiking trails, bike paths, horseback riding trails, swimming pools, roller- and ice-skating rinks, skateboard parks, amusement parks, and beaches. 19."Rental complex" means a multi-unit residence for which fifty percent or more of units are let by or on behalf of the same landlord. 1620."Retail tobacco store" means a retail store utilized primarily for the sale of tobacco products and accessories and in which the sale of other products is merely incidental. 1721."Service area" means any publicly or privately owned area, including streets and sidewalks, that is designed to be used or is regularly used by one or more Persons to wait for or receive a service or make a transaction, whether or not such service or transaction involves the exchange of money. The term "service area" includes, but is not limited to information kiosks, automatic teller machines (ATMs), ticket lines, bus stops or shelters, mobile vendor lines or cab stands. 1822."Smoke" means the gases and particles released into the air by combustion, electrical ignition or vaporization, including from an electronic smoking device, when the apparent or usual purpose of the combustion, electrical ignition or vaporization is human inhalation of the resulting gases, particles or vapors combustion products, such as, for example, tobacco smoke and cannabis smoke, except when the

combusting material contains no tobacco or cannabis and the purpose of inhalation is solely olfactory, such as, for example, smoke from incense. 1923."Smoking" means inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, or pipe, or any other lighted or heated tobacco or plant product intended for inhalation, whether natural or synthetic, in any manner or in any form. “Smoking” includes the use of an electronic smoking device that creates an aerosol or vapor, in any manner or in any form, or the use of any oral smoking device for the purpose of circumventing the prohibition of smoking. engaging in an act that generates smoke, such as, for example: possessing a lighted cigar, a lighted cigarette of any kind, a lighted pipe, or a lighted hookah pipe; or lighting a pipe, a hookah pipe, a cigar, or a cigarette of any kind; or operating an electronic smoking device. 2024."Tobacco product" means: a. any of the following: (1) A product containing, made, or derived, from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, or snuff. (2) An electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, pipe or hookah. (3) Any component, part, or accessory of a tobacco product, whether or not sold separately. b. “Tobacco product” does not include a product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where he product is marketed and sold solely for such an approved purpose.

any tobacco cigarette, cigar, pipe tobacco, smokeless tobacco, snuff or any other form of tobacco which may be utilized for smoking, chewing, inhalation or other manner of ingestion. 21.”Tobacco product waste” means any component, part, or remnant of any tobacco product. Tobacco product waste includes any waste that is produced from the use of a tobacco product, including all tobacco product packaging and incidental waste such as lighters or matches, whether or not it contains tobacco or nicotine. 2225."Tobacco retailer" means any person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco or This definition is without regard to the quantity of tobacco or tobacco products. 2326."Unenclosed area" means any area that is not an enclosed area.

2427."Unit" means a personal dwelling space, even where lacking cooking facilities or private plumbing facilities, and includes any associated exclusive-use enclosed area or unenclosed area, such as, for example, a private balcony, porch, deck, or patio. "Unit" includes, but is not limited to, an apartment; a condominium; a townhouse; a room in a long-term health care facility, assisted living facility, or hospital; a hotel or motel room; a room in a single room occupancy ("SRO") facility; a room in a homeless shelter; a mobile home; a camper vehicle or tent; a single-family home; and an in-law or accessory dwelling second unit. 2528."Cannabis" shall have the same meaning as set forth in Section 18.04.101 of the code. 6.14.020 - Prohibition of smoking in public places, places of employment, and certain other areas.

A. Enclosed areas. To the extent not already prohibited under federal or state law, sSmoking is shall be prohibited in the following enclosed areas within the Ttown of Corte Madera except in places listed in subsection C below, and except in such places in which smoking is already prohibited by state or federal law in which case the state or federal law applies: 1. Places of employment. 2. Public places. 3. Recreational areas. 4.Common areas. 5. Any vehicle owned, leased, or operated by the Town. B. Unenclosed areas. To the extent not already prohibited under federal or state law, Ssmoking is shall be prohibited in the following unenclosed areas within the Ttown of Corte Madera except in such places in which smoking is already prohibited by county, state, or federal law in which case that law applies: 1. Places of employment. 2. Recreational areas. 3. Service areas. 4. Outdoor dDining areas. 5. Common areas, provided that a person with legal control over a common area may designate a portion of the unenclosed area of the common area as a designated smoking area if the area meets all of the following criteria: a. The area must be located a reasonable distance from any unit or enclosed area where smoking is prohibited by this chapter or other law; by binding agreement relating to the ownership, occupancy, or use of real property; or by designation of a person with legal control over the property. In the case of a nonsmoking area created by agreement or designation, this provision does not apply unless the person designating the smoking area has actual knowledge of, or has been given notice of, the agreement or designation. A designated smoking area may require

modification or elimination as laws change, as binding agreements are created, and as nonsmoking areas on neighboring property are established. b. The area must not include, and must be a reasonable distance from, unenclosed areas primarily used by children and unenclosed areas with improvements that facilitate physical activity including, for example, playgrounds, tennis courts, swimming pools, and school campuses; c. The area must be no more than ten percent of the total unenclosed area of the multi-unit residence for which it is designated; d. The area must have a clearly marked perimeter; e. The area must be identified by conspicuous signs; f. The area must be completely within an unenclosed area; and g. The area must not overlap with any enclosed or unenclosed area in which smoking is otherwise prohibited by this chapter or other provisions of this Code, state law, or federal law. 6. Public events including, but not limited to, sports events, entertainment, speaking performances, ceremonies, pageants, fairs and farmer's markets. 7. Within twenty (20) feet of a working road or building and construction crew.

C. Unless otherwise prohibited by law, smoking is not prohibited in the following enclosed areas: 1. Smoking is not prohibited in up to twenty percent of guestroom accommodations in a hotel, motel, or similar transient lodging establishment if the hotel or motel permanently designates particular guestrooms as nonsmoking rooms such that eighty percent or more of guestrooms are permanently nonsmoking, and ashtrays and matches are permanently removed from such nonsmoking rooms. Permanent no smoking signage shall be posted in nonsmoking guestrooms. 2. Smoking at theatrical production sites is not prohibited by this subsection if smoking is an integral part of the story and the use of a fake, prop, or special effect can not reasonably convey the idea of smoking in an effective way to a reasonable member of the anticipated audience. 3. Smoking inside a retail tobacco store is not prohibited if: a. The retail tobacco store does not sell edible products, including, for example, food, water, or drinks, or allow such products to be consumed on the business premises; b. The retail tobacco store prohibits minors from entering the store at all times; and c. The premises of the retail tobacco store is an independent freestanding building unattached to any other structure or use. 4. Smoking inside a detached, single-family home is not prohibited, except when prohibited under state law. those used as a child care or health facility subject to licensing requirements.

D. Notwithstanding any other provisions of this section, nothing in this chapter prohibits any person, landlord, employer, or nonprofit entity with legal control over any property or facility from declaring the entire property or facility as nonsmoking and prohibiting smoking on any part of such property or facility, even if smoking is not otherwise prohibited in that area. * * * * *

6.14.040 - Smoking restrictions in new units of multi-unit residences. A. All units of a multi-unit residence for which a certificate of occupancy was issued after December 5, 2014 or was let for residential use for the first time after December 5, 2014 are hereby designated nonsmoking units. B. No later than ______, all units of a multi-unit residence for which a certificate of occupancy was issued before December 5, 2014 or was let for residential use for the first time before December 5, 2014 are hereby designated nonsmoking units. C.B. Smoking in a designated nonsmoking unit is a violation of chapter as provided in Section 6.14.100. D. At least one hundred and twenty days before ______, the landlord of a multi-unit rental complex shall provide each tenant with: 1. A written notice clearly stating that all units, including the tenant's unit, are designated nonsmoking units and that smoking in a unit will be illegal as of; and 2. A copy of this chapter. A. All new units of a multi-unit residence are hereby designated nonsmoking units, including any associated exclusive-use enclosed areas or unenclosed areas, such as, for example, a private balcony, porch, deck, or patio. B. Smoking in a designated nonsmoking unit is a violation of chapter as provided in Section 6.14.100.

6.14.050 - Nonsmoking designations for existing units of a common interest complex.

A. All units of a common interest complex that are not new units, including any associated exclusive-use enclosed areas or unenclosed areas, such as, for example, a private balcony, porch, deck, or patio, are hereby designated nonsmoking units as of June 5, 2015; provided, however, that a lesser percentage of units may be designated nonsmoking units if a common interest complex fully complies with subsection C below. B. Smoking in a designated nonsmoking unit is a violation of this chapter as provided in Section 6.14.100. C. By a vote of the membership as provided in subsection 1 below, a common interest complex may choose to designate fewer than one hundred percent of existing units as nonsmoking units by fully complying with the requirements stated in subsections 1—4 below. Otherwise subsection A above shall apply.

1. A vote by the membership on the threshold question of allowing less than one hundred percent of units to be designated nonsmoking units must take place before March 5, 2015. 2. Up to one hundred percent, but no less than eighty percent, of units that are not new units, including, for example, any associated exclusive-use enclosed areas or unenclosed areas, such as, for example, a private balcony, porch, deck, or patio, shall be permanently designated as nonsmoking units. 3. Where possible, best efforts shall be made to group nonsmoking units together, both horizontally and vertically, and physically separate them from units where smoking may be allowed. 4. No later than June 5, 2015 the final designations must be made and the following must be maintained in accordance with Section 6.14.090: a. A description of each designated nonsmoking unit sufficient to readily identify the unit; and b. A diagram depicting the location of the designated nonsmoking units in relation to all other units.

6.14.060 - Nonsmoking designations for existing units of a rental complex.

A. All units of a rental complex that are not new units, including any associated exclusive- use enclosed areas or unenclosed areas, such as, for example, a private balcony, porch, deck, or patio, are hereby designated nonsmoking units as of June 5, 2015, however, that a lesser percentage of units may be designated nonsmoking units if a landlord fully complies with subsection D below.

B. Smoking in a designated nonsmoking unit is a violation of this chapter as provided in Section 6.14.100.

C. Except if a landlord fully complies with subsection D below, at least one hundred and twenty days before June 5, 2015, the landlord shall provide each tenant with:

1. A written notice clearly stating that all units, including the tenant's unit, are designated nonsmoking units and that smoking in a unit will be illegal as of June 5, 2015; and

2. A copy of this chapter.

D. A landlord may choose to designate fewer than one hundred percent of existing units that are not new units of a rental complex as nonsmoking units by fully complying with the requirements stated in subsections 1—7 below. However, subsection A above shall apply whenever a landlord takes no action or only partially complies with the requirements of this subsection.

1.The landlord shall permanently designate up to one hundred percent of units, but no less than eighty percent of units, including, for example, any associated exclusive-use

9 enclosed areas or unenclosed areas, such as, for example, a private balcony, porch, deck, or patio, as nonsmoking units.

2.To the maximum extent practicable, nonsmoking units must be grouped together both horizontally and vertically and physically separated from units where smoking may be allowed. Where possible all units where smoking may be allowed shall be in a single building of a multi-building multi-unit residence.

3.No later than October 5, 2014, a landlord who chooses to designate fewer than one hundred percent of the units of a multi-unit residences as nonsmoking shall maintain the following in accordance with Section 6.14.090:

a. A description of each designated nonsmoking unit sufficient to identify the unit; and

b. A diagram depicting the location of the designated nonsmoking units in relation to all other units.

4.At least sixty days before maintaining the nonsmoking unit designations required by subsection 3 above, the landlord shall provide each tenant with:

a. A written notice of the proposed designations, clearly stating that smoking in a unit which is designated as a nonsmoking unit will be illegal as of June 5, 2015, and inviting comments on the proposed designations of nonsmoking units within the requisite timeline;

b. A diagram depicting the location of the designated nonsmoking units in relation to all other units; and

c. A copy of this chapter.

5. A landlord may modify the proposed designations based upon comments received from tenants.

6. At least thirty days before maintaining the final designations of nonsmoking units required by subsection 3 above, the landlord shall provide all tenants written notice of the final designations clearly stating that smoking in a designated nonsmoking unit will be illegal as of June 5, 2015 and a copy of the final documents that will be maintained pursuant to Section 6.14.090 of this chapter. These final designations may differ from the proposed designations on which tenants were invited to comment.

7. A unit in a rental complex for which a landlord is required to maintain information pursuant to Section 6.14.090 of this chapter but for which such information, for any reason, is not fully and timely maintained is hereby designated as a nonsmoking unit as of October 5, 2014.

6.14.070 - Required and implied lease terms for all new and existing units in rental complexes.

A. Every lease or other rental agreement for the occupancy of a unit in a rental complex, including, for example, new units and existing units, entered into, renewed, or continued month-to-month after June 5, 2014, shall include the provisions set forth in subsection B below on the earliest possible date when such an amendment is allowable by law when providing the minimum legal notice. B. Every lease or other rental agreement for the occupancy of a unit in a rental complex, including, for example, new units and existing units, entered into, renewed, or continued month-to-month after June 5, 2014 shall be amended to include the following provisions: 1. A clause providing that as of June 5, 2014, it is a material breach of the agreement to allow or engage in smoking in the unit unless the landlord has supplied written notice that the unit has not been designated a nonsmoking unit and no other prohibition against smoking applies. Such a clause might state, "It is a material breach of this agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to engage in smoking in the unit as of June 5, 2014 unless landlord has provided written notice that the unit has not been designated a nonsmoking unit and smoking in the unit is not otherwise prohibited by this agreement, other agreements, or by law." 2. A clause providing that it is a material breach of the agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to engage in smoking in any common area of the property other than a designated smoking area. Such a clause might state, "It is a material breach of this agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to engage in smoking in any common area of the property, except in an outdoor designated smoking area, if one exists." 3. A clause providing that it is a material breach of the agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to violate any law regulating smoking while anywhere on the property. Such a clause might state, "It is a material breach of this agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to violate any law regulating smoking while anywhere on the property. 4. A clause expressly conveying third-party beneficiary status to all occupants of the rental complex as to the smoking provisions of the agreement. Such a clause might state, "Other occupants of the property are express third-party beneficiaries of those provisions in this agreement that concern smoking. As such, other occupants of the property may seek to enforce such provisions by any lawful means, including by bringing a civil action in a court of law." C. Whether or not a landlord complies with subsections A and B above, the clauses required by those subsections shall be implied and incorporated by law into every agreement to which subsections A or B apply and shall become effective as of the

earliest possible date on which the landlord could have made the insertions pursuant to subsections A or B. D. A tenant who breaches a smoking provision of a lease or other rental agreement for the occupancy of a unit in a rental complex, or who knowingly permits any other person subject to the control of the tenant or present by invitation or permission of the tenant, shall be liable for the breach to: 1. The landlord; and 2. Any occupant of the rental complex who is exposed to smoke or who suffers damages as a result of the breach. E. This chapter shall not create additional liability in a landlord to any person for a tenant's breach of any smoking provision in a lease or other rental agreement for the occupancy of a unit in a rental complex if the landlord has fully complied with this section. and Section 6.14.060. F. Failure to enforce any smoking provision required by this chapter shall not affect the right to enforce such provision in the future, nor shall a waiver of any breach constitute a waiver of any subsequent breach or a waiver of the provision itself. 6.14.080 - Additional duties of a landlord of a rental complex with less than one hundred percent nonsmoking units. A landlord of a rental complex with less than one hundred percent nonsmoking units shall provide to every prospective tenant, prior to entering into a new lease or other rental agreement for the occupancy of a unit in a rental complex, a copy of the designation documents required pursuant to Section 6.14.060 describing each designated nonsmoking unit with an accompanying diagram depicting the location of nonsmoking units in relation to all other units and any designated smoking areas. * * * * * 6.14.100 - Smoking prohibited by law in units and common areas. A. Smoking in a common area, on or after June 5, 2014, other than in a designated smoking area established pursuant to Section 6.14.020(B)(5), is a violation of this chapter. B. Smoking in a new unit, on or after June 5, 2014, is a new unit, on or after June 5, 2014,violation of this chapter. C. Smoking in a designated nonsmoking unit, on or after June 5, 2015, is a violation of this chapter. 6.14.110 - Smoking and smoke generally. A. The provisions of this chapter are restrictive only and establish no new rights for a person who engages in smoking. Notwithstanding (1) any provision of this chapter or other provisions of this code, (2) any failure by any person to restrict smoking under this chapter, or (3) any explicit or implicit provision of this code that allows smoking in any place, nothing in this code shall be interpreted to limit any person's legal rights under other laws with regard to smoking, including, for example, rights in nuisance, trespass, property damage, and personal injury or other legal or equitable principles.

B. Notwithstanding any other provision of this chapter, smoking cannabis for medical purposes as permitted by California Health and Safety Code Sections 11362.7 et seq. is not prohibited by this chapter. BC. For all purposes within the jurisdiction of the town, nonconsensual exposure to smoke occurring on or drifting into residential property is a nuisance, and the uninvited presence of smoke on residential property is a nuisance and a trespass. Any person bringing a civil action to enforce the nuisance provision contained in this section need not prove an injury different in kind or in degree from injury to others to prove a violation of this chapter. C. Smoking in a designated nonsmoking unit, on or after June 5, 2015, is a violation of this chapter. * * * * *

6.14.130 - Penalties and enforcement. A. Criminal prosecution. Every instance of smoking in violation of this chapter is an infraction subject to a one-hundred dollar fine or otherwise punishable pursuant to Section 1.0.010 of this Code. Other violations of this chapter may, in the discretion of the town manager, be prosecuted as infractions punishable pursuant to Section 1.04.010 or misdemeanors when the interests of justice so require. The town manager is authorized to enforce this chapter, but may also work with the county of Marin or the Twin Cities Police Authority to coordinate enforcement by those entities. In addition, any peace officer or code enforcement official may also enforce this chapter. B. Administrative Penalties. Any person violating any of the provisions or failing to comply with any of the requirements of this code shall be subject to administrative citation and penalties as set forth in Chapter 9.05 of Title 9 of this code. C.B. Civil enforcement by the town. 1. Fines. Violations of this chapter are subject to a civil action brought by the town, punishable by a civil fine not less than two hundred fifty dollars and not exceeding one thousand dollars per violation. 2. Injunctions, nuisance abatement, and code enforcement. In addition to other remedies provided by this chapter or otherwise available at law or in equity, any violation of this chapter may be remedied by a civil action brought by the town attorney, including, without limitation, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief. D.C. Civil enforcement by private citizens. Any person, including a legal entity or organization, acting for the interests of itself, its members, or the general public may bring a civil action for injunctive relief to prevent future such violations or sue to recover such actual or statutory damages as he or she may prove. E.D. General provisions. 1. Cumulative remedies. The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.

2. Violations. Causing, permitting, aiding, or abetting a violation of any provision of this chapter shall also constitute a violation of this chapter. 3. Nuisances. Any violation of this chapter is hereby declared to be a public nuisance. 4. Town discretion. Except as otherwise provided, enforcement of this chapter is at the sole discretion of the town. Nothing in this chapter shall create a right of action in any person against the town or its agents to compel public enforcement of this chapter against private parties.

Section Two. Chapter 6.16 of Title 6 of the Corte Madera Municipal Code is hereby amended to read as set forth below:

Chapter 6.16 - TOBACCO PRODUCTS SALES PROHIBITED FROM VENDING MACHINES

* * * * * 6.16.030 - Definitions. The following words and phrases, whenever used in this chapter, shall be construed as defined in this section: (1)"Business" means any sole proprietorship, joint venture, corporation or other business entity formed for profit-making purposes, including retail establishments where tobacco products are sold. (2)"Retail tobacco store" or "tobacco retailer" means a retail store utilized primarily for the sale of tobacco products and accessories and in which the sale of other products is merely incidental. (3)"Self-service merchandising" means open display of tobacco products and point-of- sale tobacco promotional products to which the public has access without the intervention of an employee.

(4) "Tobacco product" means any of the following: (A) A product containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, or snuff. (B) An electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, pipe, or hookah. (C) Any component, part, or accessory of a tobacco product, whether or not sold separately. “Tobacco product” does not include a product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for

other therapeutic purposes where the product is marketed and sold solely for such an approved purpose. any tobacco cigarette, cigar, pipe tobacco, smokeless tobacco, snuff or any other form of tobacco which may be utilized for smoking, chewing, inhalation or other manner of ingestion. (5)"Tobacco vending machine" means any electronic or mechanical device or appliance the operation of which depends upon the insertion of money, whether in coin or paper currency, or other things representative of value, which dispenses or releases a tobacco product. (6)"Vendor-assisted" means only a store employee has access to the tobacco product and assists the customer by supplying the product. The customer does not take possession of the product until it is purchased. 6.16.040 - Regulating the sale of tobacco products. (a) Any person, business, tobacco retailer or other establishment which sells tobacco products shall post at least one plainly visible sign at or in the immediate vicinity of the point of purchase of tobacco products which states that the sale of tobacco products to persons under eighteen years of age is prohibited by law and that photo identification is required for purchase. Said sign shall use the wording adopted by the state of California Department of Health Services. The letters of said sign shall be at least one-quarter-inch high. (b) No person, business, tobacco retailer, or owner, manager or operator of any establishment subject to this chapter shall sell, offer to sell or permit to be sold any tobacco product to an individual without requesting and examining identification establishing the purchaser's age as eighteen years or greater unless the seller has some reasonable basis for determining the buyer's age. (a)(c) It is unlawful for any person, business or tobacco retailer to sell, permit to be sold or offer for sale any tobacco product by means of self-service merchandising, or by any means other than vendor-assisted sales. (b)(d) No person, business or tobacco retailer shall locate, install, keep, maintain or use, or permit the location, installation, keeping, maintenance or use on his, her or its premises any tobacco vending machine. Any tobacco vending machine in use on the effective date of the ordinance codified in this chapter shall be removed within thirty days after the effective date of the ordinance codified in this chapter.

* * * * *

Section Three: Severability.

The Town Council hereby declares every section, paragraph, sentence, clause, and phrase is severable. If any section, paragraph, sentence, clause, or phrase of this ordinance is for any reason found to be invalid or unconstitutional, such invalidity, or unconstitutionality shall not affect the validity or constitutionality of the remaining sections, paragraphs, sentences, clauses or phrases.

Section Four: Inclusion in the Corte Madera Municipal Code.

It is the intention of the Corte Madera Town Council that the text in Sections one and two be made a part of the Corte Madera Municipal Code and that the text may be renumbered or re- lettered and the word "Ordinance" may be changed to "Section", "Chapter", or such other appropriate word or phrase to accomplish this intention.

Section Five: Effective date.

This Ordinance shall go into effect thirty (30) days from its adoption.

Section Six: Posting.

The Town Clerk shall cause a summary of this ordinance to be published in the Marin Independent Journal within 5 days prior to passage and within 15 days after passage.

********

This ordinance was introduced on the __ day of _____, 2021, and adopted on the ___ day of ______2021, by the following vote:

AYES: Town Council Members: NOES: Town Council Members: ABSENT: Town Council Members: ABSTAIN: Town Council Members:

APPROVE: ______ELI BECKMAN, MAYOR

ATTACHMENT 2

Links to the staff reports and attachments from the April 6, 2021 and March 2, 2021 Town Council meetings

April 6, 2021: Ordinance 1006 - Staff Report and Attachments https://www.townofcortemadera.org/DocumentCenter/View/6158/6C- Staff-Report-and-Attachments

Video available here: https://youtu.be/M5BkjGu4mOw?t=2918

March 2, 2021: Ordinance 1006 - Staff Report and Attachments https://www.townofcortemadera.org/DocumentCenter/View/5994/5B- Staff-Report-and-Attachments

Video available here: https://youtu.be/f_AdrV5rJVE?t=864

ATTACHMENT 3

Notice of Public Hearing, Published April 9, 2021

Smoke-Free Housing Ordinance Amendment

(Move to 100% Smoke-Free Multi-Unit Residential Housing, No Exemption for Smoking of Cannabis, Including Medical) to be considered for introduction at the Tuesday, April 20, 2021 Corte Madera Town Council Meeting

At the Tuesday, April 20, 2021 Corte Madera Town Council meeting, scheduled to begin at 6:30pm via Zoom videoconference, the Town Council will hold a public hearing, receive public comment and consider introduction of Ordinance No. 1006, which would amend various sections of Chapter 6.14, Prohibiting Smoking In Public Places, Places Of Employment, Other Areas, And Multi-Unit Housing, and Chapter 6.16, Tobacco Products Sales Prohibited From Vending Machines, of the Corte Madera Municipal Code, to move to 100% Smoke-Free Multi-Unit Residential Housing, with no exemption for smoking of cannabis, including for medical purposes, in all units of multi-unit properties. The ordinance would also allow for enforcement of the ordinance by administrative citation.

At the April 6th Town Council meeting, the Council voted to set aside their vote on the previous version of the ordinance. The Ordinance now proposed for introduction on April 20th prohibits smoking of tobacco or cannabis, for any purpose, in all units of multi-unit housing. The Town of Corte Madera last reviewed and amended its ordinances related to smoking in public places and multi-unit housing with the adoption of Ordinance 940 on May 6, 2014, which prohibited smoking in 80% of multi-unit residential housing, with the recognition that the prohibition would be phased up to 100% of units in the future. Corte Madera is one of the remaining cities/towns in Marin County that have not implemented 100% smoke-free multi-unit residential housing.

Ordinance 1006, as proposed, would require that, within one year after the Ordinance is adopted and effective, 100% of units in multi-unit housing, whether rental or common interest, be designated nonsmoking. The proposed ordinance maintains the existing provisions related to designation of a portion of an unenclosed area of a common area as a designated smoking area, provided that the area meets criteria outlined in 6.14.020(B)(5), which can be reviewed here.

The staff report and attachments for this item will be available by Friday, April 16th at 5:00pm and can be viewed here: https://www.townofcortemadera.org/681/Agendas-Minutes-and- Notices. If introduced on April 16th, the ordinance would be brought back for consideration and possible adoption by the Town Council at its May 4th meeting.

Public comment can be submitted to the Town of Corte Madera via email to: [email protected]

Members of the public may view/participate in the meeting remotely through the following link: https://tinyurl.com/y7aw8ubu You may call in using: 1 (408) 638-0968 or iPhone one-tap: +14086380968,,91451440692# (Zoom webinar ID: 914-5144-0692)

Please visit the Town’s website for more information on how to join and participate in this meeting remotely: https://www.townofcortemadera.org/910/Town-Council-Meetings Page 1 of 1 Published and posted on April 9, 2021

CORTE MADERA TOWN COUNCIL STAFF REPORT

REPORT DATE: April 14, 2021 MEETING DATE: April 20, 2021

TO: Honorable Mayor and Members of the Town Council

FROM: Todd Cusimano, Town Manager

Daria Carrillo, Finance Director

SUBJECT: 2021 Pension Obligation Bonds – Approving Indenture of Trust, Official Statement and Bond Purchase Agreement

       

RECOMMENDED ACTION:

That the Town Council adopt Resolution No. 16/2021.

SUMMARY:

The Town has explored various cost management strategies over the past 18 months to address its $21.4 million funded (UAL) as of June 30, 2021 with the California Public Employees Retirement System (CalPERS). At the October 27, 2020 Town Workshop, the Town, Finance Ad Hoc Committee, and its Municipal Advisor (NHA Advisors) provided a presentation discussing the Town’s most recent actuarial report released by CalPERS in July of 2020 and provide a discussion on alternative repayment strategies, including a restructuring of the UAL. After discussing the potential benefits and risks of a UAL Restructuring using a Pension Obligation Bond (POB), the Town brough back the item in November of 2020 and approved bond and validation documents related to a potential POB. On April 6, 2021, a discussion of final POB options and the results of the stress testing/risk assessment was presented to Town Council. Approval of the Preliminary Official Statement (POS) and other related documents is the last step in the approval process. After Council approval and the culmination of the court validation process (expected April 21, 2021), the Town intends to sell the POBs in late April and close the financing in early May.

BACKGROUND/DISCUSSION:

At the April 6, 2021 Town Council Meeting, a comprehensive presentation was made summarizing the POB evaluation and financing process. The staff report and presentation for April 6th can be found in the appendices to this staff report. After the results of the stress testing were discussed, it was unanimously decided to execute the 24 year POB option. Based on current interest rates, the estimated savings to the Town (assuming CalPERS earns 7% returns in the future) is shown below:

1 6.A.

$2.4 $2.2

Millions $2.0 $1.8 $1.6 $1.4 $1.2 $1.0 $0.8 $0.6 $0.4 $0.2

2043 2022 2023 2024 2025 2026 2027 2028 2029 2030 2031 2032 2033 2034 2035 2036 2037 2038 2039 2040 2041 2042 2044 2045

Corte Madera UAL 24-Year POB

Metrics 24-Year POB UAL Funded ($) $18,829,414 UAL Funded (%) 88% Funded Ratio 97% Avg. Life (Avg. Weighted Maturity) 14.2 Years All-In Interest Rate 3.18% Cumulative Savings (Through Maturity) $6,205,155 PV Savings ($ - Discounted @ Bond Rate) $6,383,535 PV Savings (% of UAL - Discounted @ Bond Rate) 33.90% PV Savings ($ - Discounted @ 7.0%) $5,737,895 PV Savings (% of UAL - Discounted @ 7.0%) 30.47% Cumulative Savings (2022-2036) $12,232,164 Average Annual Savings (2022-2036) $815,478

Other Updates Since April 6th: Since the meeting and discussion on April 6th, Town Staff and its financing team finished the credit rating process with Standard and Poor’s (S&P). S&P upgraded the City’s Issuer Credit Rating (ICR) from a “AA+” to a “AAA,” the highest possible level. While the final credit rating report has not been published at the time of this staff report (it will be shared with Council once released), the S&P

analysts cited extremely strong management, forward looking financial policies/procedures, and strong financial performance as key factors leading to the credit rating upgrade. The rating upgrade will ensure that the Town obtains the lowest possible interest rates on its upcoming financings and is a testament to the Town’s financial strength, leadership and oversight.

If the Town Council were to adopt Resolution No. 16/2021, the Town would then work with its underwriter, Oppenheimer, to distribute the POS to potential investors and begin marketing the Town’s POBs. Interest rates are expected to be set in late April, with a closing (and funding of the CalPERS UAL) by early May.

FISCAL IMPACT:

None in FY 2020-21. The estimated fiscal impact savings for FY 2021-22 is about $470,000. Overall, and as shown on the previous page, there is an estimated $6.38M of overall present value savings from executing the refinancing.

ENVIRONMENTAL IMPACT:

ATTACHMENTS:

1. Resolution No. 16/2021 2. Indenture of Trust 3. Preliminary Official Statement 4. Bond Purchase Agreement 5. April 6, 2021 Pension Presentation to Town Council 6. April 6, 2021 Staff Report

CORTE MADERA TOWN COUNCIL STAFF REPORT

REPORT DATE: April 14, 2021 MEETING DATE: April 20, 2021

TO: Honorable Mayor and Members of the Town Council

FROM: Todd Cusimano, Town Manager

SUBJECT: Approval of the Execution and Delivery of Lease Certificates of Participation to Finance the Town Hall Project, and Related Documents and Actions

       

RECOMMENDED ACTION:

That the Town Council adopt a resolution approving the execution and delivery of certificates of participation to finance the Town Hall Project, approving the method of sale and approving documents (including a Preliminary Official Statement) and official actions.

BACKGROUND:

Town Hall Project. The Town Council previously directed staff to undertake a renovation and expansion of Town Hall (the “Project”). The Project is expected to cost approximately $9 million, and the Town expects to use $2 million of available cash and wishes to finance the remaining $7 million.

Proposed Financing. It is common for general law cities in California to use lease/leaseback structures to finance capital projects.

In 2006, the Town used a lease structure to finance its acquisition of the Park Madera Center, and caused the execution and delivery of certificates of participation in lease payments made by the Town (the “2006 Certificates”).

In 2016, the Town refinanced the 2006 Certificates, and caused execution and delivery of refunding certificates of participation (the “2016 Certificates”). The 2016 Certificates represent interests in lease payments (the “2016 Lease Payments”) made by the Town pursuant to a Lease Agreement, dated as of June 1, 2016 (the “2016 Lease Agreement”). The Town pays the 2016 Lease Payments for use and occupancy of three Town properties: (i) Park Madera Center, (ii) the firehouse and facilities commonly known as Station 13 and located at 5600 Paradise Drive and (iii) the Town Hall and Fire Safety buildings located at 300-342 Tamalpais Drive (the “Leased Property”).

Appraisals of the Leased Property in 2015 concluded that the aggregate market value of the Leased

1 6.B.

Property was $15,110,000, and staff estimates that the current value of the Leased Property is at least equal to that amount.

The 2016 Lease Agreement authorizes the Town to amend the provisions of the 2016 Lease Agreement to obligate the Town to pay additional amounts of rental for the use and occupancy of the Leased Property if the additional rental will be used to finance improvements to the Leased Property.

DISCUSSION:

Proposed Financing Structure. In order to provide financing for the Project, staff recommends that the Town amend the 2016 Lease Agreement and the other documents related to the 2016 Certificates to provide for the payment of additional rental (the “Supplemental Lease Payments”) for the use and occupancy of the Leased Property, and cause execution and delivery of the Town of Corte Madera 2021 Certificates of Participation (Town Hall Project) (the “2021 Certificates”).

Required Documents. The financing documents are briefly summarized below: First Amendment to Site Lease – In 2016, the Town entered into a Site Lease (the “2016 Site Lease”) with the Corporation, under which it leased the Leased Property to the Corporation. In connection with the execution and delivery of the 2021 Certificates, the Town and the Corporation will amend the 2016 Site Lease to accommodate the payment of the Supplemental Lease Payments by the Town under the 2016 Lease Agreement. First Amendment and Supplement to Lease Agreement – As permitted in the 2016 Lease Agreement, the Town and the Corporation will amend the 2016 Lease Agreement to provide for the payment by the Town of the Supplemental Lease Payments for the purpose of financing the Project.

Trust Agreement and Assignment Agreement – The Corporation will assign its right to receive the Supplemental Lease Payments to The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”), under an Assignment Agreement, and in consideration of such assignment the Trustee will execute and deliver the 2021 Certificates pursuant to a Trust Agreement. The Town is not a party to the Assignment Agreement.

Certificate Purchase Agreement – This agreement provides for the sale of the 2021 Certificates to Brandis Tallman, a Division of Oppenheimer & Co. Inc. (the “Underwriter”), and includes representations and warranties made by the Town, and specifies the conditions to the Underwriter’s obligation to accept delivery of the 2021 Certificates.

Continuing Disclosure Certificate – Under the Continuing Disclosure Certificates, the Town will agree to provide annual disclosure reports and notices of certain events to the Municipal Securities Rulemaking Board (MSRB) via its Electronic Municipal Market Access (EMMA) service.

Preliminary Official Statement - The attached Preliminary Official Statement has been reviewed and approved for transmittal to the Town Council by the Town’s financing team. The distribution of the Preliminary Official Statement by the Town is subject to federal securities laws, including the Securities Act of 1933 and the Securities Exchange Act of 1934. These laws require the Preliminary Official Statement to include all facts that would be material to an investor in the proposed Refunding Bonds. Material information is information that there is a substantial likelihood would have actual significance in the deliberations of the reasonable investor when deciding whether to buy or sell the 2021 Certificates. If the Town Council concludes

that the Preliminary Official Statement includes all facts that would be material to an investor in the 2021 Certificates, it must adopt a resolution that authorizes staff to execute a certificate to the effect that the Preliminary Official Statement has been “deemed final.”

The Securities and Exchange Commission (the “SEC”), the agency with regulatory authority over the Town’s compliance with the federal securities laws, has issued guidance as to the duties of the Town Council with respect to its approval of the Preliminary Official Statement. In its “Report of Investigation in the Matter of County of Orange, California as it Relates to the Conduct of the Members of the Board of Supervisors” (Release No. 36761 / January 24, 1996) (the “Release”), the SEC indicated that, if a member of the Town Council has knowledge of any facts or circumstances that an investor would want to know about prior to investing in the 2021 Certificates, whether relating to their repayment, tax-exempt status, undisclosed conflicts of interest with interested parties, or otherwise, he or she should endeavor to discover whether such facts are adequately disclosed in the Preliminary Official Statement. In the Release, the SEC indicated that the steps that a member of the Town Council could take include becoming familiar with the Preliminary Official Statement and questioning staff and consultants about the disclosure of such facts.

The proposed 2021 Certificates represent interests in lease payments made by the Town from any available funds, primarily the Town’s general fund, as described in the section of the Preliminary Official Statement captioned “SECURITY FOR THE CERTIFICATES.” The Town has included financial information and operating data related to the Town’s ability to pay the lease payments in the following sections of the Preliminary Official Statement: “TOWN FINANCIAL INFORMATION.” The Town’s Comprehensive Annual Financial Report for fiscal year 2019-20 is included in Appendix A to the Preliminary Official Statement.

In addition, the Town includes information about material risks to purchasers of the Refunding Bonds in “RISK FACTORS,” and information about relevant constitutional and statutory limitations on the Town’s ability to collect revenues and pay the lease payments in the section of the Preliminary Official Statement captioned “CONSTITUTIONAL AND STATUTORY LIMITATIONS ON TAXES AND APPROPRIATIONS.”

Participation of the Corporation. The Public Property Financing Corporation of California, a California nonprofit public benefit corporation, was formed for the purpose of providing financial assistance to California cities in financing the acquisition and improvement of public buildings, equipment and facilities. The Corporation assisted the Town with the 2006 Certificates and the 2016 Certificates. The Corporation will adopt a resolution approving its participation in this transaction.

FISCAL IMPACT:

Debt service on the Certificates will be payable from lease payments made by the Town to the Corporation; the Town will pay the lease payments from the Town’s General Fund. The estimated proceeds of the Certificates of $7 million will be deposited into a Project Fund.

The Certificates are to be repaid over twenty years at a currently estimated true interest cost of approximately 2.37%, with annual debt service being approximately $455,000.

ENVIRONMENTAL IMPACT:

OPTIONS:

The Town could choose not to approve the proposed financing, in which case the Town would not have sufficient funds to proceed with the Project.

ATTACHMENTS:

1. Resolution 2. First Amendment and Supplement to Lease Agreement 3. First Amendment to Site Lease 4. Trust Agreement 5. Certificate Purchase Agreement 6. Preliminary Official Statement (including Continuing Disclosure Certificate)

CORTE MADERA TOWN COUNCIL STAFF REPORT

REPORT DATE: April 16, 2021 MEETING DATE: April 20, 2021

TO: Honorable Mayor and Members of the Town Council

FROM: Adam Wolff, Director, Planning and Building

Ann Danforth, Assistant Town Attorney

SUBJECT: Consideration and Possible Adoption of Resolution No. 18/2021, Adopting an Amended Policy Implementing Provisions of Municipal Code Chapter 12.38 by Revising Town Policy for Application Requirements, Review Procedures, and Evaluation Criteria for Right of Way Agreement Applications for Small Cell Wireless Communication Facilities.

       

RECOMMENDED ACTION:

Adopt Resolution No. 18/2021.

BACKGROUND:

The Town regulates the use of its streets and sidewalks – generally its Public Right of Way (“PROW”) – through Title 12 of the Town’s Municipal Code. Chapter 12.38 of Title 12 requires that, “[n]o person shall place, construct, own, control, operate, manage, or use any facility in, upon, above, beneath, or across any public right-of-way without first obtaining a right-of-way agreement from the town for such purpose.” While certain types of facilities are exempt from this requirement, right of way agreements are currently necessary for a wide variety of facilities and structures located within the PROW, including small cell wireless communication facilities. Separately, Chapter 18.19 of the Town’s Municipal Code regulates the deployment of wireless communication facilities on private property.

Beginning with Town Council discussion at its October 2, 2018 Town Council (see staff report in Attachment 4), several recent actions have been taken to develop an appropriate Town response to evolving wireless communications technology and federal regulations governing its deployment. In summary, these actions include:

- Adoption of Ordinance No. 982 on February 5, 2019, clarifying who must apply, and be

1 6.C. responsible for, applications for right of way agreements, and authorizing the Town Manager to consider and approve or deny such applications in order to comply with the short turn-around times for small cell wireless facility applications;

- Adoption of Town Council Resolution No. 36/2019 on August 20, 2019, which created the Town’s existing policy for application requirements, review procedures, and evaluation criteria for small cell facilities proposed in the Town’s right of way, utilizing the County of Marin’s policies for small cell facilities as a foundation; and

- Participation in joint litigation challenging the Federal Communications Commission (FCC) declaratory ruling and order of September 26, 2018 (effective January 14, 2019), limiting local government regulation of small cell wireless facilities in the PROW by: limiting local discretion over land use; and b) limiting the amount of time and fees that local governments have in their review and approval of small cell wireless facilities in the PROW. A summary of this effort from the Town Attorney and the Ninth Circuit’s decision and opinion is included in Attachment 3.

DISCUSSION:

As part of the Town’s ongoing efforts to comply with federal regulations consistent with recent court decisions related to the FCC September 26, 2018 declaratory ruling and order, and provide Town staff with the ability to exercise control over the placement and aesthetics of small cell wireless facilities proposed in the Town’s PROW to the greatest extent practicable, staff is proposing amendments to Town’s existing policy for the application, review and approval of small cell wireless facilities proposed in the PROW. The proposed amendments reflect staff consultation with Tim Lay, who represented the Town in its litigation against the FCC, and who, at the request of staff, reviewed the Town’s existing policy adopted in Town Council Resolution No. 36/2019 in light of the Ninth Circuit’s recent decision and prior FCC rulings.

The proposed amended policy is included as Exhibit A to draft Resolution No. 18/2021 (Attachment 1). A “redline” version has also been included in Attachment 2 to clearly identify the proposed changes to the Town’s adopted wireless policy, previously adopted with Town Council Resolution No. 36/2019.

In summary, the proposed changes to the policy are intended to: 1) avoid obvious contradictions to the FCC declaratory rules and orders (including those addressed by the recent Ninth Circuit decision) in order to reduce the likelihood of legal challenge from the wireless industry; 2) reinforce the Town’s ability to regulate aesthetics of small cell wireless facilities, and 3) clarify and simplify certain provisions of the policy related to application requirements to aid both applicants and staff in policy implementation.

To date, the Town has not approved any active applications for small cell wireless facilities in the Town’s right-of-way.

FISCAL IMPACT:

There is no fiscal impact associated with the approval of this item.

ENVIRONMENTAL IMPACT:

This adoption of a policy to amend existing regulations related to application requirements, review procedures, and evaluation criteria, consistent with federal law, not a project pursuant to CEQA.

OPTIONS:

1. Adopt the resolution as presented. 2. Adopt the resolution with modifications to the proposed amended policy. 3. Take no action at this time.

ATTACHMENTS:

1. Draft Resolution No. 18/2021 2. “Redline” version of the Town’s Amended Policy for Small Cell Wireless Facilities 3. Memo from the Town Attorney and Ninth Circuit 2020 Decision and Opinion 4. Staff report w/o attachments from October 2, 2018 Town Council meeting 5. Sample image of small cell wireless facilities on utility infrastructure

THIS ITEM HAS BEEN REVIEWED AND APPROVED BY THE TOWN MANAGER.

ATTACHMENT 1

Draft Resolution No. 18/2021

RESOLUTION NO. 18/2021

A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF CORTE MADERA ADOPTING AN AMENDED POLICY IMPLEMENTING PROVISIONS OF MUNICIPAL CODE CHAPTER 12.38 BY ESTABLISHING TOWN POLICY FOR APPLICATION REQUIREMENTS, REVIEW PROCEDURES, AND EVALUATION CRITERIA FOR RIGHT OF WAY AGREEMENT APPLICATION FOR SMALL CELL WIRELESS COMMUNICATION FACILITIES

SECTION I: FINDINGS

WHEREAS, pursuant to Article XI, section 7 of the California Constitution, the Town Council of the Town of Corte Madera (“Town”) may make and enforce within its limits all local, police, sanitary and other ordinances and regulations not in conflict with general laws; and

WHEREAS, Federal law establishes specified limitations and preemptions in relation to the siting of wireless communications facilities as part of the Federal Telecommunications Act of 1996 (47 U.S.C. § 332); and

WHEREAS, On November 18, 2009, the Federal Communications Commission (" FCC") adopted a declaratory ruling (the " 2009 Shot Clock"), which established presumptively reasonable timeframes for State and local governments to act on applications for wireless communication facilities; and

WHEREAS, On February 22, 2012, Congress adopted Section 6409(a) of the MiddleClass Tax Relief and Job Creation Act ("Section 6409(a)"), which mandated that State and local governments approve certain modifications and collocations to existing wireless communications facilities; and

WHEREAS, On October 17, 2014, the FCC adopted a report and order that, among other things, implemented new limitations on how State and local governments review applications covered by Section 6409(a), established an automatic approval for such applications when the local reviewing authority fails to act within 60 days, and also further restricted generally applicable procedural rules under the 2009 Shot Clock. This report and order effectively preempted local moratoria on wireless communications facilities by finding that the 2009 Shot Clock continues to run even when a valid moratorium is adopted; and

WHEREAS, in October 2014, the FCC unanimously approved rules interpreting Section 6409 that took effect as of April 2015; and

WHEREAS, On August 2, 2018, the FCC adopted a declaratory ruling that formally prohibited express and de facto moratoria for all telecommunications services and facilities under 47 U. S.C. § 253(a) and directed the Wireline Competition Bureau and the Wireless Telecommunications Bureau to hear and resolve all complaints on an expedited basis; and

WHEREAS, On September 26, 2018, the FCC adopted a declaratory ruling and report and order that, among other things, creates a new regulatory classification for small wireless facilities, requires State and local governments to process applications for small wireless facilities within 60 days or 90 days, establishes a national standard for an effective prohibition and provides that a failure to act within the applicable timeframe presumptively constitutes an effective prohibition; and

WHEREAS, the FCC Ruling, effective on January 14, 2019, set forth new limitations on state and local government regulation of small cell wireless facilities that are placed on existing or new utility poles and street light standards located in the public right-of-way. Specifically, the FCC Ruling; a) limits the level of local permitting and discretion; b) establishes new shorter "shot clock" rules (e.g., time limits and deadlines) for processing and action on local permits; and c) limits the fees that can be charged for permitting small cell deployments; and

WHEREAS, On August 12, 2020, in City of Portland v. United States, 969 F.3d 1020 (9th Cir. 2020), the United States Court of Appeals for the Ninth Circuit upheld the Small Cell Order except (1) its requirement that aesthetic standards for small cells must be objective and (2) its requirement that aesthetics standards for small cells be no more burdensome than those imposed on non-small cell facilities, such as utility facilities, in the rights-of-way; and

WHEREAS, under California Government Code Section 65964, local governments are required to approve collocations through a ministerial process and are prohibited from limiting the duration of permits for wireless sites to less than 10 years, absent good reason; and

WHEREAS, under the State law, a wireless collocation facility must be a permitted use, not subject to a local discretionary permit, if it satisfies certain requirements (Gov. Code § 65850.6); and

WHEREAS, State law establishes a framework, process, and procedures governing the attachment of telecommunications facilities to investor-owned utility poles and municipal utility poles, providing the California Public Utilities Commission (CPUC) the authority to establish and enforce rates terms and conditions for pole attachment (Pub.Utl. Code, §7901); and

WHEREAS, local governments may not block utility pole attachments, but existing law authorizes to them to regulate the time, manner and place of pole attachments in the public roads (Pub.Utl. Code, §7901.1); and

WHEREAS, the Town regulates wireless telecommunications facilities pursuant to the Title 18 (Chapter 18.19 – Wireless Communications Facilities). Among other provisions, these regulations impose standards for installation of wireless facilities primarily on private property, establish review processes, and require compliance with FCC regulations with regard to radiofrequency emissions; and

WHEREAS, Chapter 18.19 of the Town’s Municipal Code exempts wireless communication facilities located in the public right of way (“PROW”) from its requirements; wireless communications facilities in the PROW are instead subject to the requirements for right of way agreement applications and review procedures in Chapter 12.38 (Use of Public Right-of-Way) of the Municipal Code.

WHEREAS, small cell wireless facilities are primarily installed within the PROW and in populated areas and as such create significant and far-reaching local concerns about pedestrian and vehicular safety; driver sight lines; creation of visual and aesthetic blights arising from excessive size, heights, noise or lack of camouflaging of wireless facilities including the associated pedestals, meters, equipment and power generators, and protection and preservation of public property, all of which may negatively impact the unique quality and character of the Town and the public health, safety and welfare thereof. Accordingly, regulating the installation of small cell facilities in the Town is necessary to protect and preserve the aesthetics in the community, as well as the values of properties within the Town, and to ensure that all wireless telecommunications facilities are installed using the least intrusive means possible; and

WHEREAS, the adoption of small cell wireless facility policies are necessary to ensure public safety, to protect the Town's visual character from potential impacts of visual impacts or visual blight created or exacerbated by telecommunications infrastructure and to promote access to high-quality, advanced telecommunication services for the Town's residents, businesses and visitors; and

WHEREAS, Section 12.38.030 of the Town’s Municipal Code requires any person constructing, installing, or operating a wireless facility in the PROW execute a right of way agreement with the Town; and

WHEREAS, Section 12.38.070(b) of the Town’s Municipal Code provides criteria for the Town Manager, or that person’s designee to apply in considering whether to grant or deny a requested right of way agreement; such criteria includes “the availability of existing or future alternative routes or locations for the applicant’s proposed facilities” and “any other factor or circumstance deemed relevant for protecting the health and safety of the town and the public,” and

WHEREAS, Section 12.38.160(a) of the Town’s Municipal Code requires that all facilities shall be placed, installed or constructed and the right of way restored in accordance with the standard specifications adopted by resolution of the Town Council and any applicable special conditions or provisions imposed by the Town Council or Director of Public Works (or his or her designee); and

WHEREAS, the Town Council desires to implement and better define the required contents of right of way agreement applications, the specific criteria to be utilized in denying or approving right of way agreements, and the installation requirements for small wireless facilities proposed in the PROW through the adoption of Town policies specific to such uses; such policies will provide greater clarity and consistency in the review of right of way agreement applications and create a consistent design program that promote public safety and enhance the aesthetics and orderliness of the Town’s right of ways to the extent possible under federal law; and

WHEREAS, the Town Council desires to define the application review processes and procedures for right of way agreement applications for small wireless communication facilities; such application review processes and procedures will enable the Town to comply with the expedited review process required by FCC regulations; and

WHEREAS, given the rapid and significant changes in federal and State law governing small cell installations in the PROW, the FCC’s prohibition on local government’s ability to adopt moratoria while undertaking a process to amend local policies in response to such changes, and the significant adverse consequences for noncompliance with federal and State law, on August 20, 2019, the Town Council adopted a regulatory policy for small wireless facilities by resolution to give the Town the ability to amend that policy more quickly in response to new federal and State laws governing small cell installations while preserving the Town's traditional discretionary authority to the maximum extent practicable; and

WHEREAS, to incorporate recent changes in governing law including the Ninth Circuit’s decision in City of Portland, improve Town’s ability to regulate wireless facilities in the PROW and better manage applications under the applicable "shot clocks" that govern the time in which the Town must approve or deny wireless facility applications, the Town Council desires to amend its existing regulatory policy for

small cell wireless facilities and that amended policy is attached to this resolution as Exhibit A, and incorporated herein by this reference (the "Amended Policy"); and

WHEREAS, subject to certain limitations in federal and California law, the Town Council finds that the Amended Policy is consistent with the provisions and intent in the Town’s General Plan, the Municipal Code, and other applicable provisions; and

WHEREAS, the Town Council finds that the Amended Policy will, to the extent permitted by federal and California law, protect and promote public health, safety and welfare, and also balance the benefits that flow from robust, advanced wireless services with the Town's local values, which include without limitation the aesthetic character of the Town, its neighborhoods, and communities; and

WHEREAS, on April 20, 2021, the Town Council held a duly noticed public hearing on the Amended Policy, reviewed and considered the staff report, other written reports, public testimony and other information contained on the record; and

SECTION II: ACTION

NOW THEREFORE, BE IT RESOLVED that the Town Council of the Town of Corte Madera resolves as follows: 1. The above recitals are true and correct and incorporated herein by reference. 2. The Town Council of the Town of Corte Madera’s Amended Policy regulating small wireless facilities, attached to this resolution as Exhibit A, is hereby adopted. 3. Such amended policy shall be effective immediately and may be amended from time to time, or repealed, by resolution of the Town Council.

SECTION Ill: VOTE

AYES: Councilmembers: NOES: Councilmembers: ABSENT: Councilmembers:

Eli Beckman, Mayor

ATTEST:

Rebecca Vaughn, Town Clerk

EXHIBIT A

TOWN OF CORTE MADERA AMENDED POLICY – APRIL 20, 2021

Small Cell Wireless Facilities

Contents Contents 1 GENERAL PROVISIONS ...... 6 2 EXEMPTIONS...... 9 3 APPLICABILITY; REQUIRED PERMIT AND APPROVALS ...... 9 4 RIGHT OF WAY AGREEMENT FOR SMALL CELL WIRELESS FACILITIES: APPLICATION REQUIREMENTS .. 10 5 SMALL CELL WIRELESS APPLICATION SUBMITTAL AND REVIEW PROCESS ...... 8 6 LOCATION REQUIREMENTS IN THE PROW ...... 13 7 DESIGN REQUIREMENTS ...... 14

1 GENERAL PROVISIONS

1.1 PURPOSE AND INTENT a) On September 27, 2018, the Federal Communications Commission ("FCC") adopted a Declaratory Ruling and Third Report and Order, FCC 18- 133 (the "Small Cell Order"), in connection with two informal rulemaking proceedings entitled Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, WT Docket No. 17-79, and Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment, WC Docket No. 17- 84. The regulations adopted in the Small Cell Order significantly curtail the local authority over wireless and wireline communication facilities reserved to State and local governments under sections 253 and 332(c)(7) of the federal Communications Act of 1934, as amended by the federal Telecommunications Act of 1996. On August 12, 2020, in, City of Portland v. United States, 969 F.3d 1020 (9th Cir. 2020).the United States Court of Appeals for the Ninth Circuit upheld the Small Cell Order except for its requirement that aesthetic standards for small cells must be objective and its requirement that aesthetics standards for small cells be no more burdensome than those imposed on non-small cell facilities, such as utility facilities, in the rights-of-way. b) The Town of Corte Madera intends this Amended Policy to implement and supplement Section 12.38 of the Town’s Municipal Code related to right of way applications and agreements to establish reasonable, uniform and comprehensive standards and procedures for small cell wireless facilities deployment, construction, installation, collocation, modification, operation, relocation and removal within the public right of way in the Town of Corte Madera, consistent with and to the extent permitted under federal and California state law. The standards and procedures contained in this Policy are intended to, and should be applied to, protect and promote public health, safety and welfare, and balance the benefits that flow from robust, advanced wireless services with the Town's local values, which include without limitation the aesthetic character of the Town, its neighborhoods and community. This Amended Policy is also intended to reflect and promote the community interest by (1) ensuring that the balance between public and private interests is maintained; (2) protecting pedestrian and vehicular safety in and around the Town’s public rights-of-way; (3) protecting the Town's visual character from potential adverse impacts and/ or visual blight created or exacerbated by small cell wireless facilities and related communications infrastructure; (4) protecting and preserving the Town's environmental resources; (5) protecting and preserving the Town's public rights-of-way and infrastructure located within the Town's public rights- of way; and (6) promoting access to high- quality, advanced wireless services for the Town's residents, businesses and visitors. c) This Amended Policy is not intended to remove or make inapplicable other requirements for right of way agreements in Chapter 12.38 that are not included or addressed in this Amended Policy. Where the provisions or requirements of this Amended Policy are inconsistent or conflict with the provisions or requirements included in Chapter 12.38, the Director of Public Works or the Director of Planning and Building shall determine which provision or requirement shall apply. d) This Amended Policy is not intended to, nor shall it be interpreted or applied to: (1) prohibit or

effectively prohibit any personal wireless service provider's ability to provide personal wireless services; (2) prohibit or effectively prohibit any entity's ability to provide any 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 personal wireless services; (4) deny any request for authorization to place, construct or modify personal wireless service facilities on the basis of environmental effects of radio frequency emissions to the extent that such wireless facilities comply with the FCC' s regulations concerning such emissions; (5) prohibit any collocation or modification that the Town may not deny under federal or California state law; (6) impose any unreasonable, discriminatory or anticompetitive fees that exceed the reasonable cost to provide the services for which the fee is charged; or (7) otherwise authorize the Town to fail to comply with any applicable federal or California law.

1.2 DEFINITIONS a) Undefined Terms. Undefined phrases, terms or words in this section will have the meanings assigned to them in the Town of Corte Madera Municipal Code Chapter 12.38 and, if not defined therein, will have the meanings assigned to them in 1 U.S.C. § 1, as may be amended or superseded, and, if not defined therein, will have their ordinary meanings. If any definition assigned to any phrase, term or word in this section conflicts with any federal or state-mandated definition, the federal or state mandated definition will control. b) Defined Terms.

1) "antenna" means the same as defined by the FCC in 47 C.F.R. § 1. 6002( b), as may be amended or superseded.

2) "collocation" means the same as defined by the FCC in 47 C.F.R. § 1. 6002( g), as may be amended or superseded, which defines the term as (1) mounting or installing an antenna facility on a preexisting structure; and/or (2) modifying a structure for the purpose of mounting or installing an antenna facility on that structure.

3) "Commercial sites" for this policy, means the location of a proposed small cell wireless facility in the public right of way, where such location is closest to a Commercial (C) zoning district, as defined by the Town of Corte Madera Zoning Map.

4) "concealed" or "concealment" means location requirements, setbacks, height limitations, screens, shrouds, or other techniques or materials that integrate the transmission equipment or structure into, or conceal them from, the surrounding natural and/ or built environment. . Camouflaging concealment techniques include but are not limited to: (1) antennas mounted within a radome above a streetlight; (2) equipment cabinets in the public rights-of-way painted or wrapped to match the background; and (3) cables and wiring concealed within a shroud and/ or routed internally through the support structure; (4) locating a facility where it is screened or shielded from view by pre-existing natural conditions or human-made structures; and (5) installing camouflaging screens or shrouding on or next to a facility. Where concealment measurements approved in this Policy become technically infeasible due to advances in technology, the Director of Public Works or Director of Planning and Building shall have the authority to approve alternative concealment techniques that are consistent with the goals and objectives of this Policy.

5) "decorative pole" means any pole that includes decorative or ornamental features, design elements and/ or materials intended to enhance the appearance of the pole or the public rights- of-way in which the pole is located.

6) "FCC" means the Federal Communications Commission or its duly appointed successor agency.

7) "FCC Shot Clock" means the presumptively reasonable time frame within which the County generally must act on a given wireless application, as defined by the FCC and as may be amended or superseded.

8) "Light Industrial sites" for this policy, means the location of a proposed small cell wireless facility in the public right of way, where such location is closest to a Light Industrial (M) zoning district, as defined by the Town of Corte Madera Zoning Map.

9) “Mixed Use sites” for this policy, means the location of a proposed small cell wireless facility in the public right of way, where such location is closest to a Mixed-Use (MX) zoning district as indicated on the Town of Corte Madera Zoning Map.

10) “Mixed Use Overlay and Affordable Housing Overlay sites” for this policy, means the location of a proposed small cell wireless facility in the public right of way, where such location is closest to a Mixed-Use or Affordable Housing Overlay zoning district as indicated on the Town of Corte Madera Zoning Map.

11) “Public and Semi-Public Facility sites” for this policy, means the location of a proposed small cell wireless facility in the public right of way, where such location is closest to a Public and Semi-Public Facility (P/SP) zoning district as indicated on the Town of Corte Madera Zoning Map.

12) “Professional and Administrative Office sites” for this policy, means the location of a proposed small cell wireless facility in the public right of way, where such location is closest to a Professional and Administrative Office (O) zoning district as indicated on the Town of Corte Madera Zoning Map.

13) “Residential sites” for this policy, means the location of a proposed small cell wireless facility in the public right of way, where such location is closest to a Residential (R) zoning district as defined by the Town of Corte Madera Zoning Map.

14) "personal wireless services" means the same as defined in 47 U.S.C. §332( c)( 7)( C)( i), as may be amended or superseded.

15) "personal wireless service facilities" means the same as defined in 47 U.S.C. § 332(c)( 7)( C)( i), as may be amended or superseded.

16) "RF" means radio frequency or electromagnetic waves.

17) "Section 6409" means Section 6409(a) of the Middle-Class Tax Relief and Job Creation Act of 2012, Pub. L. No. 112- 96, 126 Stat. 156, codified as 47 U.S.C. 1455( a), as may be amended or superseded.

18) "small wireless facility" or "small cell wireless facilities" means the same as defined by the FCC

in 47 C.F.R. § 1 . 6002(1), as may be amended or superseded.

19) "structure" for this policy, means the same as defined by the FCC in 47 C.F.R. § 1.6002(m), as may be amended or superseded, which defines the term as a pole, tower, base station, or other building, whether or not it has an existing antenna facility, that is used or to be used for the provision of personal wireless service (whether on its own or comingled with other types of services).

20) "tower" means the same as defined by the FCC in 47 C.F.R. § 1.6100( b)( 9), as may be amended or superseded.

21) “transmission equipment” means the same as defined by the FCC in 47 C.F.R. § 1.6100(b)(8), as may be amended or superseded.

22) “Town of Corte Madera Zoning Map” means the Official Town of Corte Madera Zoning Map, adopted in August 1994, as amended or superseded.

2 EXEMPTIONS.

An applicant may request an exemption from one or more requirements in this Amended Policy on the basis that a permit denial would effectively prohibit deployment of personal wireless services. The Applicant shall bear the burden of establishing that a permit denial would effectively prohibit such deployment.

3 APPLICABILITY; REQUIRED PERMIT AND APPROVALS

a) Applicable Facilities. Except as expressly provided otherwise in this Amended Policy, the provisions in this Amended Policy shall be applicable to all existing small cell wireless facilities and all applications and requests for authorization to construct, install, attach, operate, collocate, modify, reconstruct, relocate, remove or otherwise deploy small cell wireless facilities within the public right of way (“PROW”) in the Town. All small cell wireless facilities on private properties, public property within Town zoning districts, and private roads shall be subject to the CMMC Chapter 18.19. b) Right of Way Agreement for a Small Cell Wireless Facility (“Agreement”). A Right of Way Agreement for a Small Cell Wireless Facility, subject to the Director of Public Works or his/her designee’s prior review and approval, is required for any small cell wireless facility proposed on an existing, new or replacement structure. c) Amended Right of Way Agreement for Small Cell Wireless Facility (“Amended Agreement”). An Amended Right of Way Agreement for a Small Cell Wireless Facility, or if a Right of Way Agreement for a Small Cell Wireless Facility does not exist, a new Right of Way Agreement for a Small Cell Wireless Facility pursuant to paragraph b) of this section, subject to the Director of Public Works or that person’s designee’s prior review and approval, is required for the modification, replacement or alteration of an existing small cell wireless facility, unless the existing facility is malfunctioning and is being replaced with the same equipment and specifications, and in the same location, as determined by the Director of Public Works. The Director of Public Works may request any evidence he/she deems necessary to make such determination. d) Request for Approval Pursuant to Section 6409. Notwithstanding anything in this Policy to the

contrary, requests for approval to collocate, replace or remove transmission equipment at an existing wireless tower or base station submitted pursuant to Section 6409 will be subject to the current FCC rules and regulations for “eligible facilities requests" as defined by FCC and as may be amended or superseded. e) Other Permits and Approvals. In addition to an Agreement or an Amended Agreement, an applicant must obtain all other regulatory approvals as may be required by any other Federal or State agencies, and the Town, which includes without limitation any other ministerial permits, building permits, encroachment permits, lease agreements, etcetera. Final decision for Agreements or Amended Agreements shall be issued prior to encroachment and/or construction permits being deemed complete.

4 RIGHT OF WAY AGREEMENT FOR SMALL CELL WIRELESS FACILITIES APPLICATION REQUIREMENTS

4.1 Agreement and Amended Agreement Application Contents. All applications for Agreements or Amended Agreements must include all the information and materials listed below: a) Application Form. Applications for Agreements and Amended Agreements shall be submitted on application forms in the manner set forth, and with the information required in Corte Madera Municipal Code Section 12.38.050 for right of way agreements and the information required herein. Such application shall also include the supplemental information required herein. Application forms may be updated from time to time by the Director of Public Works. Agreement application forms shall be made available online through the Town’s website and at the Town’s public service counter. b) Batched Applications. Applicants may submit up to five individual applications for an Agreement or Amended Agreement (or combination of the two), in a "batch" to be reviewed together at the same time; provided, however, that (i) all small cell wireless facilities in a batch must be proposed with substantially the same equipment in the same configuration on the same support structure type; and (ii) each application in a batch must meet all the requirements for a complete application, which includes without limitation the application fee for each application in the batch. c) Application Fee. The applicant shall submit the applicable Agreement or Amended application fee pursuant to CMMC Section 12.38.060, which shall be in the form of a deposit. The applicant shall be required to fund all costs associated with peer review study of any technical information submitted by the applicant in the application, including subsections (d) RF/EMF Compliance Report and (h) Acoustic Analysis, below, or as part of the annual review set forth in subsection (e) below. Such costs may include, without limitation, the cost of a third-party consultant to determine the accuracy of the information submitted or representations made by the applicant. . Costs covered by this section shall include all costs incurred by the town in obtaining peer review, including, without limitation, the consultants' fee and the town's overhead cost associated with staff time expended on administration of the contracts. d) RF/EMF Compliance Report. The applicant shall submit an RF exposure compliance report that certifies that the proposed small cell wireless facility, as well as any collocated wireless facilities, will comply with applicable federal RF exposure standards and exposure limits. The RF report must be prepared and certified by licensed RF engineer. The RF report must include the actual frequency and power levels (in watts effective radiated power) for all existing and proposed antennas at the site

and exhibits that show the location and orientation of all transmitting antennas and the boundaries of areas with RF exposures in excess of the uncontrolled/ general population limit (as that term is defined by the FCC) and also the boundaries of areas with RF exposures in excess of the controlled/ occupational limit (as that term is defined by the FCC). Each such boundary shall be clearly marked and identified for every transmitting antenna at the project site. e) RF/EMF Reports. Within thirty days after completion of the wireless communication facility, and on an annual basis thereafter, the service provider shall conduct tests to verify compliance with FCC radio frequency emissions standards and provide such test results to the Town. Such testing shall be conducted during normal business hours and on a non-holiday weekday with the facility operating at maximum power and shall measure total radio frequency emissions from the site. f) Property Owner's Authorization. For any small cell wireless facility proposed to be installed on a support structure, including utility poles, the applicant must submit a written authorization from the support structure owner(s). g) Facility Master Plan. All applications for Agreements or Amended Agreements shall include a small cell wireless communications facilities master plan. The master plan shall consist of the following components: (1) A brief description of the location and type of equipment associated with each facility, and the type of service (i.e., cellular, PCS, etc.) each company/carrier will provide over the wireless communications facilities it currently has in the Town or plans to to site in the Town;

(2) A five hundred-scale map, or high-resolution digital image depicting Corte Madera and a minimum five hundred feet of adjacent communities in all directions that shows the applicant's existing, approved, proposed (application filed and pending),planned (applications not yet filed), and abandoned wireless communication facility sites within the area encompassed by the map; such map shall include the geographic location and boundaries of all coverage areas (search rings) of all identified existing, approved, proposed and planned small cell wireless communications facilities;

(3) Photographs of new and modified installations within the Town showing all antennas, transmitters and ancillary equipment.

(3) vantage points within the public streets or other publicly accessible spaces, together with a vicinity map that shows the proposed site location and the photo location for each vantage point. If the proposed location of the small wireless facility is within 500 feet of a residential zoning district, up to three (3) additional vantage points, to be selected by the Director of Public Works or his/her designee, may be required. The photographic simulations shall accurately represent the scale of the proposed facility in relation to surrounding land uses and the representation of the planned installations design. j) Acoustic Analysis. The applicant shall submit an acoustic analysis prepared and certified by an engineer for the proposed small cell wireless facility and all associated equipment including all environmental control units, sump pumps, temporary backup power generators, and permanent backup power generators. The acoustic analysis must also include an analysis of the manufacturers' specifications for all noise-emitting equipment and a depiction of the proposed equipment relative to all adjacent property lines. In lieu of an acoustic analysis, the applicant may submit evidence from the equipment manufacturer that the ambient noise emitted from all the proposed equipment will not, both individually and cumulatively, exceed the applicable limits. The cumulative noise associated with a small cell wireless facility shall comply with the noise regulations for mechanical devices applicable to the nearest zoned parcel of property, as such regulations are defined in Section 9.36.030 of the Corte Madera Municipal Code. k) Removal Agreement: The applicant shall submit an agreement to remove any and all small cell wireless facilities no longer used or abandoned by the applicant and shall restore the PROW to its prior condition within ten (10) days of notice by the Town. In the event that applicant fails to remove said small cell wireless facilities, the applicant shall agree that the Town may remove said small cell wireless facilities and restore the PROW at the sole cost and expense of the applicant. l) Additional Requirements. The Town Council authorizes the Director of Public Works or the Director of Planning and Building to develop, publish and from time to time update or amend Agreement or Amended Agreement application requirements, forms, checklists, guidelines, informational handouts and other related materials that the Director of Public Works or the Director of Planning and Building finds necessary, appropriate or useful for processing any application governed under this Policy. All such requirements and materials must be in written form and publicly available to all interested parties.

5 SMALL CELL WIRELESS APPLICATION SUBMITTAL AND REVIEW PROCESS a) Requirements for a Duly Filed Application. Any application for an Agreement or Amended Agreement will not be considered duly filed unless submitted in accordance with the requirements listed below:

1) Submittal Appointment. All applications are encouraged, but not required, to be submitted to the Town at a prescheduled appointment with Public Works or Planning and Building Department staff.

delays due to application incompleteness, potential applicants are encouraged (but not required) to bring any draft applications or other materials so that Town staff may provide informal feedback and guidance about whether such draft applications or other materials may be incomplete or unacceptable. b) Completeness Review. The review of Agreement or Amended Agreement applications for determining completeness shall be occur within 10 days of the submittal or resubmittal of an Agreement or Amended Agreement application. Until responded to by the applicant, an application that has been determined to be incomplete within 10 days of filing shall be deemed an incomplete Small Cell Wireless Permit application for purposes of subparagraphs (e) and (f) below. The time allowed for processing shall be tolled until the Applicant cures the deficiency, a period not to exceed 10 days. Notwithstanding the foregoing, if the project is subject to Section 6409 and the applicant cures the deficiency within 10 days, the period of time shall recommence as if the applicant had submitted a new application.

c) Public Notice. Public notice of applications for Agreements shall be provided in compliance with the public notice requirements for applications contained in Municipal Code Section 18.30.050 for staff level Design Review. d) Decision. Pursuant to Municipal Code Section 12.38.070, a decision to approve or deny an Agreement or Amended Agreement application shall be made by the Town Manager or his or her designee and shall be based solely on factual evidence and in conformance with design criteria in Section 6 and 7, and the exemption provisions of Section 2, if applicable, of this Policy, and shall be final. Appropriate conditions may be added to any approval to ensure compliance with the design criteria. e) Expiration of Applications. An incomplete Small Cell Wireless Permit application shall expire 30 days following the date the Agency provides written notice that the application is incomplete, unless the Director grants extensions not to exceed a total of 90 days. f) Resubmittal after expiration of application. In the event that a Small Cell Wireless Application permit application expires, the applicant may submit a new application, and all required fees, to the Agency in compliance with this Policy, and the application review process will begin again. g) Additional Procedures. The Town Council authorizes the Director of Public Works or the Director of Planning and Building to establish other reasonable rules and regulations for duly filed applications, which may include without limitation regular hours for appointments with applicants, as the Director of Public Works or the Director of Planning and Building deems necessary or appropriate to organize, document and manage the application intake process. All such rules and regulations must be in written form and publicly stated to provide all interested parties with prior notice.

6 LOCATION REQUIREMENTS IN THE PROW

6.1 Locational and siting preferences. Small cell wireless facilities in the PROW shall be installed in the most highly preferred locations feasible as listed below, and unless denying such a particular location would violate federal or state Law, shall not be located in the least preferred locations as listed below:

a) Most Preferred Locations within the PROW.

1) Industrial sites

2) Commercial sites

3) Professional and Administrative Office sites

4) Public and Semi-Public sites, not including sites containing religious or school facilities or where the closest zoned parcel contains a residential use. b) Least Preferred Locations within the PROW.

1) Residential site

2) Public or Semi-Public sites containing religious or school facilities or where the closest zoned parcel contains a residential use.

3) Mixed Use sites where the closest zoned parcel contains residential uses.

4) Mixed Use Overlay or Affordable Housing Overlay sites where the zoned parcel contains residential uses

6.2 Support Structures in PROW. Small cell wireless facilities shall be installed on the most highly preferred support structures feasible in PROW, as listed below from most preferred to least preferred: a) Existing steel electricity transmission towers. b) Existing or replacement steel streetlight poles. c) New, non-replacement steel streetlight poles. d) Existing or replacement wood utility poles. e) New, non-replacement wood utility poles. f) Other new, non-replacement wood poles or towers for small cell wireless facilities.

7 DESIGN REQUIREMENTS

7.1 General Design Standards: The following standards shall apply to all small cell wireless facilities: a) No more than one small cell wireless facility shall be installed per pole and each small cell wireless facility shall be limited to one antenna enclosure and two associated accessory enclosures per pole, subject to the volumetric size limitations adopted by the FCC. b) Small cell wireless facilities shall not be permitted on a decorative pole.

c) No advertising signage shall be displayed on any small cell wireless facility except for government required signage such as site identification, address, warning and similar required information. d) Lights shall be limited to those required by the Federal Aviation Administration (FAA) and Federal Communications Commission (FCC). e) No small cell wireless facility shall incommode the public, as defined in Pub. Util. Code 7901, and as interpreted by Courts, (including without limitation, persons with disabilities) in its use of the PROW or any structure within or abutting the PROW or any portion of the PROW. f) Small cell wireless facilities shall maintain at least 1,000 feet distance from the nearest small cell wireless facility operated, owned, or leased by the same wireless service provider. g) Small cell wireless facility shall only use flat-rate electric service or other method that obviates the need for a separate above-grade electric meter. If flat-rate service is not available, applicants shall install a meter within the cabinet enclosures or within the support structure. A separate ground- mounted electric meter pedestal shall be prohibited. h) Detached ground-mounted accessory equipment including, but not limited to, any utility or transmission equipment, pedestals, cabinets, panels or electric meters, shall be prohibited. j) Small cell wireless facilities in the PROW shall not be located (i) less than the minimum separation from supply lines required by California Public Utilities Commission (CPUC) General Order 95, as may be amended or superseded, plus four feet, or (ii) on any structure greater than 50 feet in height, or (iii) such that the facility, any point, exceeds 50 feet in height, or extends the existing structure height by more than 10 percent, whichever is greater, .

7.2 Design and installation standards for pole-mounted for antenna within PROW a) All pole-mounted antenna shall be installed only on top or side (flush) mounted to a pole to minimize the overall visual profile and shall be centered on the vertical axis of the pole to which it is mounted. Projecting antennas shall be prohibited. b) All antennas and associated mounting equipment, hardware, cables or other connecters shall be completely concealed within an opaque antenna shroud, cabinet or radome. The antenna shroud, cabinet or radome shall be painted a flat, non-reflective color to match the underlying support structure. Shrouds, cabinet or radomes shall be tapered to the pole or other support structure. c) Each antenna associated with a small cell wireless facility shall not exceed three cubic feet in volume, and the cumulative volume for all antennas associated with a wireless facility in a public road shall not exceed six cubic feet in total volume. d) The diameter of the antenna, including enclosure, should not exceed the diameter of the pole but in no case shall be more than one and one-half times the diameter of the pole. The shroud shall be tapered to match the diameter of the pole and shall be painted to match the color of the support structure.

e) Side-mounted antenna shall not protrude from exterior surface of the pole more than six inches, except where required to comply with the General Order 95.

7.3 Design and installation standards for pole-mounted equipment enclosures within PROW. a) All accessory equipment enclosures shall be installed in accordance with the following preferences, ordered from most preferred to least preferred: (i) on the side of a pole, flush mounted; and (ii) integrated into the base of the pole or support structure. b) All flush mounted accessory equipment enclosures shall be on the same side of the pole facing the nearest traffic lane's direction of travel (unless consolidated with exiting signs) and shall be installed close to each other. If a long rectangular disconnect switch is used, the enclosure should be rotated so the elements can be stacked closer together on the pole. Wide offsets (more than 4 inches) of equipment enclosure brackets from the pole should be avoided. c) All accessory equipment enclosures shall be installed at a distance of at least 10 feet above surrounding grade (measured from finished grade to the bottom of the enclosure). d) Pole mounted enclosures shall be consolidated with existing signs to minimize visual impact. If equipment enclosures cannot be placed behind street signs, they shall be coated in material, style and color matching that of the supporting structures. e) All accessory equipment enclosures associated with a small cell wireless facility installed above ground level shall not cumulatively exceed 15 cubic feet. The volume calculation shall include any shroud, cabinet or other concealment device used in connection with the non-antenna accessory equipment. The volume calculation shall not include any equipment or other improvements placed underground.

7.4 Design and installation standards for wiring systems. a) All cables, wires and other connectors shall be routed through conduits within the pole or other support structures and all conduit attachments, cables, wires and other connectors must be concealed from public view. To the extent that cables, wires and other connectors cannot be routed through the pole, applicants shall route wires and other connectors through a single external conduit or shroud that has been finished to match the underlying support structure. b) Cabling below radio relay units (RRUs) shall enter the pole with no more than a five-inch gap between the bottom of each radio relay unit and the bottom of the corresponding entry hole on the pole. Conduit connections at pole entry shall utilize the smallest fitting sizes available. Sealing compounds, if utilized, shall be tidy without excess bubbling and painted to match pole.

the Americans with Disabilities Act of 1990 ("ADA"), as may be amended or replaced, which includes without limitation maintaining a clear space at the landing of any curb ramp. c) Support structures may be replaced with structurally hardened, fitted or reinforced support structures so long as the replacement structure is substantially similar to the existing structure to be replaced.

7.6 Design Standards for new, non-replacement poles within PROW. a) Any new, non-replacement pole must be a new steel streetlight substantially similar to the County of Marin standards and specifications but designed to accommodate wireless antennas and accessory equipment located immediately adjacent to the proposed location. If there are no existing streetlights, or utility poles in the immediate vicinity, the applicant may install a metal pole capable of concealing all the accessory equipment either within the pole or within an integrated enclosure located at the base of the pole. The pole diameter shall not exceed twelve inches and any base enclosure diameter shall not exceed sixteen inches. All antennas, whether on a new streetlight or other new pole, must be installed above the pole within a single, canister style shroud or radome.

ATTACHMENT 2

“Redline” version of the Town’s Amended Policy for Small Cell Wireless Facilities

EXHIBIT A

TOWN OF CORTE MADERA AMENDED POLICY – APRIL 20, 2021

Small Cell Wireless Facilities

Contents Contents 1 GENERAL PROVISIONS ...... 2 2 EXEMPTIONS...... 5 3 APPLICABILITY; REQUIRED PERMIT AND APPROVALS ...... 5 4 RIGHT OF WAY AGREEMENT FOR SMALL CELL WIRELESS FACILITIES: APPLICATION REQUIREMENTS .... 6 5 SMALL CELL WIRELESS APPLICATION SUBMITTAL AND REVIEW PROCESS ...... 9 6 LOCATION REQUIREMENTS IN THE PROW ...... 10 7 DESIGN REQUIREMENTS ...... 11

1 GENERAL PROVISIONS

1.1 PURPOSE AND INTENT a) On September 27, 2018, the Federal Communications Commission ("FCC") adopted a Declaratory Ruling and Third Report and Order, FCC 18- 133 (the "Small Cell Order"), in connection with two informal rulemaking proceedings entitled Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, WT Docket No. 17-79, and Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment, WC Docket No. 17- 84. The regulations adopted in the Small Cell Order significantly curtail the local authority over wireless and wireline communication facilities reserved to State and local governments under sections 253 and 332(c)(7)704 in of the federal TelecCommunications Act of 1934, as amended by the federal Telecommunications Act of 1996. On August 12, 2020, in, City of Portland v. United States, 969 F.3d 1020 (9th Cir. 2020).the United States Court of Appeals for the Ninth Circuit upheld the Small Cell Order except for its requirement that aesthetic standards for small cells must be objective and its requirement that aesthetics standards for small cells be no more burdensome than those imposed on non-small cell facilities, such as ulityutility facilities, in the rights-of-way. b) The Town of Corte Madera intends this Amended Policy to implement and supplement Section 12.38 of the Town’s Municipal Code related to right of way applications and agreements to establish reasonable, uniform and comprehensive standards and procedures for small cell wireless facilities deployment, construction, installation, collocation, modification, operation, relocation and removal within the public right of way in the Town of Corte Madera, consistent with and to the extent permitted under federal and California state law. The standards and procedures contained in this Policy are intended to, and should be applied to, protect and promote public health, safety and welfare, and balance the benefits that flow from robust, advanced wireless services with the Town's local values, which include without limitation the aesthetic character of the Town, its neighborhoods and community. This Amended Policy is also intended to reflect and promote the community interest by (1) ensuring that the balance between public and private interests is maintained; (2) protecting pedestrian and vehicular safety in and around the Town’s public rights-of-way; (3) protecting the Town's visual character from potential adverse impacts and/ or visual blight created or exacerbated by small cell wireless facilities and related communications infrastructure; (43) protecting and preserving the Town's environmental resources; (54) protecting and preserving the Town's public rights-of-way and infrastructure located within the Town's public rights- of way; and (65) promoting access to high- quality, advanced wireless services for the Town's residents, businesses and visitors. c) This Amended Policy is not intended to remove or make inapplicable other requirements for right of way agreements in Chapter 12.38 which that are not included or addressed in this Amended Policy. Where the provisions or requirements of this Amended Policy are inconsistent or conflict with the provisions or requirements included in Chapter 12.38, the Director of Public Works or the Director of Planning and Building shall determine which provision or requirement shall apply. d) This Amended Policy is not intended to, nor shall it be interpreted or applied to: (1) prohibit or

1) "antenna" means the same as defined by the FCC in 47 C.F.R. § 1. 6002( b}, ), as may be amended or superseded.

2) "collocation" means the same as defined by the FCC in 47 C.F.R. § 1. 6002( g}, ), as may be amended or superseded, which defines the term as (1) mounting or installing an antenna facility on a pre-existing structure; and/or (2) modifying a structure for the purpose of mounting or installing an antenna facility on that structure.

4) "concealed" or "concealment" means location requirements, setbacks, height limitations, screens, shrouds, or other concealing techniques or materials that integrate the transmission equipment or structure into, or conceal them from, the surrounding natural and/ or built environment. such that the average, untrained observer cannot directly view the equipment orbut would likely not recognize the existence of the wireless facility or concealment technique. Camouflaging concealment techniques include but are not limited to: (1) antennas mounted within a radome above a streetlight; (2) equipment cabinets in the public rights-of-way painted or wrapped to match the background; and (3) cables and wiring concealed within a shroud and/ or routed internally through the support structure; (4) locating a facility where it is screened or shielded from view by pre-existing natural conditions or human-made structures; and (5) installing camouflaging screens or shrouding on or next to a facility. . Where concealment measurements approved in this Policy become technically infeasible due to advances in technology, the Director of Public Works or Director of Planning and Building shall have 3

the authority to approve alternative concealment techniques that are consistent with the goals and objectives of this Policy.

6) "FCC" means the Federal Communications Commission or its duly appointed successor agency.

14) "personal wireless services" means the same as defined in 47 U.S.C. §332( c)( 7)( C)( i), as may be amended or superseded.

15) "personal wireless service facilities" means the same as defined in 47 U.S.C. § 332(c)( 7)( C)( i), as may be amended or superseded.

16) "RF" means radio frequency or electromagnetic waves.

18) "small wireless facility" or "small cell wireless facilities" means the same as defined by the FCC in 47 C.F.R. § 1 . 6002(1), as may be amended or superseded.

20) "tower" means the same as defined by the FCC in 47 C.F.R. § 1.6100( b)( 9), as may be amended or superseded.

20)21) “transmission equipment” means the same as defined by the FCC in 47 C.F.R. § 1.6100(b)(8), as may be amended or superseded.

21)22) “Town of Corte Madera Zoning Map” means the Official Town of Corte Madera Zoning Map, adopted in August 1994, as amended or superseded.

2 EXEMPTIONS.

An applicant may request an exemption from one or more requirements in this Section Amended Policy on the basis that a permit denial would effectively prohibit deployment of personal wireless services. The Applicant shall bear the burden of establishing that a permit denial would effectively prohibit such deployment. For approval of such an exemption, the applicant must demonstrate with clear and convincing evidence all of the following:

A significant gap in the applicant's service coverage exists;

All more preferable alternative sites identified in the application review process are either technically infeasible or not available; and

Permit denial would effectively prohibit personal wireless services.

The Town may require or obtain additional evidence to consider whether or not the criterion for an exemption has been met.

3 APPLICABILITY; REQUIRED PERMIT AND APPROVALS SMALL CELL WIRELESS FACILITIES

APPLICABILITY; REQUIRED PERMITS AND APPROVALS a) Applicable Facilities. Except as expressly provided otherwise in this Amended Policy, the provisions in this Amended Policy shall be applicable to all existing small cell wireless facilities and all applications and requests for authorization to construct, install, attach, operate, collocate, modify, reconstruct, relocate, remove or otherwise deploy small cell wireless facilities within the public right of way (“PROW”) in the Town. All small cell wireless facilities on private properties, public property 5

within Town zoning districts, and private roads shall be subject to the CMMC Chapter 18.19. b) Right of Way Agreement for a Small Cell Wireless Facility (“Agreement”). A Right of Way Agreement for a Small Cell Wireless Facility, subject to the Director of Public Works or his/her designee’s prior review and approval, is required for any small cell wireless facility proposed on an existing, new or replacement structure. c) Amended Right of Way Agreement for Small Cell Wireless Facility (“Amended Agreement”). An Amended Right of Way Agreement for a Small Cell Wireless Facility, or if a Right of Way Agreement for a Small Cell Wireless Facility does not exist, a new Right of Way Agreement for a Small Cell Wireless Facility pursuant to paragraph b) of this section, subject to the Director of Public Works or his/herthat person’s designee’s prior review and approval, is required for the modification, replacement or alteration of an existing small cell wireless facility, unless the existing facility is malfunctioning and is being replaced with the same equipment and specifications, and in the same location, as determined by the Director of Public Works. The Director of Public Works may request any evidence he/she deems necessary to make such determination. d) Request for Approval Pursuant to Section 6409. Notwithstanding anything in this Policy to the contrary, requests for approval to collocate, replace or remove transmission equipment at an existing wireless tower or base station submitted pursuant to Section 6409 will be subject to the current FCC rules and regulations for “eligible facilities requests" as defined by FCC and as may be amended or superseded. e) Other Permits and Approvals. In addition to an Agreement or an Amended Agreement, an applicant must obtain all other regulatory approvals as may be required by any other Federal or State agencies, and the Town, which includes without limitation any other ministerial permits, building permits, encroachment permits, lease agreements, etcetera. Final decision for Agreements or Amended Agreements shall be issued prior to encroachment and/or construction permits being deemed complete.

4 RIGHT OF WAY AGREEMENT FOR SMALL CELL WIRELESS FACILITIES APPLICATION REQUIREMENTS

includes without limitation the application fee for each application in the batch; (iii) if any individual application within a batch is deemed incomplete, the entire batch shall be automatically deemed incomplete; (iv) if any application is withdrawn or deemed expired from a batch, all other applications in the entire batch shall be automatically deemed expired; and (v) if any application in a batch fails to meet the required findings for approval, the entire batch shall be denied. c) Application Fee. The applicant shall submit the applicable Agreement or Amended application fee pursuant to CMMC Section 12.38.060, which shall be in the form of a deposit. The applicant shall be required to fund all costs associated with peer review study of any technical information submitted by the applicant in the application, including subsections (d) RF/EMF Compliance Report and (h) Acoustic Analysis, below, or as part of the annual review set forth in subsection (e) below. Such costs shall may include, without limitation, the cost of a third-party consultant to determine the accuracy of verify the information submitted or representations made by the applicant. predicted and actual measurement of electromagnetic radiation for compliance with current applicable FCC standards and may also include, without limitation, third-party evaluation of the feasibility of alternative facility designs and locations making recommendations on the best location(s) for providing the desired level of service coverage. Costs covered by this section shall include all costs incurred by the town in obtaining peer review, including, without limitation, the consultants' fee and the town's overhead cost associated with staff time expended on administration of the contracts. The carrier shall fund all costs associated with peer review of technical information and/or the town's retention of an independent consultant to measure electromagnetic radiation from the facilities for compliance with current applicable FCC standards. d) RF/EMF Compliance Report. The applicant shall submit an RF exposure compliance report that certifies that the proposed small cell wireless facility, as well as any collocated wireless facilities, will comply with applicable federal RF exposure standards and exposure limits. The RF report must be prepared and certified by an licensed RF engineer acceptable to the Town. The RF report must include the actual frequency and power levels (in watts effective radiated power) for all existing and proposed antennas at the site and exhibits that show the location and orientation of all transmitting antennas and the boundaries of areas with RF exposures in excess of the uncontrolled/ general population limit (as that term is defined by the FCC) and also the boundaries of areas with RF exposures in excess of the controlled/ occupational limit (as that term is defined by the FCC). Each such boundary shall be clearly marked and identified for every transmitting antenna at the project site. e) RF/EMF Reports. Within thirty days after completion of the wireless communication facility, and on an annual basis thereafter, the service provider shall conduct tests to verify compliance with FCC radio frequency emissions standards and provide such test results to the Ttown. Such testing shall be conducted during normal business hours and on a non-holiday weekday with the facility operating at maximum power and shall measure total radio frequency emissions from the site. f) Property Owner's Authorization. For any small cell wireless facility proposed to be installed on a support structure, including utility poles, the applicant must submit a written authorization from the support structure owner(s).

7 g) Facility Master Plan. All applications for Agreements or Amended Agreements shall include a five- year small cell wireless communications facilities master plan. The master plan shall consist of the following components: (1) A brief description of the location and type of equipment associated with each facility, and the type of service (i.e., cellular, PCS, etc.) each company/carrier will provide over the wireless communications facilities it currently has in the Ttown or plans to plans to site in the Ttown during the next five years; (2) A largefive hundred-scale map, or high-resolution digital image depicting Corte Madera and a minimum five hundred feet of adjacent communities in all directions that shows the applicant's five-year plan forexisting, approved, proposed (application filed and pending), and planned (applications not yet filed), and abandoned wireless communication facility sites within the area encompassed by the map; such map shall include (3) A five hundred-scale map of Corte Madera depicting the geographic location and boundaries of all coverage areas (search rings) of all identified existing, approved, proposed and planned small cell wireless communications facilities; by the applicant and the location of the applicant's facility sites within each coverage area, identified on the map by number. Facilities sites include existing sites, approved sites, proposed (application filed and pending) sites, and planned (applications not yet filed) sites for new, upgraded and abandoned facilities; (4) A written list of existing, proposed and anticipated planned wireless communication facility sites of the service provider over a five-year period; (5) A description of the location of each site and the types of installations, including antennas and equipment, at each site; (3)6) Photographs of new and modified installations within the Town showing all antennas, transmitters and ancillary equipment.;

Agreement and Amended Agreement applications may submit modifications to prior small cell wireless communications facilities master plans associated with an approved Agreement by providing only that information that requires update to comply with subsection (g)(1) – (g)(6). h) Plans. Site plans, elevations, and other architectural or engineering drawings which depict the height of the proposed facility from finished grade or where mounted to an existing structure, the height above that structure, if any, and the height from finished grade, the existing structure, the location of attachments, cabinets or other equipment associated with the facility, screening devices, materials, and colors. i) Photo Simulations. The applicant shall submit site photographs and photo simulations that show the existing location and proposed small cell wireless facility in context from at least three (3) vantage points within the public streets or other publicly accessible spaces, together with a vicinity map that shows the proposed site location and the photo location for each vantage point. If the proposed location of the small wireless facility is within 500 feet of a residential zoning district, up to three (3) additional vantage points, to be selected by the Director of Public Works or his/her designee, may be required. The photographic simulations shall accurately represent the scale of the proposed facility in relation to surrounding land uses and the representation of the planned installations design. j) Acoustic Analysis. The applicant shall submit an acoustic analysis prepared and certified by an engineer for the proposed small cell wireless facility and all associated equipment including all environmental control units, sump pumps, temporary backup power generators, and permanent 8

backup power generators. The acoustic analysis must also include an analysis of the manufacturers' specifications for all noise-emitting equipment and a depiction of the proposed equipment relative to all adjacent property lines. In lieu of an acoustic analysis, the applicant may submit evidence from the equipment manufacturer that the ambient noise emitted from all the proposed equipment will not, both individually and cumulatively, exceed the applicable limits. The cumulative noise associated with a small cell wireless facility shall comply with the noise regulations for mechanical devices applicable to the nearest zoned parcel of property, as such regulations are defined in Section 9.36.030 of the Corte Madera Municipal Code. j)k) Removal Agreement: The applicant shall submit an agreement to remove any and all small cell wireless facilities no longer used or abandoned by the applicant and shall restore the PROW to its prior condition within ten (10) days of notice by the Town. In the event that applicant fails to remove said small cell wireless facilities, the applicant shall agree that the Town may remove said small cell wireless facilities and restore the PROW at the sole cost and expense of the applicant. k)l) Additional Requirements. The Town Council authorizes the Director of Public Works or the Director of Planning and Building to develop, publish and from time to time update or amend Agreement or Amended Agreement application requirements, forms, checklists, guidelines, informational handouts and other related materials that the Director of Public Works or the Director of Planning and Building finds necessary, appropriate or useful for processing any application governed under this Policy. All such requirements and materials must be in written form and publicly available to all interested parties.

1) Submittal Appointment. All applications must are encouraged, but not required, to be submitted to the Town at a prescheduled appointment with Public Works or Planning and Building Department staff. Potential applicants may generally submit one application per appointment, or up to five individual applications per appointment for batched applications. Potential applicants may schedule successive appointments for multiple applications whenever feasible and not prejudicial to other applicants for any other development project. Any purported application received without an appointment, whether delivered in-person, by mail or through any other means, will not be considered duly filed, whether the Town retains, returns or destroys the materials received.

2) Pre-Submittal Conferences. The Town strongly encourages, but does not require, potential applicants to schedule and attend a pre-submittal conference with the Director of Public Works or Director of Planning and Building or their designee for all proposed projects that involve small cell wireless facilities. A voluntary pre-submittal conference is intended to streamline the review process through informal discussion between the potential applicant. To mitigate unnecessary delays due to application incompleteness, potential applicants are encouraged (but not required) to bring any draft applications or other materials so that Town staff may provide informal feedback and guidance about whether such draft applications or other materials may be

incomplete or unacceptable. b) Completeness Review. The review of Agreement and or Amended Agreement applications for determining completeness shall be occur within 10 days of the submittal or resubmittal of an Agreement or Amended Agreement application. Until responded to by the applicant, an application that has been determined to be incomplete within 10 days of filing shall be deemed an incomplete Small Cell Wireless Permit application for purposes of subparagraphs (e) and (f) below. The time allowed for processing shall be tolled until the Applicant cures the deficiency, a period not to exceed 10 days. Notwithstanding the foregoing, if the project is subject to Section 6409 and the applicant cures the deficiency within 10 days, the period of time shall recommence as if the applicant had submitted a new application.

b)c) Public Notice. Public notice of applications for Agreements shall be provided in compliance with the public notice requirements for discretionary applications contained in Municipal Code Section 18.30.050 for staff level Design Review. c)d) Decision. Pursuant to Municipal Code Section 12.38.070, a decision to approve or deny an Agreement or Amended Agreement application shall be made by the Town Manager or his or her designee and shall be based solely on factual evidence and in conformance with objective design criteria in Section 6 and 7, and the exemption provisions of Section 2, if applicable, of this Policy, and shall be final. Appropriate conditions may be added to any approval to ensure compliance with the design criteria. d)e) Expiration of Applications. An incomplete Small Cell Wireless Permit application shall expire 30 days following the date the Agency provides written notice that the application is incomplete, unless the Director grants extensions not to exceed a total of 90 days. e)f) Resubmittal after expiration of application. In the event that a Small Cell Wireless Application permit application expires, the applicant may submit a new application, and all required fees, to the Agency in compliance with this Policy, and the application review process will begin again. g) Additional Procedures. The Town Council authorizes the Director of Public Works or the Director of Planning and Building to establish other reasonable rules and regulations for duly filed applications, which may include without limitation regular hours for appointments with applicants, as the Director of Public Works or the Director of Planning and Building deems necessary or appropriate to organize, document and manage the application intake process. All such rules and regulations must be in written form and publicly stated to provide all interested parties with prior notice.

6 LOCATION REQUIREMENTS IN THE PROW

1) Industrial sites

2) Commercial sites

3) Professional and Administrative Office sites

4) Public and Semi-Public sites, not including sites containing religious or school facilities or where the closest zoned parcel contains a day care center and/or school as defined in 6.1(b)(1) belowresidential use. b) Least Preferred Locations within the PROW.

1) Any proposed location within a 1,500-foot radius of a day care center and/or public or private school, as defined by sections 1596.76 of the Health and Safety Code and the California Department of Education, respectively.

1) Residential site

2) Public or Semi-Public sites containing religious or school facilities or where the closest zoned parcel contains a residential use.

3) Mixed Use sites where the closest zoned parcel contains residential uses.

4) Mixed Use Overlay or Affordable Housing Overlay sites where the zoned parcel contains residential uses

7 DESIGN REQUIREMENTS

facility shall be limited to one antenna enclosure and two associated accessory enclosures per pole, subject to the volumetric size limitations adopted by the FCC. b) Small cell wireless facilities shall not be permitted on a decorative pole. c) No advertising signage shall be displayed on any small cell wireless facility except for government required signage such as site identification, address, warning and similar required information. d) Lights shall be limited to those required by the Federal Aviation Administration (FAA) and Federal Communications Commission (FCC). e) No small cell wireless facility shall incommode the public, as defined in Pub. Util. Code 7901, and as interpreted by Courts, (including without limitation, persons with disabilities) in its use of the PROW or any structure within or abutting the PROW or any portion of the PROW. f) Small cell wireless facilities shall maintain at least 1,000 feet distance from the nearest small cell wireless facility operated, owned, or leased by the same wireless service provider. g) Small cell wireless facilities shall maintain at least 1,500 feet distance from the nearest public or private school, as defined by the California Department of Education.1 h)g) Small cell wireless facility shall only use flat-rate electric service or other method that obviates the need for a separate above-grade electric meter. If flat-rate service is not available, applicants shall install a meter within the cabinet enclosures or within the support structure. A separate ground- mounted electric meter pedestal shall be prohibited. i)h) Detached ground-mounted accessory equipment including, but not limited to, any utility or transmission equipment, pedestals, cabinets, panels or electric meters, shall be prohibited. j) Small cell wireless facilities in the PROW shall not be located (i) be less than exceed either (i) the minimum separation from supply lines required by California Public Utilities Commission (CPUC) General Order 95, as may be amended or superseded, plus four feet, or (ii) on any structure greater than 50 feet in height, or (iii) such that the facility,at any point, exceeds 50 feet in height, or extends the existing structure height by more than 10 percent, whichever is greater, four ten feet above height of the existing support structure. Legally required lightning arresters and beacons, shroud, cabinet or radome shall be included when calculating the height of the facility. At no point shall an existing support structure be increased by more than 10 feet above existing height.

1 See: https://www.cde.ca.gov/ds/si/ds/dos.asp 12

cabinet or radome shall be painted a flat, non-reflective color to match the underlying support structure. Shrouds, cabinet or radomes shall be tapered to the pole or other support structure. c) Each antenna associated with a small cell wireless facility shall not exceed three cubic feet in volume, and the cumulative volume for all antennas associated with a wireless facility in a public road shall not exceed six cubic feet in total volume. For the purposes in this Section "volume" shall include any shroud, radome or other concealment device used in connection with the antenna. d) The diameter of the antenna, including enclosure, should not exceed the diameter of the pole but in no case shall be more than one and one-half times the diameter of the pole. The shroud shall be tapered to match the diameter of the pole and shall be painted to match the color of the support structure. e) Side-mounted antenna shall not protrude from exterior surface of the pole more than six inches, except where required to comply with the General Order 95.

7.3 Design and installation standards for pole-mounted equipment enclosures within PROW. a) All accessory equipment enclosures shall be installed in accordance with the following preferences, ordered from most preferred to least preferred: (i) on the side of a pole, flush mounted; and (ii) integrated into the base of the pole or support structure. b) All flush mounted accessory equipment enclosures shall be on the same side of the pole facing the nearest traffic lane's direction of travel (unless consolidated with exiting signs) and shall be installed closer to each other . If a long rectangular disconnect switch is used, the enclosure should be rotated the enclosure so the elements can be stacked closer together on the pole. Avoid wWide offsets (more than 4 inches) of equipment enclosure brackets from the pole should be avoided. c) All accessory equipment enclosures shall be installed at a distance of at least 10 feet above surrounding grade (measured from finished grade to the bottom of the enclosure). d) Pole mounted enclosures shall be consolidated with existing signs to minimize visual impact. If equipment enclosures cannot be placed behind street signs, they shall be coated in material, style and color matching that of the supporting structures. e) All accessory equipment enclosures associated with a small cell wireless facility installed above ground level shall not cumulatively exceed 10 15 cubic feet. The volume calculation shall include any shroud, cabinet or other concealment device used in connection with the non-antenna accessory equipment. The volume calculation shall not include any equipment or other improvements placed underground.

that has been finished to match the underlying support structure. b) Cabling below radio relay units (RRUs) shall enter the pole with no more than a five-inch gap between the bottom of each radio relay unit and the bottom of the corresponding entry hole on the pole. Conduit connections at pole entry shall utilize the smallest fitting sizes available. Sealing compounds, if utilized, shall be tidy without excess bubbling and painted to match pole.

7.5 Design Standards for collocated small cell wireless facilities on existing support structures within PROW. a) Small cell wireless facilities on existing (non-replacement) support structures shall be limited to existing standard steel streetlight poles, steel utility poles, and wood utility poles that are capable of supporting the proposed small cell wireless facility. b) Small cell wireless facilities shall only be installed on existing support structures that comply with the Americans with Disabilities Act of 1990 ("ADA"), as may be amended or replaced, which includes without limitation maintaining a clear space at the landing of any curb ramp. c) Support structures may be replaced with structurally hardened, fitted or reinforced support structures so long as the replacement structure is substantially similar to the existing structure to be replaced.

7.6 Design Standards for new, non-replacement poles within PROW. a) Any new, non-replacement pole must be a new steel streetlight substantially similar to the County's County of Marin standards and specifications but designed to accommodate wireless antennas and accessory equipment located immediately adjacent to the proposed location. If there are no existing streetlights, or utility poles in the immediate vicinity, the applicant may install a metal pole capable of concealing all the accessory equipment either within the pole or within an integrated enclosure located at the base of the pole. The pole diameter shall not exceed twelve inches and any base enclosure diameter shall not exceed sixteen inches. All antennas, whether on a new streetlight or other new pole, must be installed above the pole within a single, canister style shroud or radome.

ATTACHMENT 3

Memo from the Town Attorney and Ninth Circuit 2020 Decision and Opinion

350 Sansome Street | Suite 300 San Francisco, CA 94104

Date: November 30, 2020

To: Mayor Beckman Honorable Members, Corte Madera Town Council

From: Amy S. Ackerman, Interim Town Counsel Ann Danforth, Assistant Town Counsel

Re: Regulation of 5G Wireless Facilities

CC: Todd Cusimano, Town Manager

This memorandum provides information regarding the Town’s challenge to the Federal Communications Commission’s (“FCC”) rules regulating the state and local government approval processes for installing 5G wireless equipment and the resulting 9th Circuit decision. The Council will be considering the Town’s revised 5G policy on the May 20, 2021 Council agenda. The 5G policy has been revised to comply with the 9th Circuit decision.

Background In 1996, Congress enacted the Telecommunications Act of 1996 (“Act”) to facilitate deployment of telecommunications infrastructure nationwide. Section 253(a) of the Act provides that “[n]o State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide interstate or intrastate telecommunications service.” (47 U.S.C sec. 253(a).).

In an effort to clarify the scope of the Act’s preemptive effect, on September 26, 2018, the FCC adopted rules intended to remove barriers to wireless infrastructure investment by streamlining state and local government approval processes for installation of 5G wireless equipment (also known as small cell or small wireless facilities). The rules reduced the discretion of local agencies nationwide in determining whether to approve applications for small wireless facilities. The most significant rule changes are summarized below:

1. The rules imposed an abbreviated time (called a “shot clock”) for local public agencies to approve or deny applications for small wireless facilities. For collocation of small wireless equipment on existing facilities, the rules provided for a new 60-day shot clock. For small wireless installations requiring construction of new facilities, there was a new 90-day shot clock.

Memo to: Mayor Beckman Honorable Members, Corte Madera Town Council Page 2

2. The rules limited the fees public agencies may impose for installation of small wireless facilities in the right-of-way to those that (1) represent a “reasonable approximation” of the government’s “objectively reasonable” costs, and (2) are no higher than fees charged to similarly-situated competitors in similar situations.

3. The rules limited the factors public agencies may consider in deciding whether to approve applications for small wireless facilities. Under the rules, public agencies may deny small cell installation applications based on aesthetic requirements – including minimum spacing requirements – only if the requirements are (1) “reasonable,” (2) no more burdensome than those applied to other types of infrastructure deployments, and (3) published in advance. Additionally, the new rules limit public agencies from requiring undergrounding of all wireless facilities.

9th Circuit’s Decision Corte Madera joined with numerous other jurisdictions to challenge the FCC’s rules. On August 12, 2020, the Ninth Circuit Court of Appeals issued its opinion in City of Portland v. United States.1 Unfortunately, the court largely rejected local governments’ challenges to the rules.

1. The Court upheld the FCC’s “shot clock regulations,” but stated that the shot clocks create only presumptions and local officials may demonstrate to a court that additional time is necessary.

2. The Court upheld the restrictions of fees.

3. The Court did partially overturn the FCC’s rule may limiting the denial of small cell installation applications based on aesthetic requirements. The Court held that a jurisdiction’s aesthetic regulations must be “reasonable.” But, the Court found that the FCC regulation that that aesthetic limitations on small cells be “no more burdensome” than those applied to other technologies was stricter than the Act’s requirement that the small cells be compared to functionally equivalent infrastructure deployments.

After the panel of the 9th Circuit issued its decision, the cities sought a petition for rehearing before the full panel of 9th Circuit justices (en banc hearing), which the Court of Appeals denied on October 22, 2020. At its meeting on December 1, 2018, Council voted against expending funds to join with other jurisdictions to petition the Supreme Court for certiorari.2 As a result of the 9th Circuit’s decision, the Town needs to update its 5G policy. The proposed policy makes revision to ensure that the policy is compliant with the F.C.C.’s regulation.

1 City of Portland v. United States (9th Cir. 2020) 969 F. 3d 1020. 2 Other jurisdictions have sought Supreme Court review.

Memo to: Mayor Beckman Honorable Members, Corte Madera Town Council Page 3

We’re happy to answer any questions individually from Council members on this issue prior to the meeting or at the meeting.

A.S.A. A.D. Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 1 of 82

FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

CITY OF PORTLAND, No. 18-72689 Petitioner, FCC No. v. 18-111

UNITED STATES OF AMERICA; FEDERAL COMMUNICATIONS COMMISSION, Respondents,

CITY AND COUNTY OF SAN FRANCISCO; CITY OF ARCADIA; CITY OF BELLEVUE; CITY OF BROOKHAVEN; CITY OF BURIEN; CITY OF BURLINGAME; CITY OF CHICAGO; CITY OF CULVER CITY; CITY OF DUBUQUE; CITY OF GIG HARBOR; CITY OF KIRKLAND; CITY OF LAS VEGAS; CITY OF LINCOLN; CITY OF MONTEREY; CITY OF PHILADELPHIA; CITY OF PIEDMONT; CITY OF PLANO; CITY OF SAN BRUNO; CITY OF SAN JACINTO; CITY OF SAN JOSE; CITY OF SANTA MONICA; CITY OF SHAFTER; COUNTY OF LOS ANGELES; HOWARD COUNTY; MICHIGAN MUNICIPAL LEAGUE; CTIA - THE WIRELESS Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 2 of 82

2 CITY OF PORTLAND V.UNITED STATES

ASSOCIATION; TOWN OF FAIRFAX; TOWN OF HILLSBOROUGH, Intervenors.

AMERICAN ELECTRIC POWER No. 19-70490 SERVICE CORPORATION; CENTERPOINT ENERGY HOUSTON FCC No. ELECTRIC, LLC; DUKE ENERGY 18-111 CORPORATION; ENTERGY CORPORATION; ONCOR ELECTRIC DELIVERY COMPANY, LLC; SOUTHERN COMPANY; TAMPA ELECTRIC COMPANY; VIRGINIA ELECTRIC AND POWER COMPANY; XCEL ENERGY SERVICES INC., Petitioners,

FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES OF AMERICA, Respondents,

VERIZON; US TELECOM—THE BROADBAND ASSOCIATION, Respondents-Intervenors. Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 3 of 82

CITY OF PORTLAND V. UNITED STATES 3

SPRINT CORPORATION, No. 19-70123 Petitioner, FCC No. v. 18-133

FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES OF AMERICA, Respondents,

CITY OF BOWIE, Maryland; CITY OF EUGENE, Oregon; CITY OF HUNTSVILLE, Alabama; CITY OF WESTMINSTER, Maryland; COUNTY OF MARIN, California; CITY OF ARCADIA, California; CULVER CITY, California; CITY OF BELLEVUE, California; CITY OF BURIEN, Washington; CITY OF BURLINGAME, California; CITY OF GIG HARBOR, Washington; CITY OF ISSAQUAH, Washington; CITY OF KIRKLAND, Washington; CITY OF LAS VEGAS, Nevada; CITY OF LOS ANGELES, California; CITY OF MONTEREY, California; CITY OF ONTARIO, California; CITY OF PIEDMONT, California; CITY OF PORTLAND, Oregon; CITY OF SAN JACINTO, California; CITY OF SAN JOSE, California; CITY OF SHAFTER, California; CITY OF YUMA, Arizona; Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 4 of 82

4 CITY OF PORTLAND V.UNITED STATES

COUNTY OF LOS ANGELES, California; TOWN OF FAIRFAX, California; CITY OF NEW YORK, New York, Intervenors.

VERIZON COMMUNICATIONS, INC., No. 19-70124 Petitioner, FCC No. v. 18-133

FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES OF AMERICA, Respondents,

CITY OF ARCADIA, California; CITY OF BELLEVUE, California; CITY OF BURIEN, Washington; CITY OF BURLINGAME, California; CITY OF GIG HARBOR, Washington; CITY OF ISSAQUAH, Washington; CITY OF KIRKLAND, Washington; CITY OF LAS VEGAS, Nevada; CITY OF LOS ANGELES, California; CITY OF MONTEREY, California; CITY OF ONTARIO, California; CITY OF PIEDMONT, California; CITY OF PORTLAND, Oregon; CITY OF SAN JACINTO, California; CITY OF SAN JOSE, California; CITY OF SHAFTER, Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 5 of 82

CITY OF PORTLAND V. UNITED STATES 5

California; CITY OF YUMA, Arizona; COUNTY OF LOS ANGELES, California; CULVER CITY, California; CITY OF NEW YORK, New York; TOWN OF FAIRFAX, California, Intervenors.

PUERTO RICO TELEPHONE No. 19-70125 COMPANY, INC., Petitioner, FCC No. 18-133 v.

FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES OF AMERICA, Respondents,

CITY OF ARCADIA, California; CITY OF BELLEVUE, California; CITY OF BURIEN, Washington; CITY OF BURLINGAME, California; CITY OF GIG HARBOR, Washington; CITY OF ISSAQUAH, Washington; CITY OF KIRKLAND, Washington; CITY OF LAS VEGAS, Nevada; CITY OF LOS ANGELES, California; CITY OF MONTEREY, California; CITY OF ONTARIO, California; CITY OF PIEDMONT, California; CITY OF PORTLAND, Oregon; CITY OF SAN Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 6 of 82

6 CITY OF PORTLAND V.UNITED STATES

JACINTO, California; CITY OF SAN JOSE, California; CITY OF SHAFTER, California; CITY OF YUMA, Arizona; COUNTY OF LOS ANGELES, California; CULVER CITY, California; TOWN OF FAIRFAX, California; CITY OF NEW YORK, New York, Intervenors.

CITY OF SEATTLE, Washington; CITY No. 19-70136 OF TACOMA, Washington; KING COUNTY, Washington; LEAGUE OF FCC No. OREGON CITIES; LEAGUE OF 18-133 CALIFORNIA CITIES; LEAGUE OF ARIZONA CITIES AND TOWNS, Petitioners,

FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES OF AMERICA, Respondents,

CITY OF BAKERSFIELD, California; CITY OF COCONUT CREEK, Florida; CITY OF LACEY, Washington; CITY OF OLYMPIA, Washington; CITY OF RANCHO PALOS VERDES, California; CITY OF TUMWATER, Washington; COLORADO COMMUNICATIONS AND Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 7 of 82

CITY OF PORTLAND V. UNITED STATES 7

UTILITY ALLIANCE; RAINIER COMMUNICATIONS COMMISSION; COUNTY OF THURSTON, Washington; CITY OF ARCADIA, California; CITY OF BELLEVUE, Washington; CITY OF BURIEN, Washington; CITY OF BURLINGAME, California; CITY OF GIG HARBOR, Washington; CITY OF ISSAQUAH, Washington; CITY OF KIRKLAND, Washington; CITY OF LAS VEGAS, Nevada; CITY OF LOS ANGELES, California; CITY OF MONTEREY, California; CITY OF ONTARIO, California; CITY OF PIEDMONT, California; CITY OF PORTLAND, Oregon; CITY OF SAN JACINTO, California; CITY OF SAN JOSE, California; CITY OF SHAFTER, California; CITY OF YUMA, Arizona; COUNTY OF LOS ANGELES, California; CULVER CITY, California; TOWN OF FAIRFAX, California; CITY OF NEW YORK, New York, Intervenors.

CITY OF SAN JOSE, California; CITY No. 19-70144 OF ARCADIA, California; CITY OF BELLEVUE, Washington; CITY OF FCC No. BURIEN, Washington; CITY OF 18-133 BURLINGAME, California; CULVER CITY, California; TOWN OF FAIRFAX, California; CITY OF GIG HARBOR, Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 8 of 82

8 CITY OF PORTLAND V. UNITED STATES

Washington; CITY OF ISSAQUAH, Washington; CITY OF KIRKLAND, Washington; CITY OF LAS VEGAS, Nevada; CITY OF LOS ANGELES, California; COUNTY OF LOS ANGELES, California; CITY OF MONTEREY, California; CITY OF ONTARIO, California; CITY OF PIEDMONT, California; CITY OF PORTLAND, Oregon; CITY OF SAN JACINTO, California; CITY OF SHAFTER, California; CITY OF YUMA, Arizona, Petitioners,

FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES OF AMERICA, Respondents,

CTIA - THE WIRELESS ASSOCIATION; COMPETITIVE CARRIERS ASSOCIATION; SPRINT CORPORATION; VERIZON COMMUNICATIONS, INC.; CITY OF NEW YORK, NEW YORK; WIRELESS INFRASTRUCTURE ASSOCIATION, Intervenors. Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 9 of 82

CITY OF PORTLAND V. UNITED STATES 9

CITY AND COUNTY OF SAN No. 19-70145 FRANCISCO, Petitioner, FCC No. 18-133 v.

FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES OF AMERICA, Respondents.

CITY OF HUNTINGTON BEACH, No. 19-70146 Petitioner, FCC No. v. 18-133

FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES OF AMERICA, Respondents,

CITY OF ARCADIA, California; CITY OF BELLEVUE, Washington; CITY OF BURIEN, Washington; CITY OF BURLINGAME, California; CITY OF GIG HARBOR, Washington; CITY OF ISSAQUAH, Washington; CITY OF KIRKLAND, Washington; CITY OF LAS VEGAS, Nevada; CITY OF LOS ANGELES, California; CITY OF MONTEREY, California; CITY OF Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 10 of 82

10 CITY OF PORTLAND V. UNITED STATES

ONTARIO, California; CITY OF PIEDMONT, California; CITY OF PORTLAND, Oregon; CITY OF SAN JACINTO, California; CITY OF SAN JOSE, California; CITY OF SHAFTER, California; CITY OF YUMA, Arizona; COUNTY OF LOS ANGELES, California; CULVER CITY, California; TOWN OF FAIRFAX, California; CITY OF NEW YORK, New York, Intervenors.

MONTGOMERY COUNTY, Maryland, No. 19-70147 Petitioner, FCC No. v. 18-133

FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES OF AMERICA, Respondents.

AT&T SERVICES, INC., No. 19-70326 Petitioner, FCC Nos. v. 18-133 83-fr-51867 FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES OF AMERICA, Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 11 of 82

CITY OF PORTLAND V. UNITED STATES 11

Respondents,

CITY OF BALTIMORE, Maryland; CITY AND COUNTY OF SAN FRANCISCO, California; MICHIGAN MUNICIPAL LEAGUE; CITY OF ALBUQUERQUE, New Mexico; NATIONAL LEAGUE OF CITIES; CITY OF BAKERSFIELD, California; TOWN OF OCEAN CITY, Maryland; CITY OF BROOKHAVEN, Georgia; CITY OF COCONUT CREEK, Florida; CITY OF DUBUQUE, Iowa; CITY OF EMERYVILLE, California; CITY OF FRESNO, California; CITY OF LA VISTA, Nebraska; CITY OF LACEY, Washington; CITY OF MEDINA, Washington; CITY OF OLYMPIA, Washington; CITY OF PAPILLION, Nebraska; CITY OF PLANO, Texas; CITY OF RANCHO PALOS VERDES, California; CITY OF ROCKVILLE, Maryland; CITY OF SAN BRUNO, California; CITY OF SANTA MONICA, California; CITY OF SUGARLAND, Texas; CITY OF TUMWATER, Washington; CITY OF WESTMINSTER, Maryland; COLORADO COMMUNICATIONS AND UTILITY ALLIANCE; CONTRA COSTA COUNTY, California; COUNTY OF MARIN, California; INTERNATIONAL Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 12 of 82

12 CITY OF PORTLAND V. UNITED STATES

CITY/COUNTY MANAGEMENT ASSOCIATION; INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION; LEAGUE OF NEBRASKA MUNICIPALITIES; NATIONAL ASSOCIATION OF TELECOMMUNICATIONS OFFICERS AND ADVISORS; RAINIER COMMUNICATIONS COMMISSION; THURSTON COUNTY, Washington; TOWN OF CORTE MADERA, California; TOWN OF HILLSBOROUGH, California; TOWN OF YARROW POINT, Washington; CITY OF ARCADIA, California; CITY OF BELLEVUE, Washington; CITY OF BURIEN, Washington; CITY OF BURLINGAME, California; CITY OF CULVER CITY , California; CITY OF GIG HARBOR, Washington; CITY OF ISSAQUAH, Washington; CITY OF KIRKLAND, Washington; CITY OF LAS VEGAS, Nevada; CITY OF LOS ANGELES, California; CITY OF MONTEREY, California; CITY OF ONTARIO, California; CITY OF PIEDMONT, California; CITY OF PORTLAND, Oregon; CITY OF SAN JACINTO, California; CITY OF SAN JOSE, California; CITY OF SHAFTER, California; CITY OF YUMA, Arizona; COUNTY OF LOS ANGELES, California; TOWN OF FAIRFAX, Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 13 of 82

CITY OF PORTLAND V. UNITED STATES 13

California, Intervenors.

AMERICAN PUBLIC POWER No. 19-70339 ASSOCIATION, Petitioner, FCC Nos. 18-133 v. 83-fr-51867

FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES OF AMERICA, Respondents,

CITY OF ALBUQUERQUE, New Mexico; NATIONAL LEAGUE OF CITIES; CITY OF BROOKHAVEN, Georgia; CITY OF BALTIMORE, Maryland; CITY OF DUBUQUE, Iowa; TOWN OF OCEAN CITY, Maryland; CITY OF EMERYVILLE, California; MICHIGAN MUNICIPAL LEAGUE; TOWN OF HILLSBOROUGH, California; CITY OF LA VISTA, Nebraska; CITY OF MEDINA, Washington; CITY OF PAPILLION, Nebraska; CITY OF PLANO, Texas; CITY OF ROCKVILLE, Maryland; CITY OF SAN BRUNO, California; CITY OF SANTA MONICA, California; CITY OF SUGARLAND, Texas; LEAGUE OF Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 14 of 82

14 CITY OF PORTLAND V. UNITED STATES

NEBRASKA MUNICIPALITIES; NATIONAL ASSOCIATION OF TELECOMMUNICATIONS OFFICERS AND ADVISORS; CITY OF BAKERSFIELD, California; CITY OF FRESNO, California; CITY OF RANCHO PALOS VERDES, California; CITY OF COCONUT CREEK, Florida; CITY OF LACEY, Washington; CITY OF OLYMPIA, Washington; CITY OF TUMWATER, Washington; TOWN OF YARROW POINT, Washington; THURSTON COUNTY, Washington; COLORADO COMMUNICATIONS AND UTILITY ALLIANCE; RAINIER COMMUNICATIONS COMMISSION; CITY AND COUNTY OF SAN FRANCISCO, California; COUNTY OF MARIN, California; CONTRA COSTA COUNTY, California; TOWN OF CORTE MADERA, California; CITY OF WESTMINSTER, Maryland, Intervenors.

CITY OF AUSTIN, Texas; CITY OF No. 19-70341 ANN ARBOR, Michigan; COUNTY OF ANNE ARUNDEL, Maryland; CITY OF FCC Nos. ATLANTA, Georgia; CITY OF 18-133 BOSTON, Massachusetts; CITY OF 83-FR-51867 CHICAGO, Illinois; CLARK COUNTY, Nevada; CITY OF COLLEGE PARK, Maryland; CITY OF DALLAS, Texas; Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 15 of 82

CITY OF PORTLAND V. UNITED STATES 15

DISTRICT OF COLUMBIA; CITY OF GAITHERSBURG, Maryland; HOWARD COUNTY, Maryland; CITY OF LINCOLN, Nebraska; MONTGOMERY COUNTY, Maryland; CITY OF MYRTLE BEACH, South Carolina; CITY OF OMAHA, Nebraska; CITY OF PHILADELPHIA, Pennsylvania; CITY OF RYE, New York; CITY OF SCARSDALE, New York; CITY OF SEAT PLEASANT, Maryland; CITY OF TAKOMA PARK, Maryland; TEXAS COALITION OF CITIES FOR UTILITY ISSUES; MERIDIAN TOWNSHIP, Michigan; BLOOMFIELD TOWNSHIP, Michigan; MICHIGAN TOWNSHIPS ASSOCIATION; MICHIGAN COALITION TO PROTECT PUBLIC RIGHTS-OF- WAY, Petitioners,

FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES OF AMERICA, Respondents,

CITY OF ALBUQUERQUE, New Mexico; NATIONAL LEAGUE OF CITIES; CITY OF BROOKHAVEN, Georgia; CITY OF BALTIMORE, Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 16 of 82

16 CITY OF PORTLAND V.UNITED STATES

Maryland; CITY OF DUBUQUE, Iowa; TOWN OF OCEAN CITY, Maryland; CITY OF EMERYVILLE, California; MICHIGAN MUNICIPAL LEAGUE; TOWN OF HILLSBOROUGH, California; CITY OF LA VISTA, Nebraska; CITY OF MEDINA, Washington; CITY OF PAPILLION, Nebraska; CITY OF PLANO, Texas; CITY OF ROCKVILLE, Maryland; CITY OF SAN BRUNO, California; CITY OF SANTA MONICA, California; CITY OF SUGARLAND, Texas; LEAGUE OF NEBRASKA MUNICIPALITIES; NATIONAL ASSOCIATION OF TELECOMMUNICATIONS OFFICERS AND ADVISORS; CITY OF BAKERSFIELD, California; CITY OF FRESNO, California; CITY OF RANCHO PALOS VERDES, California; CITY OF COCONUT CREEK, Florida; CITY OF LACEY, Washington; CITY OF OLYMPIA, Washington; CITY OF TUMWATER, Washington; TOWN OF YARROW POINT, Washington; THURSTON COUNTY, Washington; COLORADO COMMUNICATIONS AND UTILITY ALLIANCE; RAINIER COMMUNICATIONS COMMISSION; CITY AND COUNTY OF SAN FRANCISCO, California; COUNTY OF MARIN, California; CONTRA COSTA COUNTY, California; TOWN OF Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 17 of 82

CITY OF PORTLAND V. UNITED STATES 17

CORTE MADERA, California; CITY OF WESTMINSTER, Maryland,

Intervenors.

CITY OF EUGENE, Oregon; CITY OF No. 19-70344 HUNTSVILLE, Alabama; CITY OF BOWIE, Maryland, FCC Nos. Petitioners, 18-133 83-FR-51867 v.

FEDERAL COMMUNICATIONS OPINION COMMISSION; UNITED STATES OF AMERICA, Respondents,

CITY OF ALBUQUERQUE, New Mexico; NATIONAL LEAGUE OF CITIES; CITY OF BROOKHAVEN, Georgia; CITY OF BALTIMORE, Maryland; CITY OF DUBUQUE, Iowa; TOWN OF OCEAN CITY, Maryland; CITY OF EMERYVILLE, California; MICHIGAN MUNICIPAL LEAGUE; TOWN OF HILLSBOROUGH, California; CITY OF LA VISTA, Nebraska; CITY OF MEDINA, Washington; CITY OF PAPILLION, Nebraska; CITY OF PLANO, Texas; CITY OF ROCKVILLE, Maryland; CITY Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 18 of 82

18 CITY OF PORTLAND V. UNITED STATES

OF SAN BRUNO, California; CITY OF SANTA MONICA, California; CITY OF SUGARLAND, Texas; LEAGUE OF NEBRASKA MUNICIPALITIES; NATIONAL ASSOCIATION OF TELECOMMUNICATIONS OFFICERS AND ADVISORS; CITY OF BAKERSFIELD, California; CITY OF FRESNO, California; CITY OF RANCHO PALOS VERDES, California; CITY OF COCONUT CREEK, FLORIDA; CITY OF LACEY, Washington; CITY OF OLYMPIA, Washington; CITY OF TUMWATER, Washington; TOWN OF YARROW POINT, Washington; THURSTON COUNTY, Washington; COLORADO COMMUNICATIONS AND UTILITY ALLIANCE; RAINIER COMMUNICATIONS COMMISSION; CITY AND COUNTY OF SAN FRANCISCO, California; COUNTY OF MARIN, California; CONTRA COSTA COUNTY, California; TOWN OF CORTE MADERA, California; CITY OF WESTMINSTER, Maryland,

Intervenors. Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 19 of 82

CITY OF PORTLAND V. UNITED STATES 19

On Petitions for Review of Orders of the Federal Communications Commission

Argued and Submitted February 10, 2020 Pasadena, California

Filed August 12, 2020

Before: Mary M. Schroeder, Jay S. Bybee, and Daniel A. Bress, Circuit Judges.

Opinion by Judge Schroeder; Partial Dissent by Judge Bress

SUMMARY*

Federal Communications Commission

The panel granted in part, and denied in part, petitions for review of three orders of the Federal Communications Commission (“FCC”) concerning the newest generation of wireless broadband technology known as “5G” that requires the installation of thousands of “small cell” wireless facilities.

Petitioners seeking review of the FCC orders are numerous local governments, public and private power utilities, and wireless service providers. The orders were promulgated under the authority of the Telecommunications Act of 1996 (the “Act”). The orders, issued in 2018, are

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 20 of 82

20 CITY OF PORTLAND V. UNITED STATES

known as the Small Cell Order, the Moratoria Order, and the One Touch Make-Ready Order. The first two orders spelled out the limits on local governments’ authority to regulate telecommunications providers. The third order was intended to prevent owners and operators of utility poles from discriminatorily denying or delaying 5G and broadband service providers access to the poles.

The panel held that, given the deference owed to the agency in interpreting and enforcing the Act, the Small Cell and Moratoria Orders were, with the exception of one provision, in accord with the congressional directive in the Act, and not otherwise arbitrary, capricious, or contrary to law. The exception was the Small Cell Order provision dealing with the authority of local governments in the area of aesthetic regulations. The panel held that to the extent that provision required small cell facilities to be treated in the same manner as other types of communications services, the regulation was contrary to the congressional directive that allowed different regulatory treatment among types of providers, so long as such treatment did not “unreasonably discriminate among providers of functionally equivalent services.” 47 U.S.C. § 332(c)(7)(B)(i)(I). The panel also held that the FCC’s requirement that all aesthetic criteria must be “objective” lacked a reasoned explanation. The panel rejected constitutional challenges under the Fifth and Tenth Amendments to both orders.

The panel upheld the One Touch Make-Ready Order. The panel concluded that the FCC reasonably interpreted Section 224 of the Act as a matter of law, and the Order was not otherwise arbitrary or capricious. The panel rejected petitioners’ challenges to four secondary aspects of the Order: rules for overlashing, preexisting violations, self-help, and Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 21 of 82

CITY OF PORTLAND V. UNITED STATES 21

rate reform. The panel held that the rules were an appropriate exercise of the FCC’s regulatory authority under the Act.

The panel granted the petitions for review as to the FCC’s requirement in the Small Cell Order that aesthetic regulations be “no more burdensome” than requirements applied to other infrastructure deployment, and the FCC’s requirement that all local aesthetic regulations be “objective,” vacated those portions of the rule, and remanded them to the FCC. The petition of Montgomery County was dismissed as moot. As to all other challenges, the panel denied the petitions for review.

Judge Bress joined the majority opinion except as to Part III.A.1, which upheld the FCC’s decision to preempt any fees charged to wireless or telecommunications providers that exceed a locality’s costs for hosting communications equipment. In Judge Bress’s view, the FCC did not adequately explain how all above-cost fees amounted to an “effective prohibition” on telecommunications or wireless service under 47 U.S.C. §§ 253(a) and 332(c)(7)(B)(i)(I). Judge Bress would vacate this prohibition and remand. Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 22 of 82

22 CITY OF PORTLAND V. UNITED STATES

COUNSEL

Petitioners/Intervenors

Joseph Van Eaton (argued) and John Gasparini, Best Best & Krieger LLP, Washington, D.C.; Gail A. Karish, Best Best & Krieger LLP, Los Angeles, California; Michael J. Watza, Kitch Drutchas Wagner Valitutti & Sherbrook, Detroit, Michigan; for Petitioners/Intervenors Cities of San Jose, Arcadia, Bellevue, Burien, Burlingame, Culver City, Gig Harbor, Issaquah, Kirkland, Las Vegas, Los Angeles, Monterey, Ontario, Piedmont, Portland, San Jacinto, Shafter, Yuma, Albuquerque, Brookhaven, Baltimore, Dubuque, Emeryville, La Vista, Medina, Papillion, Plano, Rockville, San Bruno, Santa Monica, Sugarland, Austin, Ann Arbor, Atlanta, Boston, Chicago, College Park, Dallas, Gaithersburg, Lincoln, Myrtle Beach, Omaha, Philadelphia, Rye, Scarsdale, Seat Pleasant, and Takoma Park; Los Angeles, Anne Arundel, Clark, Howard, and Montgomery Counties; Towns of Fairfax, Ocean City, and Hillsborough; Townships of Meridian and Bloomfield, Michigan Townships Association; District of Columbia; Michigan Coalition to Protect Public Rights-of- Way, National League of Cities, Michigan Municipal League, League of Nebraska Municipalities, and Texas Coalition of Cities for Utility Issues.

Sean A. Stokes (argued) and James Baller, Baller Stokes & Lide PC, Washington, D.C., for Petitioner American Public Power Association.

Eric P. Gotting (argued), Keller and Heckman LLP, Washington, D.C., for Petitioners/Intervenors Montgomery County, Maryland; and International Municipal Lawyers Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 23 of 82

CITY OF PORTLAND V. UNITED STATES 23

Association; International City/County Management Association.

Eric B. Langley (argued) and Robin F. Bromberg, Langley & Bromberg LLC, Birmingham, Alabama, for Petitioners American Electric Power Service Corporation, Duke Energy Corporation, Entergy Corporation, Oncor Electric Delivery Company, Southern Company, and Tampa Electric Company.

Joshua S. Turner (argued), Sara M. Baxenburg, and Boyd Garriott, Wiley Rein LLP, Washington, D.C.; Thomas Power, Senior Vice President and General Counsel, CTIA - The Wireless Association, Washington, D.C.; for Intervenor CTIA - The Wireless Association.

Claire J. Evans (argued) and Christopher S. Huther, Wiley Rein LLP, Washington, D.C., for Intervenor US Telecom—The Broadband Association.

Kenneth S. Fellman and Gabrielle A. Daley, Kissinger & Fellman PC, Denver, Colorado; Robert C. May III and Michael D. Johnston, Telecom Law Firm PC, San Diego, California; for Petitioners/Intervenors Cities of Bakersfield, Coconut Creek, Fresno, Lacey, Olympia, Rancho Palos Verdes, Seattle, Tacoma, Tumwater; Town of Yarrow Point; King and Thurston Counties; League of Oregon Cities, League of California Cities, League of Arizona Cities and Towns, Colorado Communications and Utility Alliance, and Rainier Communications Commission.

Brett H. Freedson, Charles A. Zdebski, and Robert J. Gastner, Eckert Seamans Cherin & Mellott LLC, Washington, D.C., for Petitioners CenterPoint Energy Houston Electric and Virginia Electric and Power Company. Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 24 of 82

24 CITY OF PORTLAND V. UNITED STATES

David D. Rines and Kevin M. Cookler, Lerman Senter PLLC, Washington, D.C., for Petitioner Xcel Energy Services.

Christopher J. Wright and E. Austin Bonner, Harris Wiltshire & Grannis LLP, Washington, D.C., for Petitioner/Intervenor Sprint Corporation.

Sean A. Lev and Frederick Gaston Hall, Kellogg Hansen Todd Figel & Frederick P.L.L.C., Washington, D.C., for Petitioner AT&T Services.

Henry Weissmann, Munger Tolles & Olson LLP, Los Angeles, California; Jonathan Meltzer, Munger Tolles & Olson LLP, Washington, D.C.; for Petitioner/Intervenor Verizon Communications.

Megan L. Brown and Jeremy J. Broggi, Wiley Rein LLP, Washington, D.C., for Petitioner Puerto Rico Telephone Company.

Tillman L. Lay and Jeffrey M. Bayne, Spiegel & McDiarmid LLP, Washington, D.C., Dennis J. Herrera, City Attorney; Theresa L. Mueller, Chief Energy and Telecommunications Deputy; William K. Sanders, Deputy City Attorney; Office of the City Attorney, San Francisco, California; for Petitioners/Intervenors Cities of Eugene, Huntsville, Bowie, Westminster; Town of Corte Madera; and Counties of San Francisco, Marin, and Contra Costa.

Michael E. Gates, City Attorney; Michael J. Vigliotta, Chief Assistant City Attorney; Office of the City Attorney, Huntington Beach, California; for Petitioner City of Huntington Beach. Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 25 of 82

CITY OF PORTLAND V. UNITED STATES 25

Nancy L. Werner, General Counsel, Alexandria, Virginia, as and for Intervenor National Association of Telecommunications Officers and Advisors.

Zachary W. Carter, Corporation Counsel; Richard Dearing, Claude S. Platton, and Elina Druker, Attorneys; Office of Corporation Counsel, New York, New York; for Intervenor City of New York.

Amanda Kellar and Charles W. Thompson Jr., Rockville, Maryland; for Intervenors International Municipal Lawyers Association and International City/County Management Association.

Jennifer P. Bagg, Harris Wiltshire & Grannis LLP, Washington, D.C., for Intervenor Competitive Carriers Association.

Thomas Scott Thompson and Patrick Curran, Davis Wright Tremaine LLP, Washington, D.C.; for Intervenor Wireless Infrastructure Association.

Respondents

Sarah E. Citrin (argued), Scott M. Noveck (argued), and James M. Carr (argued), Counsel; Richard K. Welch, Deputy Associate General Counsel; Jacob M. Lewis, Associate General Counsel; Thomas M. Johnson Jr., General Counsel; Federal Communications Commission, Washington, D.C.; Robert B. Nicholson, Adam D. Chandler and Patrick M. Kuhlmann, Attorneys; Michael F. Murray, Deputy Assistant Attorney General; Andrew C. Finch, Principal Deputy Assistant Attorney General; Makan Delrahim, Assistant Attorney General; United States Department of Justice, Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 26 of 82

26 CITY OF PORTLAND V. UNITED STATES

Washington, D.C.; for Respondents United States of America and Federal Communications Commission.

Amici Curiae

James E. Moore and Tim R. Shattuck, Woods Fuller Shultz & Smith P.C., Sioux Falls, South Dakota, for Amicus Curiae Missouri Basin Municipal Power Agency.

Ellen F. Rosenblum, Attorney General; Benjamin Gutman, Solicitor General; Rolf C. Moan, Senior Assistant Attorney General; Office of the Attorney General, Salem, Oregon; for Amicus Curiae State of Oregon.

Thomas E. Montgomery, County Counsel; Jeffrey P. Michalowski, Senior Deputy; Office of County Counsel, San Diego, California; for Amicus Curiae County of San Diego.

Spencer Q. Parsons, Beery Elsner & Hammond LLP, Portland, Oregon, for Amici Curiae Nebraska Municipal Power Pool and Lincoln Electric System.

Gerit F. Hull, Jennings Strouss & Salmon PLC, Washington, D.C.; Lisa G. McAlister, SVP & General Counsel for Regulatory Affairs; American Municipal Power Inc., Columbus, Ohio; for Amicus Curiae American Municipal Power Inc.

Emily Fisher, Aryeh Fishman, and Amanda Aspatore, Edison Electric Institute, Washington, D.C.; Brett Kilbourne, Vice President Policy and General Counsel, Utilities Technology Council, Arlington, Virginia; Jeffrey L. Sheldon and Stephen J. Rosen, Levine Blaszak Block & Boothby LLP, Washington, D.C.; Brian O’Hara, Senior Director Regulatory Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 27 of 82

CITY OF PORTLAND V. UNITED STATES 27

Issues, National Rural Electric Cooperative Association, Arlington, Virginia; for Amici Curiae Edison Electric Institute, Utilities Technology Council, and National Rural Electric Cooperative Association.

Matthew A. Love, Van Ness Feldman LLP, Seattle, Washington, for Amicus Curiae Northwest Public Power Association.

Sblend A. Sblendorio, Mallory L. Homewood, and Cara Mae Acibo, Hoge Fenton Jones & Appel Inc., Pleasanton, California, for Amicus Curiae Berkshire-Litchfield Environmental Council.

Terry M. Jarrett, Healy Law Offices LLC, Jefferson City, Missouri, for Amici Curiae Iowa Association of Municipal Utilities Association, Missouri Association of Municipal Utilities, and Arkansas Municipal Power Association.

W. Scott Snyder, Ogden Murphy Wallace, Seattle, Washington, for Amicus Curiae Association of Washington Cities.

David A. Rosenfeld, Weinberg Roger & Rosenfeld, Alameda, California, for Amici Curiae Communications Workers of America, National Digital Inclusion Alliance, and Public Knowledge.

Jane Luckhardt, General Counsel, Northern California Power Agency, Roseville, California; Jody Lamar Finklea, General Counsel & Chief Legal Officer; Dan O’Hagan, Assistant General Counsel & Regulatory Compliance Counsel; Florida Municipal Power Agency, Tallahassee, Florida; James N. Horwood and Latif M. Nurani, Spiegel & McDiarmid LLP, Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 28 of 82

28 CITY OF PORTLAND V. UNITED STATES

Washington, D.C.; for Amici Curiae Northern California Power Agency; Municipal Electric Power Association of Virginia; Florida Municipal Electric Association, Inc.; City of Fort Meade; Fort Pierce Utilities Authority; City of Jacksonville Beach (Beaches Energy Services); Utility Board of the City of Key West, Florida (Keys Energy Services); Kissimmee Utility Authority; City of Lakeland (Lakeland Electric); City of Mount Dora; Utilities Commission, City of New Smyrna Beach; Orlando Utilities Commission; and City of Wauchula. Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 29 of 82

CITY OF PORTLAND V. UNITED STATES 29

OPINION

SCHROEDER, Circuit Judge:

I. INTRODUCTION

These matters arise out of the wireless revolution that has taken place since 1996 when Congress passed amendments to the Telecommunications Act to support the then nascent technology. The revolution now represents the triumph of cellular technology over just about everything else in telecommunications services.

The newest generation of wireless broadband technology is known as “5G” and requires the installation of thousands of “small cell” wireless facilities. These facilities have become subject to a wide variety of local regulations. The Federal Communications Commission (FCC) in 2018 therefore promulgated orders relating to the installation and management of small cell facilities, including the manner in which local governments can regulate them. The principal orders we review here thus constitute the FCC’s contemporary response to these technological and regulatory developments. These orders were promulgated under the authority of a statute Congress enacted very early in the era of cellular communication, the Telecommunications Act of 1996, to encourage the expansion of wireless communications.

That expansion has been met with some resistance where 5G is concerned, however, particularly from local governments unhappy with the proliferation of cell towers and other 5G transmission facilities dotting our urban landscapes. Petitioners seeking review of the FCC orders Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 30 of 82

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thus include numerous local governments, the lead Petitioner being the City of Portland, Oregon. Also unhappy with the expanded installation of 5G technology contemplated by the FCC’s orders are public and private power utilities, whose utility poles are often used for wireless facility deployment. Here as well are wireless service providers, who largely support the FCC’s orders, but argue the FCC should have gone even further in restricting the authority of state and local governments.

Before us are three FCC orders, issued in 2018, that deal with myriad issues arising from the application of a twentieth century statute to twenty-first century technology. The two orders we deal with first are known as the Small Cell Order and the Moratoria Order. Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Inv., 33 FCC Rcd. 9088 (2018) [hereinafter Small Cell Order]; Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Inv., 33 FCC Rcd. 7705, 7775–91 (2018) [hereinafter Moratoria Order]. The Orders spell out the limits on local governments’ authority to regulate telecommunications providers.

The FCC’s statutory authority for limiting local regulation on the deployment of this technology is contained in Sections 253(a) and 332(c)(7) of the Act and reflects congressional intent in 1996 to expand deployment of wireless services. Those provisions authorize the FCC to preempt any state and local requirements that “prohibit or have the effect of prohibiting” any entity from providing telecommunications services. See 47 U.S.C. § 253(a), (d).

Many of the issues before us concern whether challenged provisions constitute excessive federal regulation outside the Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 31 of 82

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scope of that congressional preemption directive, as understood by our Circuit’s leading case interpreting the statute, Sprint Telephony PCS, L.P. v. County of San Diego, 543 F.3d 571 (9th Cir. 2008) (en banc). We conclude that, given the deference owed to the agency in interpreting and enforcing this important legislation, the Small Cell and Moratoria Orders are, with the exception of one provision, in accord with the congressional directive in the Act, and not otherwise arbitrary, capricious, or contrary to law. See 5 U.S.C. § 706(2)(A).

The exception is the Small Cell Order provision dealing with the authority of local governments in the area of aesthetic regulations. We hold that to the extent that provision requires small cell facilities to be treated in the same manner as other types of communications services, the regulation is contrary to the congressional directive that allows different regulatory treatment among types of providers, so long as such treatment does not “unreasonably discriminate among providers of functionally equivalent services.” 47 U.S.C § 332(c)(7)(B)(i)(I). We also hold that the FCC’s requirement that all aesthetic criteria must be “objective” lacks a reasoned explanation.

The third FCC order before us is intended to prevent owners and operators of utility poles from discriminatorily denying or delaying 5G and broadband service providers access to the poles. Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Inv., 33 FCC Rcd. 7705, 7705–91 (2018). Known as the “One- Touch Make-Ready Order,” it was issued pursuant to the Pole Attachment Act originally passed in 1978 and expanded in the wake of the Telecommunications Act of 1996. 47 U.S.C. § 224. Section 224 of that Act allows utilities to deny access Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 32 of 82

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to pole attachers under some circumstances. Several utilities object to discrete aspects of the One-Touch Make-Ready Order. We uphold the Order, concluding that the FCC reasonably interpreted Section 224 as a matter of law, and the Order is not otherwise arbitrary or capricious.

II. STATUTORY AND INTERPRETIVE FRAMEWORK AND BACKGROUND

What we know as 5G technology is so named because it is the fifth generation of cellular wireless technology. It is seen as transformational because it provides increased bandwidth, allows more devices to be connected at the same time, and is so fast that connected devices receive near instantaneous responses from servers.

Although 5G transmits data at exceptionally fast speeds, it does so over relatively short distances. For this reason, wireless providers must use smaller power-base stations in more locations, as opposed to the fewer, more powerful base stations used for 4G data transmission. These smaller base stations, known as “small cells,” are required in such numbers that 5G technology is currently being deployed on a city-by- city basis. See generally Brian X. Chen, What You Need to Know About 5G in 2020, N.Y. Times (Jan. 8, 2020), https://www.nytimes.com/2020/01/08/technology/personalt ech/5g-mobile-network.html?searchResultPosition=1; Clare Duffy, What Is 5G? Your Questions Answered, CNN Business (Mar. 6, 2020), https://www.cnn.com/interactive/ 2020/03/business/what-is-5g/index.html; Sascha Segan, What Is 5G?, PCMag (Apr. 6, 2020), https://www.pcmag.com/ne ws/what-is-5g. The prospective proliferation of “small cell” structures throughout our cities, coupled with the inevitable efforts of local governments to regulate their looks and Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 33 of 82

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location, gave rise to the FCC’s Small Cell and Moratoria Orders—with which local governments are not entirely happy and which were issued under the general provisions of a decades-old statute.

The heart of these proceedings therefore lies in the early efforts of Congress, and now the FCC, to balance the respective roles of the federal government and local agencies in regulating telecommunications services for a rapidly changing technological world. A key statute in these proceedings is Section 253 of the Act. Entitled “Removal of Barriers to Entry,” it reflects Congress’s intent to encourage expansion of telecommunication service. Section 253(a) provides that “[n]o state or local statute or regulation . . . may prohibit or have the effect of prohibiting . . . telecommunications service.” 47 U.S.C. § 253(a). At the same time Section 253(c) provides that state or local governments can manage public rights-of-way and require reasonable compensation for their use. 47 U.S.C. § 253(c).

In dealing with mobile services, Section 332(c)(7) similarly preserves local zoning authority while recognizing some specific limitations on traditional authority to regulate wireless facilities. 47 U.S.C. § 332(c)(7); see City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 115 (2005) (explaining that section 332(c)(7) “imposes specific limitations on the traditional authority of state and local governments to regulate the location, construction, and modification of . . . facilities”). Section 332(c)(7) also contains a limitation on local authority nearly identical to Section 253(a). See 47 U.S.C. § 332(c)(7)(B)(i)(II) (“The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government . . . shall not prohibit or have the effect of Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 34 of 82

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prohibiting the provision of personal wireless services.”). The other major limitation on local authority relates to ensuring fair treatment of different services. See 47 U.S.C. § 332(c)(7)(B)(i)(I). Under that limitation, local governments “shall not unreasonably discriminate among providers of functionally equivalent services.” Id. Section 332(c)(7) further requires that state or local governments act on requests for placement of personal wireless service facilities “within a reasonable period of time.” 47 U.S.C. § 332(c)(7)(B)(ii). We deal with issues pertaining to all of these provisions in the challenges to the Small Cell and Moratoria Orders.

In the One-Touch Make-Ready Order, the FCC was concerned with facilitating attachment of new cellular facilities to existing utility poles. The FCC’s authority to regulate pole attachments is found in Section 224 of the Act. That section provides that the FCC “shall regulate the rates, terms, and conditions” imposed upon pole attachments by utilities to ensure that such rates are “just and reasonable,” 47 U.S.C. § 224(b)(1), but expressly exempts entities “owned by the Federal Government or any State” from its definition of “utility,” id. § 224(a)(1). Section 224 also requires utilities to allow service providers “nondiscriminatory access” to its poles, id. § 224(f)(1), permitting utilities to deny access “on a non-discriminatory basis where there is insufficient capacity and for reasons of safety, reliability and generally applicable engineering purposes,” id. § 224(f)(2).

In their petitions, private utilities contend several provisions of the One-Touch Make-Ready Order violate Section 224 or are otherwise arbitrary or capricious in restricting a utility’s ability to deny access to attachers. We uphold this Order in all respects. Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 35 of 82

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As relevant to this litigation, the most disputed provision of the Act has been Section 253(a). The provision says that “[n]o State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” 47 U.S.C. § 253(a). Soon after the Act’s passage, the FCC decided California Payphone Association, concerning the location of the now antiquated, but formerly ubiquitous, payphone technology. 12 FCC Rcd. 14,191 (1997). The FCC considered a local regulation that prohibited the installation of payphones on private property outdoors, and held it was not an actual or effective prohibition of services, because phones could still be installed indoors on public or private property, and outdoors on public property. Id. at 14,210. The FCC therefore held the requirement did not “materially inhibit[]” payphone service. Id. at 14,210.

This court’s leading case interpreting Section 253 is our en banc decision in Sprint, 543 F.3d 571. We there straightened out an errant panel decision that had been concerned with the phrase “no State or local statute or regulation . . . may prohibit . . . ” in Section 253. That decision read the phrase to mean that Section 253 preempted any state or local regulation that “might possibly” have the effect of prohibiting service. Id. at 578. We held in Sprint that more than “the mere possibility” of prohibition was required to trigger preemption. Id. There must be an actual effect, and we recognized the continuing validity of the material inhibition test from California Payphone. See id. (“[W]e note that our interpretation is consistent with the FCC’s.”). Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 36 of 82

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Many of the issues we must decide here involve contentions by Petitioners that various provisions of the Small Cell and Moratoria Orders limit state and local regulatory authority to a greater degree than that contemplated in the Act, as interpreted by California Payphone and Sprint. The application of the FCC’s “material inhibition” standard thus comes into play when we consider a number of the challenged provisions.

As a threshold issue, Local Government Petitioners argue that the FCC must demonstrate that an “actual prohibition” of services is occurring before preempting any municipal regulations, and that anything less than that showing is contrary to Section 253(a) and our decision in Sprint. We must reject this argument. The FCC’s application of its standard in the Small Cell and Moratoria Orders is consistent with Sprint, which endorsed the material inhibition standard as a method of determining whether there has been an effective prohibition. The FCC here made factual findings, on the basis of the record before it, that certain municipal practices are materially inhibiting the deployment of 5G services. Nothing more is required of the FCC under Sprint.

Local Government Petitioners raise a corollary general objection to the Small Cell and Moratoria Orders, contending that the FCC, without a reasoned explanation, has departed from its prior approach in California Payphone, and has made it much easier to show an effective prohibition. California Payphone’s material inhibition standard remains controlling, however. The FCC has explained that it applies a little differently in the context of 5G, because state and local regulation, particularly with respect to fees and aesthetics, is more likely to have a prohibitory effect on 5G technology than it does on older technology. The reason is that when Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 37 of 82

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compared with previous generations of wireless technology, 5G is different in that it requires rapid, widespread deployment of more facilities. See, e.g., Small Cell Order ¶ 53 (explaining that “even fees that might seem small in isolation have material and prohibitive effects on deployment, particularly when considered in the aggregate given the nature and volume of anticipated Small Wireless Facility deployment” (footnote omitted)). The differences in the FCC’s new approach are therefore reasonably explained by the differences in 5G technology.

We therefore turn to Petitioners’ challenges to specific provisions of the Orders. We deal with the Small Cell and Moratoria Orders together. Both Orders relate to the ways state and local governments can permissibly regulate small cell facilities.

III. SMALL CELL AND MORATORIA ORDERS

The FCC initiated proceedings leading to the Small Cell and Moratoria Orders in response to complaints from wireless service providers. They reported that a variety of state and local regulations and practices were delaying and inhibiting small cell deployment nationwide in violation of Section 253. Those state and local governments now seek review of the Orders. We here summarize the challenged provisions of each Order.

The FCC issued the Moratoria Order in August 2018, and the Small Cell Order the following month. Two principal types of state and local regulation the agency considered relate to fees and aesthetic requirements. The FCC concluded such requirements frequently materially inhibit 5G deployment. The FCC found that when state and local Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 38 of 82

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governments charge excessive fees for wireless facility applications, the cumulative impact of such charges amounts to an effective prohibition of deployment in other parts of the country. The FCC therefore limited the fees that a state or local government can assess, above a safe harbor amount, to the government’s approximate costs. Specifically, the fee is permissible only if it is a “reasonable approximation of the state or local government’s costs” of processing applications and managing the rights-of-way. Small Cell Order ¶ 50.

With respect to local aesthetic requirements, the FCC concluded such regulations were materially inhibiting small cell deployment within the meaning of the California Payphone standard. A key provision of the Small Cell Order sets out the applicable criteria: aesthetic restrictions are preempted unless they are (1) reasonable, (2) no more burdensome than requirements placed on other facilities, and (3) objective and published in advance. Id. ¶ 86. To qualify as a “reasonable” aesthetic requirement, an ordinance must be both “technically feasible and reasonably directed to avoiding or remedying the intangible public harm of unsightly or out- of-character deployments.” Id. ¶ 87.

Another important provision of the Small Cell Order modified the rules for when local jurisdictions have to act on wireless permitting requests, the so-called “shot clock” rules. Nearly a decade earlier, the FCC adopted the first shot clock rules, requiring zoning authorities to decide applications for wireless facility deployment on existing structures within ninety days, and all other applications for zoning permits within 150 days. Petition for Declaratory Ruling, 24 FCC Rcd. 13,994 (2009) [hereinafter 2009 Order]; see City of Arlington v. FCC, 668 F.3d 229, 235–36 (5th Cir. 2012), aff’d, 569 U.S. 290 (2013). Under the 2009 Order, when a Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 39 of 82

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local zoning authority exceeded a shot clock, it was presumed that the municipality violated the statutory requirement to respond within a reasonable time. City of Arlington, 668 F.3d at 236. When a local zoning authority failed to act within the proscribed time, the permit applicant could then file a lawsuit seeking a declaration that the city’s delay was unreasonable, and the city would have the opportunity to rebut the presumed statutory violation. 2009 Order ¶¶ 37–38.

The 2018 Small Cell Order broadens the application of these shot clocks to include all telecommunications permits, not just zoning permits, and it shortens the shot clocks. State and local governments now have sixty days to decide applications for installations on existing infrastructure, and ninety days for all other applications. Small Cell Order ¶¶ 104–05, ¶ 132, ¶ 136. The Order does not add enforcement mechanisms. If a state or local government misses a permitting deadline, the applicant still must seek an injunction.

In the Moratoria Order, the FCC found that municipal actions that halt 5G deployment, deemed “moratoria,” violate Section 253(a) of the Act when they effectively prohibit the deployment of 5G technology. The FCC recognized two general moratoria categories: express and de facto. As with the Small Cell Order, the Moratoria Order does not specifically preempt or invalidate any particular state or local requirement. See Moratoria Order ¶ 150. (“[W]e do not reach specific determinations on the numerous examples discussed by parties in our record . . . .”). It lays out the applicable standards. Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 40 of 82

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A. Challenges to the Small Cell Order

Following the publication of the Small Cell Order, Local Government and Public Power Petitioners filed these petitions for review, asserting a number of legal challenges. We evaluate these challenges under the Administrative Procedure Act by examining whether “an agency’s decreed result [is] within the scope of its lawful authority,” and whether “the process by which it reaches [a given] result [is] logical and rational.” Michigan v. EPA, 135 S. Ct. 2699, 2706 (2015) (internal quotation marks omitted); see 5 U.S.C. § 706(2)(A), (C). Where terms of the Telecommunications Act are ambiguous, we defer to the FCC’s reasonable interpretations. City of Arlington, 569 U.S. at 296–97; see Chevron v. Nat. Res. Def. Council, 467 U.S. 837 (1984). And where the FCC is departing from prior policy, we look to see if it acknowledged that it was changing positions, and gave “good reasons for the new policy.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).

To the extent that Petitioners challenge factual findings, we review them for substantial evidence, that is, evidence “a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal quotation marks omitted). “[W]hatever the meaning of substantial in other contexts, the threshold for such evidentiary sufficiency is not high.” Id. (internal quotation marks omitted).

The Small Cell Order covers three major subjects and sets out the standards by which local regulations will be judged in determining whether they are preempted. Local Government Petitioners are not happy with any of them. The subjects are Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 41 of 82

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fees, aesthetics, and the time for approving permit applications (shot clocks). We deal with each of them in turn.

1. Fees

State and local governments generally charge a wireless service provider fees to deploy facilities in their jurisdictions. These fees include one-time fees for new wireless facility deployment, as well as recurring annual fees on existing facilities in the public rights-of-way. The FCC concluded in the Small Cell Order that some of these fees were so excessive that they were effectively prohibiting the nationwide deployment of 5G technology and were therefore preempted. The Order places conditions on fees above a certain level to avoid preemption: fees must be: “(1) a reasonable approximation of the state or local government’s costs, (2) [with] only objectively reasonable costs . . . factored into those fees, and (3) . . . no higher than the fees charged to similarly-situated competitors in similar situations.” Small Cell Order ¶ 50 (footnote omitted).

The Small Cell Order does not require a cost basis for all fees to avoid preemption. There is a safe harbor. Fees are presumptively lawful if, for each wireless facility, application fees are less than $500, and recurring fees are less than $270 per year. Id. ¶ 79. If fees exceed those levels, they are not automatically preempted, but can be justified. Localities may charge fees above these levels where they can demonstrate that their actual costs exceed the presumptive levels. Id. ¶ 80 & n.234.

The FCC offers two principal rationales for limiting fees above the safe harbor to costs. When local governments charge fees in excess of their costs, they take funds of Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 42 of 82

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wireless service providers that would otherwise be used for additional 5G deployment in other jurisdictions. Statements in the record from wireless service providers, and an empirical study, are cited to support the conclusion that limiting fees will lead to additional, faster deployment of 5G technology throughout the country. See Small Cell Order ¶¶ 61–64. The FCC explained that high fees also reduce the availability of service in the jurisdiction charging the fee. Id. ¶ 53. The FCC points to numerous, geographically diverse cities, where excessive fees are delaying deployment of 5G services. In one example, deployment had to be completely halted when a city tried to charge a one-time fee of $20,000 per small cell, with an additional recurring annual fee of $6000.

Local Government Petitioners challenge the fee limitations on a number of grounds. Their primary argument is that there is no rational connection between whether a particular fee is higher than that particular city’s costs, and whether that fee is prohibiting service.

The FCC did not base its fee structure on a determination that there was a relationship between particular cities’ fees and prohibition of services. The FCC instead found that above-cost fees, in the aggregate, were having a prohibitive effect on a national basis. See id. ¶ 53 (explaining that “even fees that might seem small in isolation have material and prohibitive effects on deployment, particularly when considered in the aggregate given the nature and volume of anticipated Small Wireless Facility deployment” (footnote omitted)).

The FCC found there was no readily-available alternative. See id. ¶ 65 n.199 (explaining that “the record does not reveal Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 43 of 82

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an alternative, administrable approach to evaluating fees without a cost-based focus”). Administrability is important. In Mayo Foundation for Medical Education & Research v. United States, 562 U.S. 44, 58–59 (2011), the Supreme Court explained that an agency’s rule “easily” satisfies Chevron’s step two, reasonable interpretation requirement, when the agency concluded that its new approach would “improve administrability.” As the FCC explained here, its cost-based standard would prevent excessive fees and the effective prohibition of 5G services in many areas across the country.

Local Government Petitioners are implicitly suggesting an alternative approach that would require an examination of the prohibitive effect of fees in each of the 89,000 state and local governments under the FCC’s jurisdiction, a nearly impossible administrative undertaking. Local Government Petitioners do not contend that this is required by statute, nor do they offer any other workable standard. The FCC here made the requisite “rational connection between the facts found and the choice made.” Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962).

Our colleague’s partial dissent offers one legal objection to the fee regulation. The dissent quotes language from our decision in Qwest Communications Inc. v. City of Berkeley, 433 F.3d 1253, 1257 (9th Cir. 2006), overruled on other grounds by Sprint Telephony, 543 F.3d at 578, to suggest that the FCC’s cost based fee regulation should be vacated because it contravenes our precedent. In Qwest, however, we considered a challenge to a particular city’s fee that was not based on costs. On the basis of then-binding authority we held that city’s fee was preempted, but cautioned that we were not holding that “all non-cost based fees are automatically preempted.” Id. at 1257. Instead we said that Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 44 of 82

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in reviewing a particular city’s ordinance “courts must consider substance of the particular regulation at issue.” Id.

The Qwest language has no relevance in this case where we review a nationwide administrative regulation the FCC has adopted, after careful study and notice and comment, that invokes Section 253(a) to preempt only those fees above the safe harbor that exceed municipalities’ costs. There has been no “automatic preemption” of “all non-cost based fees.”

Local Government Petitioners also attack the FCC’s key factual finding, that high fees were inhibiting deployment both within and outside the jurisdictions charging the fees. Yet, the FCC had statements from wireless service providers, which explained that the providers have been unable to deploy small cells in many cities because both original application and annually recurring fees were excessive. For example, AT&T reported it has been unable to deploy in Portland due to recurring annual fees ranging from $3500 to $7500 per node.

The record also supports the FCC’s factual conclusion that high fees in one jurisdiction can prevent deployment in other jurisdictions. In addition to relying on firsthand reports of service providers, the FCC looked to an academic study, known as the Corning Study. A group of economists there estimated that limiting 5G fees could result in carriers reinvesting an additional $2.4 billion in areas “previously not economically viable.” The FCC reasonably relied upon this study to support its conclusion that a nationwide reduction in fees in “must-serve,” heavily-populated areas, would result in significant additional deployment of 5G technology in other less lucrative areas of the country. The FCC therefore has easily met the standard of offering “more than a mere Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 45 of 82

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scintilla” of evidence to support its conclusions regarding the prohibitive effect of above-cost fees. See Biestek, 139 S. Ct. at 1154.

We also conclude that the FCC’s fee limitation does not violate Section 253(c) of the Act, which ensures that cities receive “fair and reasonable” compensation for use of their rights-of-way. The FCC explained that the calculation of actual, direct costs is a well-accepted method of determining reasonable compensation, and further, that a standard lacking a cost anchor would “have left providers entirely at the mercy of effectively unconstrained requirements of state or local governments.” Small Cell Order ¶ 74. The statute requires that compensation be “fair and reasonable;” this does not mean that state and local governments should be permitted to make a profit by charging fees above costs. 47 U.S.C. § 253(c). The FCC’s approach to fees is consistent with the language and intent of Section 253(c) and is reasonably explained.

Moreover, the FCC did not require local jurisdictions to justify all fees with costs. The FCC adopted presumptively permissible fee levels. In setting those levels, the FCC looked to a range of sources, including state laws that limit fees. See Small Cell Order ¶ 78, ¶ 79 n.233. Local Government Petitioners argue that the FCC was in effect, setting rates, and that it was arbitrary and capricious to do so, when it could reference only a few state laws. The FCC was not setting rates, however; it was determining a level at which fees would be so clearly reasonable that justification was not necessary, and litigation could be avoided. The presumptive levels are not arbitrary and capricious. Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 46 of 82

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2. Aesthetics

Local governments have always been concerned about where utilities’ infrastructure is placed and what it looks like. When Congress enacted the 1996 Telecommunications Act, it wanted to ensure state and local governments grant fair access to new technologies, and not prefer incumbent service providers over new entrants. Congress recognized that state and local governments could effect such preferential treatment through a wide array of regulations, including regulations on aesthetics. An important provision to prevent this is Section 332(c)(7)(B)(i)(I). It requires that “[t]he regulation of . . . personal wireless service facilities by any State or local government . . . shall not unreasonably discriminate among providers of functionally equivalent services.” 47 U.S.C. § 332(c)(7)(B)(i)(I). The legislators who drafted this limitation on local regulation sought to ensure that state and local governments did not “unreasonably favor one competitor over another” in exercising their regulatory authority over facility deployments—including authority to regulate aesthetics. S. Rep. No. 104-230, at 209 (1996) (Conf. Rep.).

Because it recognized that state and local governments often have legitimate aesthetic reasons for accepting some deployments and rejecting others, Congress preempted only regulations that “unreasonably discriminate” among providers. 47 U.S.C. § 332(c)(7)(B)(i)(I). Because there were differences among providers, those who crafted Section 332(c) sought to preserve state and local governments’ “flexibility to treat facilities that create different . . . aesthetic . . . concerns differently, . . . even if those facilities provide functionally equivalent services.” S. Rep. No. 104-230, at 209 (1996) (Conf. Rep.). Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 47 of 82

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The provisions of the Small Cell Order dealing with aesthetics are among the most problematic. The Order says, “aesthetics requirements are not preempted if they are (1) reasonable, (2) no more burdensome than those applied to other types of infrastructure deployments, and (3) objective and published in advance.” Small Cell Order ¶ 86.

In the Small Cell Order, the FCC does not use Section 332’s unreasonable discrimination standard in describing the limits on local regulation of small cell infrastructure. The Small Cell Order says instead that small cell aesthetic requirements must be “no more burdensome” than those imposed on other providers. Id. For example, the FCC explained that its standard would prohibit a requirement that small cell carriers “paint small cell cabinets a particular color when like requirements were not imposed on similar equipment placed in the [right-of-way] by electric incumbents, competitive telephone companies, or cable companies.” Id. ¶ 84 n.241.

Local Government Petitioners point out that the FCC’s standard amounts to requiring similar treatment and does not take into account the differences among technologies. The FCC’s own justification for its provision bears this out. The FCC asserts that any application of different aesthetic standards to 5G small cells necessarily “evidences that the requirements are not, in fact, reasonable and directed at remedying the impact of the wireless infrastructure deployment.” Id. ¶ 87. Thus, in the FCC’s view, when a state or local government imposes different aesthetic requirements on 5G technology, those requirements are pretextual, unrelated to legitimate aesthetic goals, and must be preempted. Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 48 of 82

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Yet the statute expressly permits some difference in the treatment of different providers, so long as the treatment is reasonable. Indeed, we have previously recognized that Section 332(c)(7)(B)(i)(I) of the Telecommunications Act “explicitly contemplates that some discrimination among providers . . . is allowed.” MetroPCS, Inc. v. City & Cty. of S.F., 400 F.3d 715, 727 (9th Cir. 2005) (internal quotation marks omitted), abrogated on other grounds by T-Mobile S., LLC v. City of Roswell, 574 U.S. 293 (2015). We explained that to establish unreasonable discrimination, providers “must show that they have been treated differently from other providers whose facilities are similarly situated in terms of the structure, placement or cumulative impact as the facilities in question.” Id. (citation and internal quotation marks omitted). We explained that this “similarly-situated” standard is derived from the text of Section 332, and “strike[s] an appropriate balance between Congress’s twin goals of promoting robust competition and preserving local zoning authority.” Id. at 728.

The FCC’s regulation here departs from the carefully crafted balance found in Section 332 in at least two critical respects. Unlike Section 332, the regulation does not permit even reasonable regulatory distinctions among functionally equivalent, but physically different services. Under this Order, any local regulation of 5G technology that creates additional costs is necessarily preempted. The FCC’s limitation on local zoning authority differs from Section 332 in another respect. The Order requires the comparison of the challenged aesthetic regulation of 5G deployments to the regulation of any other infrastructure deployments, while the statute only requires a comparison with the regulation of functionally equivalent infrastructure deployments. Small Cell Order ¶ 87. The prohibition on local regulatory Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 49 of 82

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authority in the regulation is in that respect broader than that contemplated by Congress.

The Supreme Court has told us that “an agency may not rewrite clear statutory terms” and that this is a “core administrative-law principle.” Util. Air Regulatory Grp. v. EPA, 573 U.S. 302, 328 (2014). The FCC has contravened this principle here by placing a limitation on local zoning authority that departs from the explicit directive of Congress in Section 332.

Congress prohibited unreasonable discrimination, but permitted state and local governments to differentiate in the regulation of functionally equivalent providers with very different physical infrastructure. Members of Congress, in writing Section 332, recognized that applying different standards for physically different infrastructure deployments may, in some situations, be a reasonable use of local zoning authority. See S. Rep. No. 104-230, at 208 (1996) (Conf. Rep.) (“For example, the conferees do not intend that if a state or local government grants a permit in a commercial district, it must also grant a permit for a competitor’s 50-foot tower in a residential district.”). Requirements imposed on 5G technology are not always preempted as unrelated to legitimate aesthetic concerns just because they are “more burdensome” than regulations imposed on functionally equivalent services. We therefore conclude that the requirement in Paragraph 86 of the Small Cell Order, that limitations on small cells be “no more burdensome” than those applied to other technologies, must be vacated.

The other problematic limitation in the Small Cell Order is that locally-imposed aesthetic requirements be “objective and published in advance.” Small Cell Order ¶ 86. The Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 50 of 82

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Order defines “objective” to mean the local regulation “must incorporate clearly-defined and ascertainable standards, applied in a principled manner.” Id. ¶ 88.

The FCC explained that it adopted this requirement in response to wireless service providers’ complaints that they were being kept in the dark about what requirements they had to meet, and that those requirements were often so subjective that they had no readily ascertainable meaning. As the Order explained, the providers complained that they are unable to “design or implement rational plans for deploying Small Wireless Facilities if they cannot predict in advance what aesthetic requirements they will be obligated to satisfy to obtain permission to deploy a facility at any given site.” Id. The FCC responded by requiring aesthetic regulations to be “objective and published in advance.” Id. ¶ 86. The condition of advance publication is not seriously challenged, but the requirement that all local aesthetic regulation be “objective” gives rise to serious concerns.

Although the FCC was apparently responding to complaints of vague standards, Local Government Petitioners point out that the provision the FCC adopted bars any regulation other than one related to color, size, shape, and placement. It targets for preemption regulations focused on legitimate local objectives, such as ordinances requiring installations to conform to the character of the neighborhood. We do not see how all such regulations, designed like traditional zoning regulations to preserve characteristics of particular neighborhoods, materially inhibit, materially limit, or effectively prohibit the deployment of 5G technology.

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per se prohibit service. Sprint, 543 F.3d at 580. In Sprint, we recognized that “[a] certain level of discretion is involved in evaluating any application for a zoning permit,” and that while “[i]t is certainly true that a zoning board could exercise its discretion to effectively prohibit” service, “it is equally true (and more likely) that a zoning board would exercise its discretion only to balance the competing goals of an ordinance,” including “valid public goals such as safety and aesthetics.” Id.

The FCC’s position that all subjective aesthetic regulations constitute a per se material inhibition must therefore be viewed with considerable skepticism. Its justification for this limitation is that all subjective aesthetic requirements “substantially increase providers’ costs without providing any public benefit or addressing any public harm.” Small Cell Order ¶ 88. This conclusion, that all subjective standards are without public benefit and address no public harm, is unexplained and unexplainable.

The FCC says that its objectivity requirement is “feasible” because some states have adopted laws that prevent cities from applying subjective aesthetic requirements. See id. nn.246–47. As the FCC itself recognizes in its brief, aesthetic regulation of small cells should be directed to preventing the “intangible public harm of unsightly or out-of-character deployments.” Such harm is, at least to some extent, necessarily subjective. The fact that certain states have prohibited municipalities from enacting subjective aesthetic standards does not demonstrate that such standards never serve a public purpose. We conclude that the FCC’s requirement that all aesthetic regulations be “objective” is arbitrary and capricious. At the very least, the agency must explain the harm that it is addressing, and the extent to which Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 52 of 82

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it intends to limit regulations meant to serve traditional zoning objectives of preventing deployments that are unsightly or out of neighborhood character.

The only remaining argument of Local Government Petitioners with which we must deal is a challenge to the FCC’s requirement that aesthetic regulations be “reasonable.” Petitioners contend that it is unduly vague and overbroad. We read this requirement as the FCC does, however, and conclude that it should be upheld. The FCC explains that the reasonableness requirement results in preemption only if aesthetic regulations are not “technically feasible and reasonably directed” at remedying aesthetic harms. Id. ¶ 87. We recognized in Sprint that imposing an aesthetic requirement that is not technically feasible would constitute an effective prohibition of service under the Act. 543 F.3d at 580. The FCC’s justification for adopting this rule is therefore consistent with our case law, as well as congressional intent in enacting Sections 253 and 332, and is not unduly vague or overbroad.

In sum, the requirement that aesthetic regulations be “no more burdensome” than those imposed on other technologies is not consistent with the more lenient statutory standard that regulations not “unreasonably discriminate.” The requirement that local aesthetic regulations be “objective” is neither adequately defined nor its purpose adequately explained. On its face, it preempts too broadly. We therefore hold those provisions of Paragraph 86 of the Small Cell Order must be vacated. Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 53 of 82

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3. Shot Clocks

Since 2009, the FCC has set time limits, known as shot clocks, for local authorities to act on applications to deploy wireless facilities. In the Small Cell Order, the FCC made two major changes from the shot clocks provisions in the 2009 Order. It expanded the application of shot clock timing requirements from zoning applications to include all permitting decisions. It shortened the shot clock time. State and local governments now have sixty days to decide applications for installation on existing infrastructure, and ninety days for all other applications. Small Cell Order ¶¶ 104–05, ¶ 132, ¶ 136. The previous shot clocks were ninety days and 150 days respectively. Id. ¶ 104.

To remedy a violation of the 2009 requirements, the applicant had to seek an injunction. During this rulemaking, providers urged the FCC to adopt a “deemed granted” remedy, i.e. where, at the expiration of a shot clock, a permit would be “deemed granted” and the city would have to file a lawsuit to prevent the wireless service provider from beginning construction. The FCC ultimately did not change the remedy, so under the Small Cell Order, when a state or local government misses a shot clock deadline for deciding an application, the applicant must still seek injunctive relief. Wireless Service Provider Petitioners (Sprint et al.) now challenge the FCC’s refusal to adopt a deemed granted remedy for shot clock violations.

Local Government Petitioners are unhappy with the shortened time limits for decisions on applications, and with the expansion of shot clocks beyond zoning applications to all applications for deployment of wireless services. We consider their challenges first. Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 54 of 82

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Local Government Petitioners attack the shortened shot clock time frames, contending they arbitrarily restrict municipalities’ ability to conduct traditional zoning review that may take longer than the prescribed shot clock requirements. Petitioners criticize the FCC’s reliance on a limited survey of state and local laws, contending that those laws had unusual, shorter time frame requirements. Petitioners contend that most state and local governments will be unable to decide permits within the time limits prescribed under the Small Cell Order.

The FCC’s reliance on the survey of local laws and practices was reasonable, however, because it served only a limited purpose. The FCC used the survey only to support its unremarkable assertion that some municipalities “can complete reviews more quickly than was the case when the existing Section 332 shot clocks were adopted” in 2009. Small Cell Order ¶ 106. It must be remembered that the shot clock requirements create only presumptions. As under the 2009 Order, if permit applicants seek an injunction to force a faster decision, local officials can show that additional time is necessary under the circumstances. Id. ¶ 137; see id. ¶ 109, ¶ 127; see also City of Arlington, 668 F.3d at 259–61 (upholding previous FCC shot-clock presumptions).

The Telecommunications Act itself supports the expansion of shot clocks to all permitting decisions. Section 332(c)(7)(B)(ii) requires a decision to be made within a “reasonable period of time,” and applies both to applications “to place” wireless facilities as well as requests to “construct, or modify” such facilities. 47 U.S.C. § 332(c)(7)(B)(ii). Together, these enumerations of the categories of applications can reasonably be interpreted to authorize the application of Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 55 of 82

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shot clocks to building and construction permits, as well as zoning permits.

The FCC also provided sound reasons for this expansion. It explained that limiting shot clocks to zoning permits could lead states and localities to “delay their consideration of other permits (e.g., building, electric, road closure or other permits) to thwart the proposed deployment.” Small Cell Order ¶ 134 n.390. Courts interpreting Section 332 have reached a similar conclusion for the same reason. See, e.g., Ogden Fire Co. No. 1 v. Upper Chichester Twp., 504 F.3d 370, 395–96 (3d Cir. 2007) (rejecting the argument that the Act only applies to zoning permits, because the city could use other permits to delay construction of telecommunications infrastructure). The FCC acted well within its authority, and in accordance with the purpose of the Act, when it broadened the application of the shot clocks to encompass all permits, in order to prevent unreasonable delays.

For their part, Wireless Service Provider Petitioners contend that the FCC did not go far enough in modifying the shot clock requirements. Petitioners contend that the FCC should have adopted a deemed granted remedy for shot clock violations, and argue that the Small Cell Order’s factual findings compel the adoption of such a remedy.

This argument relies on a mischaracterization of the FCC’s factual findings. It is true that the FCC found that delays under the old shot clock regime were so serious they would “virtually bar providers from deploying wireless facilities.” Small Cell Order ¶ 126. But the FCC concluded that under its new shot clock rules, which shorten the time frames and expand the applicability of the rules, there will be no similar bar to wireless deployment. Id. ¶ 129. Because Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 56 of 82

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the FCC reasonably explained it has taken measures to reduce delays that would otherwise have occurred under its old regime, the factual findings here do not compel the adoption of a deemed granted remedy.

Wireless Service Providers next argue that the failure to adopt a deemed granted remedy is arbitrary and capricious because the FCC adopted the remedy in a different statutory context, the Spectrum Act, see 47 U.S.C. §§ 1451–57, and never explained why it did not do so here. It is understandable that the FCC gave no explanation of the difference because no comments raised any such disparity during the regulatory process. See Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 96 (2015) (explaining that an agency has an obligation to respond to significant comments received). There are critical differences between the language of the Telecommunications Act and the language of the Spectrum Act. The Telecommunications Act requires cities make a decision on applications within a reasonable period of time. See 47 U.S.C. § 332(c)(7)(B)(ii) (“A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time . . . .” (emphasis added)). The Spectrum Act provides that the local government must grant all qualifying applications. 47 U.S.C. § 1455(a)(1) (“[A] State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station . . . .” (emphasis added)). The deemed granted remedy in the FCC’s Spectrum Act order was in accordance with the text of the statute. There is no similar language in the Telecommunications Act. The FCC’s conclusion that a different remedy was appropriate here was therefore not arbitrary and capricious. Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 57 of 82

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4. Regulation of Property in the Public Rights of Way

Local governments generally exercise control over public rights-of-way for purposes of determining where installations such as utility poles and traffic lights should be placed. Some of these installations are owned by the municipalities themselves and some are owned by other entities, such as public and private utilities. Local Government and Public Power Petitioners (American Public Power Association et al.) argue that under Supreme Court authority, the preemption provision of Section 253(a) cannot apply to the municipal regulation of access to municipally-owned installations.

The Supreme Court has considered whether a provision of the National Labor Relations Act that preempts local regulation of labor relations prevented a municipality that was running a construction project from enforcing an otherwise valid collective bargaining agreement. Bldg. & Constr. Trades Council of Metro. Dist. v. Associated Builders & Contractors of Mass./R.I. Inc., 507 U.S. 218, 231–32 (1993). The Court explained that when a municipality is acting like a private business, and not acting as a regulator or policymaker, there can be no preemption by the NLRA because the municipality was not engaged in regulation of labor relations. Id. It was acting as a property owner.

Local Government Petitioners and Public Power Petitioners here contend that the municipalities are acting like private property owners in controlling access to, and construction of, facilities in public rights-of-way and that the Act’s preemption provision therefore does not apply. They thus contend the FCC lacks authority to regulate the fees they charge for access to the rights-of-way and to the property on Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 58 of 82

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the rights-of-way. They emphasize that the provisions of the Small Cell Order are intended to preempt not only regulation of installations owned by non-municipal entities but also regulation of installations owned by the municipalities themselves.

The issue thus becomes whether the FCC reasonably concluded that local jurisdictions are acting like private property owners when the jurisdictions charge fees or otherwise control the access to public rights-of-way. The FCC’s regulations in the Small Cell Order were premised on the agency’s determination that municipalities, in controlling access to rights-of-way, are not acting as owners of the property; their actions are regulatory, not propriety, and therefore subject to preemption. Small Cell Order ¶ 96. This is a reasonable conclusion based on the record. The rights-of- way, and manner in which the municipalities exercise control over them, serve a public purpose, and they are regulated in the public interest, not in the financial interests of the cities. As the FCC explained, the cities act in a regulatory capacity when they restrict access to the public rights-of-way because they are acting to fulfill regulatory objectives, such as maintaining aesthetic standards. Id.

This conclusion is supported by case law in this Circuit, where we have held that cities operate in a regulatory capacity when they manage access to public rights-of-way and public property thereon. See Olympic Pipe Line Co. v. City of Seattle, 437 F.3d 872, 881 (9th Cir. 2006). For example, in Olympic Pipe Line, we concluded that the City of Seattle operated in a regulatory capacity when it made certain demands of an oil pipeline that operated under city-owned streets in the public rights-of-way. Id.; see also Shell Oil Co. v. City of Santa Monica, 830 F.2d 1052, 1057–58 (9th Cir. Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 59 of 82

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1987) (holding that the City of Santa Monica does not act as a market participant when it sets franchise fees for pipelines that run under its streets).

The FCC’s conclusions here about the Order’s scope are reasonably explained, and do not violate any presumption against preemption of proprietary municipal conduct. Municipalities do not regulate rights-of-way in a proprietary capacity.

5. Section 224

The FCC adopted the Small Cell Order to remove barriers that would prevent 5G providers from accessing existing facilities for installation of small cells. These existing facilities often include utility poles. Public Power Petitioners, representing the interests of public power utilities, contend the Order cannot affect poles owned by public utilities, because Section 224 of the Telecommunications Act, relating to regulation of utility pole attachment rates, contains an express exclusion for government-owned utilities. See 47 U.S.C. § 224(a)(1).

The Small Cell Order is not a regulation of rates pursuant to Section 224, however. It is promulgated under the authority of Section 253 to ensure that state and local statutes do not have a prohibitory effect on telecommunications services. See 47 U.S.C. § 253(a); The FCC responded appropriately when it said, “[n]othing in Section 253 suggests such a limited reading, nor does Section 224 indicate that other provisions of the Act do not apply. We conclude that our interpretation of effective prohibition extends to fees for all government-owned property in the [right-of-way], including utility poles.” See Small Cell Order ¶ 92 n.253. Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 60 of 82

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Because Section 253 does not exempt public power utilities from its terms, the FCC reasonably relied on Section 253 to regulate such utilities.

6. Radiofrequency Exposure

More than twenty years ago, the FCC first adopted “radiofrequency standards,” (RF standards) which limit the amount of radiation that can be emitted from wireless transmitters. Guidelines for Evaluating the Envtl. Effects of Radiofrequency Radiation, 11 FCC Rcd. 15,123 (1996). The FCC is obligated to evaluate the potential impacts of human exposure to radiofrequency emissions under the National Environmental Policy Act. See Pub. L. 104-104, 110 Stat. 56 (1996); 47 C.F.R. § 1.1310. In the Telecommunications Act, Congress preempted all municipal regulation of radiofrequency emissions to the extent that such facilities comply with federal emissions standards. 47 U.S.C. § 332(c)(7)(B)(iv).

In 2013, the FCC opened a “Notice of Inquiry,” requesting comments on whether it should reassess its RF standards. See Reassessment of Fed. Commc’ncs Comm’n Radiofrequency Exposure Limits and Policies, 28 FCC Rcd. 3498 (2013). The agency did not take immediate action on that docket. During the later process leading up to the adoption of the Small Cell Order, Petitioner Montgomery County requested that the Commission complete its 2013 RF proceeding before adopting the Small Cell Order, and that it examine the potential effects of 5G technology on its RF standards. The FCC did not address its RF standards or close the 2013 docket before adopting the Small Cell Order. Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 61 of 82

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Petitioner Montgomery County now challenges the FCC’s Small Cell Order as unlawful because the FCC did not complete the 2013 docket review before adopting the Small Cell Order. After its petition was filed, however, the FCC adopted a new order examining radiofrequency exposure in the 5G environment, and concluded that it did not warrant changes to its 1996 standards. Challenges to the FCC’s failure to perform updated radiofrequency analysis, as contemplated by the 2013 docket, are therefore moot. See, e.g., Alliance for the Wild Rockies v. U.S. Dep’t of Agr., 772 F.3d 592, 601 (9th Cir. 2014).

There is no merit to Montgomery County’s further suggestion that we should penalize the FCC for what the County calls evasive litigation tactics in not acting earlier. The Supreme Court has emphasized that agencies have “significant latitude as to the manner, timing, content, and coordination of [their] regulations.” Massachusetts v. EPA, 549 U.S. 497, 533 (2007); see also Mobil Oil Expl. & Producing Se. Inc. v. United Distrib. Cos., 498 U.S. 211, 230–31 (1991) (“An agency enjoys broad discretion in determining how best to handle related, yet discrete, issues in terms of procedures and priorities. . . . [A]n agency need not solve every problem before it in the same proceeding.” (citations omitted)). More important, Montgomery County now has what it wanted; the FCC has examined the effects of 5G technology on its RF standards, and closed the 2013 docket. Any challenges to the adequacy of that final agency action must now be brought in a new proceeding.

B. Challenges to the Moratoria Order

The FCC adopted the Moratoria Order in response to complaints from a “broad array of large and small . . . Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 62 of 82

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wireless providers” that state and local ordinances and practices were either explicitly or having the effect of barring small cell deployment. Moratoria Order ¶ 143. In the Order, the FCC concluded that ordinances and practices were materially inhibiting small cell deployment, and the agency provided general standards to differentiate between permissible municipal regulations and impermissible “moratoria.” The Moratoria Order describes two general categories of moratoria: express and de facto. See id. ¶ 144. It defined express moratoria as “statutes, regulations, or other written legal requirements” in which state or local governments “expressly . . . prevent or suspend the acceptance, processing, or approval of applications or permits necessary for deploying telecommunications services.” Id. ¶ 145. The Order provided such bars to 5G deployment qualify as moratoria even though they are of a limited duration. Id.

The FCC then defined de facto moratoria as “state or local actions that are not express moratoria, but that effectively halt or suspend the acceptance, processing, or approval of applications or permits for telecommunications services or facilities in a manner akin to an express moratorium.” Id. ¶ 149. De facto moratoria violate Section 253 only when they unreasonably or indefinitely delay deployment. Id. ¶ 150.

The Order provides a new definition of Section 253(b)’s exemption for local regulations that protect “the public safety and welfare.” The Order permits what it describes as “emergency” bans on the construction of 5G facilities to protect public safety and welfare, but only where those laws are (1) “competitively neutral”, (2) necessary to address the emergency, disaster, or related public needs, and (3) target Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 63 of 82

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only those geographic areas affected by the disaster or emergency. Id. ¶ 157.

The City of Portland, not joined by the other Local Government Petitioners, challenges the Order with a handful of criticisms. The City’s primary contention is that the Order’s definitions of moratoria are overly broad, and therefore unreasonable, because, in the City’s view, the Moratoria Order preempts even benign seasonal restrictions on construction, such as freeze-and-frost laws. The City also contends that the Moratoria Order is an invalid application of Section 253, and self-contradictory in its definitions. None of these contentions have merit.

As an initial matter, we do not read the Moratoria Order as broadly as the City does in arguing that it would preempt all restrictions on construction, even seasonal ones that cause some delay in small cell deployment. The FCC carefully explained in the Order that municipal ordinances of general applicability will qualify as de facto moratoria only where the delay caused by the ordinances “continues for an unreasonably long or indefinite amount of time such that providers are discouraged from filing applications.” Id. ¶ 150. Municipal regulations on construction are therefore not preempted if they “simply entail some delay in deployment.” Id. The explanation is supported by the FCC’s assurance in the Order that municipalities retain authority over “construction schedul[ing].” Id. ¶ 160. The City’s concerns about the breadth of the Moratoria Order are therefore unfounded. The Order does not preempt necessary and customary restrictions on construction.

The City argues that the Moratoria Order preempts laws of general applicability, while Section 253 preempts only Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 64 of 82

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those that specifically target the provision of telecommunications services. By its terms, however, Section 253(a) is not so limited. It looks to both the language and impact of local regulations. It preempts all “local statute[s] or regulation[s], or other . . . legal requirement[s]” that prohibit or have the effect of prohibiting telecommunications services. 47 U.S.C. § 253(a).

Nor is the Moratoria Order contradictory in its definitions of express and de facto prohibitions. After examining the factual record, the FCC found that some localities had repeatedly re-authorized temporary bans on 5G installation to prohibit the installation of 5G cells indefinitely. Moratoria Order ¶ 148 n.546. The FCC therefore clarified that such explicit bans on 5G deployment qualify as express moratoria, even if they have a “limited, defined duration.” Id. ¶ 148. In a separate paragraph dealing with de facto prohibitions resulting from more general laws, the FCC explained that generally applicable laws, i.e. those that do not facially target small cells, are not preempted unless they cause a delay that “continues for an unreasonably long or indefinite amount of time.” Id. ¶ 150. There is nothing inconsistent or unexplained in the FCC’s separate definitions of express and de facto moratoria.

Finally, the City challenges the FCC’s purportedly narrow construction of Section 253(b)’s preemption exception for laws regulating safety and welfare. The FCC reasonably interpreted the phrase “public safety and welfare” in this context to permit emergency bans on 5G deployment where the regulations are competitively neutral and intended to remedy an ongoing public safety concern. The FCC explained such an interpretation was necessary to prevent the pretextual use of safety “as a guise for” preventing Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 65 of 82

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deployment. Id. ¶ 157. The Order is consistent with the FCC’s earlier interpretations of Section 253(b). See, e.g., New Eng. Pub. Commc’ns Council Petition for Preemption, 11 FCC Rcd. 19,713 (1996) (rejecting a broad interpretation of Section 253(b)).

The Moratoria Order is not arbitrary, capricious, or contrary to law on a facial basis. As the FCC has recognized, objections to specific applications of the Moratoria Order may be made on a case-by-case basis.

C. Constitutional Challenges to Both Orders

Local Government Petitioners also argue that the Small Cell and Moratoria Orders violate the Fifth and Tenth Amendments. First, Petitioners argue that the Small Cell Order is a physical taking in violation of the Fifth Amendment because it requires municipalities to grant providers access to municipal property, including rights-of- way, thereby creating a physical taking without just compensation. Petitioners compare the Small Cell Order to the New York state law at issue in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 421 (1982), which required landlords to permit cable television companies to install cables on their property. In Loretto, the Court held the law to be a physical taking because the installation resulted in “permanent occupations of land.” Id. at 430. Here, on the other hand, the Small Cell Order precludes state and local governments from charging unreasonable fees when granting applications, and it continues to allow municipalities to deny access to property for a number of reasons. See Small Cell Order ¶ 73 n.217. It does not compel access to property in a manner akin to Loretto. See id. Once again, challenges to Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 66 of 82

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particular applications of the Small Cell Order must be made on an as-applied basis.

Petitioners also argue that the Small Cell Order constitutes a regulatory taking by limiting cost recovery. The Supreme Court rejected a similar argument in FCC v. Florida Power Corp., 480 U.S. 245 (1987), holding that limiting cost recovery to actual costs did not result in a regulatory taking. Id. at 254. Because the Small Cell Order allows for the recovery of actual costs as well, the Order does not constitute a regulatory taking. See Small Cell Order ¶ 50 (explaining that the Small Cell Order continues to allow for fees that “are a reasonable approximation of the state or local government’s costs”).

Finally, Local Government Petitioners argue that, by requiring municipalities to respond to applications for use from 5G and broadband installers within a prescribed period of time or risk immediate control of its property, the Small Cell and Moratoria Orders compel Petitioners to enforce federal law in violation of the Tenth Amendment. In support, they cite National Federation of Independent Businesses v. Sebelius, 567 U.S. 519, 579–80 (2012) (plurality opinion), where the Court held that financial inducement had the effect of compelling states to enforce a federal program. Nothing like that is happening here. Instead, the FCC is interpreting and enforcing the 1996 Telecommunications Act, adopted by Congress pursuant to its delegated authority under the Commerce Clause, to ensure that municipalities are not charging small cell providers unreasonable fees. “If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States.” New York v. United States, 505 U.S. 144, 156 (1992). In addition, by preempting certain State Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 67 of 82

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and local policies, the FCC did not commandeer State and local officials in violation of the Tenth Amendment. Although their “language might appear to operate directly on the States,” the Orders—as applications of the Telecommunications Act—simply “confer[] on private entities . . . a federal right to engage in certain conduct subject only to certain (federal) constraints.” See Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1480 (2018) (citing Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378 (1992)). The Orders do not violate the Constitution.

IV. ONE-TOUCH MAKE-READY ORDER

In adopting the One-Touch Make-Ready Order, the FCC intended to make it faster and cheaper for broadband providers to attach to already-existing utility poles. See Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Inv., 33 FCC Rcd. 7705, ¶ 1 (2018) [hereinafter One-Touch Make-Ready Order]. Previously, only the pole owners could perform the preparatory work necessary for attachment. The main purpose of the Order is to create a new process, called one-touch make-ready, that allows new attachers themselves to do all the preparations. Id. ¶ 2.

Petitioners American Electric Power Service Corporation et al., a group of private utility companies, do not challenge the most important aspects of the One-Touch Make-Ready Order. Instead, they challenge four secondary aspects of the Order: rules for overlashing, preexisting violations, self-help, and rate reform. For the following reasons, we uphold them all. Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 68 of 82

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A. Overlashing

Overlashing is the process by which attachers affix additional cables or other wires to ones already attached to a pole. The overlashing rule prohibits a utility from requiring overlashers to conduct pre-overlashing engineering studies or to pay the utility’s cost of conducting such studies. Id. ¶ 119 n.444.

Petitioner utility companies first contend the overlashing rule contradicts the text of Section 224(f)(2), because the rule does not expressly say that a utility can exercise its statutory authority to deny access to poles for safety, capacity, reliability, or engineering reasons. See 47 U.S.C. § 224(f)(2). But the overlashing rule does not prevent utilities from exercising their statutory rights, nor has the FCC interpreted the overlashing rule to do so. It is speculative to suggest that it might do so in the future. See Texas v. United States, 523 U.S. 296, 300 (1998) (declining to consider claim because “it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” (internal quotation marks omitted)). The rule allows overlashers and utilities to negotiate the details of the overlashing arrangement, and is thus consistent with FCC’s longstanding policy. See Amendment of Comm’n’s Rules & Policies Governing Pole Attachments, 16 FCC Rcd. 12,103, ¶ 74 (2001).

Petitioners also argue that the overlashing rule undermines a utility’s Section 224(f)(2) authority to deny pole access, because it prevents utilities from requiring overlashers to provide certain information. We conclude that the overlashing rule does not impede a utility’s exercise of its statutory authority to deny access to poles. The rule Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 69 of 82

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authorizes utilities to require that overlashers give fifteen days’ notice to utilities prior to overlashing so that safety concerns can be addressed. One-Touch Make-Ready Order ¶¶ 115–16. The record shows that such notice provisions were frequently negotiated in the past on a voluntary basis and supports the FCC’s conclusion that such “an advance notice requirement has been sufficient to address safety and reliability concerns.” Id. ¶ 117. Indeed, in evaluating similar rules, the D.C. Circuit has already held that there is “no merit” to the claim that utilities cannot effectively exercise their rights under Section 224(f)(2) without “prior notice” of overlashing. See S. Co. Servs., Inc. v. FCC, 313 F.3d 574, 582 (D.C. Cir. 2002).

Finally, Petitioners argue that by prohibiting the utilities from charging overlashers for the cost of conducting pre- overlashing studies, the overlashing rule contradicts Section 224(d)(1). That section ensures cost recovery, but it does so only for attachments by cable television providers. See 47 U.S.C. § 224(d)(1)–(3). It does not apply here. The overlashing rule is thus a reasonable attempt by the FCC to prevent unnecessary costs for attachers.

B. Preexisting Violation Rule

The preexisting violation rule prohibits utilities from denying access to a new attacher solely because of a preexisting safety violation that the attacher did not cause. One-Touch Make-Ready Order ¶ 122. Petitioners contend that this is contrary to Section 224(f)(2), which allows utilities to deny access for “reasons of safety.” There is no conflict. Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 70 of 82

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The rule defines the term “reasons of safety” as preventing a utility from denying access to a new attacher because of a safety hazard created by a third party. Id. ¶ 122. Such denials have the effect of forcing an innocent would-be attacher to fix the violation. This rule prevents the utilities from passing the costs off on entities that did not cause the safety problem in the first place. The FCC confirmed at oral argument that the preexisting violation rule would not prevent utilities from rejecting proposed attachments that increase safety risks on a utility pole. The rule thus operates to prevent utilities from relying on preexisting violations pretextually to deny pole access to attachments that pose no greater safety risk than existing attachments. Because the preexisting violation rule reasonably defines the term “reasons of safety,” the FCC’s interpretation is reasonable.

C. Self-Help Rule

Prior to the One-Touch Make-Ready Order, attachers could hire contractors to perform preparatory work only on the lower portion of a pole. The self-help rule lets the utility- approved contractors prepare the entire pole for attachment. Id. ¶¶ 97–99. Petitioners argue that this expansion is contrary to Section 224(f)(2) because permitting attachers to hire contractors to work on the upper portion of poles jeopardizes safety. Yet, the rule has a number of provisions designed to mitigate any increased safety risks. For example, the rule gives a utility a ninety-day window to complete the pre- attachment work itself (thereby circumventing the rule’s contractor provisions entirely). Id. ¶ 99. The rule also requires new attachers to use a utility-approved contractor to perform the self-help work, and it requires the attacher to give the utility advanced notice of when the self-help work will Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 71 of 82

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occur so that the utility can be present if it wishes. Id. ¶¶ 99–106.

The rule represents a change from earlier rules on what self-help measures an attacher could perform, and the FCC explained that use of approved contractors would improve efficiency. Id. ¶ 97. A complaint process in the old self-help rule allowed new attachers to file complaints when a utility was not preparing the pole in a timely fashion. This did not encourage efficiency. It was an “insufficient tool for encouraging [a utility’s] compliance with [the FCC’s] deadlines.” Id. ¶ 98. The FCC reasonably views the deployment of new 5G technology to be a matter of “national importance,” justifying extension of the self-help rule to promote timely installations. Id. ¶ 97. The self-help rule is thus not arbitrary or capricious.

Petitioners also argue that the FCC lacks authority to regulate utility-owned pole attachments, since Section 224 defines “pole attachments” to include attachments to a utility- owned or -controlled pole. But the FCC has authority to promulgate “regulations to carry out the provisions of” Section 224, 47 U.S.C. § 224(b)(2), which includes regulations addressing “nondiscriminatory access” to utility poles, id. § 224(f)(1). It was reasonable for the FCC to conclude that it could not ensure nondiscriminatory access to poles without allowing make-ready work that would reposition utility attachments; otherwise, utilities could simply deny access to attachers based on pretextual reasons of insufficient capacity. See S. Co. v. FCC, 293 F.3d 1338, 1348 (11th Cir. 2002) (“[T]he FCC must have some way of assessing whether these needs are bona fide; otherwise, a utility could arbitrarily reserve space on a pole . . . and Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 72 of 82

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proceed to deny attachers space on the basis of ‘insufficient capacity.’”). Petitioners’ statutory challenge thus fails.

Petitioners mount a procedural challenge to the rule, arguing that the FCC did not comply with the APA’s notice requirement, 5 U.S.C. § 553, because it had not issued a proposed rule before announcing the final self-help rule. In raising the issue in a single footnote, petitioners have waived any challenge to the APA’s notice requirement. See Idaho Conservation League v. Bonneville Power Admin., 826 F.3d 1173, 1178 (9th Cir. 2016). In any event, the FCC’s Notice of Proposed Rulemaking (NPRM) sought proposals to speed up access to poles by allowing new attachers to prepare poles for attachment, and several commenters proposed expanding an attacher’s ability to perform preparatory work on the entire pole. We conclude that, at the very least, the self-help rule is a logical outgrowth of the NPRM. See Rybachek v. EPA, 904 F.2d 1276, 1288 (9th Cir. 1990) (explaining that an agency need not provide a new NPRM as long as the final published rule is “a logical outgrowth of the notice and comments received”). There is no reason to force the agency to begin the self-help rulemaking process anew.

D. Rate-Reform Rule

The rate reform rule continues regulatory efforts to remove rate disparities between telecommunications carriers who historically owned utility poles (so-called incumbent local exchange carriers, or ILECs) and telecommunications carriers who do not own utility poles (so-called competitive local exchange carriers, or CLECs). See Am. Elec. Power Serv. Corp. v. FCC, 708 F.3d 183, 185–86 (D.C. Cir. 2013). This rule establishes a presumption that all telecommunication carriers are similarly situated and thus Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 73 of 82

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entitled to the same rates. One-Touch Make-Ready Order ¶ 123. But if a utility successfully rebuts the presumption by showing that an ILEC continues to retain “net benefits” that other telecommunications providers do not enjoy, then the rate reform rule imposes a maximum rate that ILECs and utilities may negotiate. See id. ¶¶ 128–29.

Section 224(e)(1) authorizes the FCC to prescribe rates for pole attachments used by CLECs, but not ILECs. See 47 U.S.C. § 224(e)(1); see also id. § 224(a)(5). Petitioners therefore argue that the FCC lacks the authority to prescribe the same rates for ILECs. Section 224(b)(1), however, requires the FCC to set just and reasonable rates for all telecommunications carriers, and the FCC interpreted that to include ILECs as well as CLECs. See id. § 224(b)(1). The FCC has interpreted Section 224(b)(1) this way since 2011, and the D.C. Circuit upheld this interpretation some years ago. See Am. Elec. Power Serv. Corp., 708 F.3d at 188. And the Supreme Court has made clear that Section 224(e)(1) “work[s] no limitation” on the FCC’s more general ratemaking authority under Section 224(b)(1), which is the statutory provision that the agency invoked here. See Nat’l Cable & Telecomm. Ass’n, Inc. v. Gulf Power Co., 534 U.S. 327, 335–36 (2002).

This rule does, for the first time, set the same presumptive rates for ILECs and CLECs, and the FCC explained why its record supported such a rule. See One-Touch Make-Ready Order ¶ 126. A study by US Telecom showed that earlier efforts to decrease rate disparities between ILECs and CLECs had not been successful, and that historic differences between ILECs and CLECs that supported different rates in the past are now disappearing. See id. ¶¶ 124–26. The FCC provided Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 74 of 82

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an adequate justification for setting the same presumptive rates for all telecommunications providers.

Finally, Petitioners argue that the rate reform rule may result in their incomplete recovery of costs, because if a utility successfully rebuts the presumption that an ILEC should have the same rates as CLECs, the rule imposes a maximum rate ILECs and utilities may negotiate. See id. ¶ 129. The maximum negotiable rate is not arbitrary or capricious, however, because FCC set the rate at a value that is higher than both CLEC and cable operator rates, and the FCC had previously determined those rates were just, reasonable, and allowed full cost recovery. Id. ¶ 129 n.483; see also Implementation of Section 224 of the Act, 26 FCC Rcd. 5240, ¶ 183 (2011).

The rate reform rule, like the overlashing, preexisting violations, and self-help rules, is an appropriate exercise of the FCC’s regulatory authority under the Telecommunications Act.

V. CONCLUSION

We therefore hold that the FCC’s requirement in the Small Cell Order that aesthetic regulations be “no more burdensome” than regulations applied to other infrastructure deployment is contrary to the controlling statutory provision. See 47 U.S.C. § 332(c)(7)(B)(i)(II). We also hold that the FCC’s requirement that all local aesthetic regulations be “objective” is not adequately explained and is therefore arbitrary and capricious. We therefore GRANT the petitions as to those requirements, VACATE those portions of the rule and REMAND them to the FCC. The petition of Montgomery County is DISMISSED as moot. As to all Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 75 of 82

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other challenges, the petitions are DENIED. Each party to bear its own costs.

BRESS, Circuit Judge, dissenting in part:

The majority opinion carefully addresses an array of legal challenges to a series of FCC Orders designed to accelerate the deployment of 5G service. I join the court’s fine opinion except as to Part III.A.1, which upholds the FCC’s decision to preempt any fees charged to wireless or telecommunications providers that exceed a locality’s costs for hosting communications equipment. In my view, the FCC on this record has not adequately explained how all above- cost fees amount to an “effective prohibition” on telecommunications or wireless service under 47 U.S.C. §§ 253(a) and 332(c)(7)(B)(i)(II).

The Telecommunications Act of 1996 provides that “[n]o State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” 47 U.S.C. § 253(a). The Act contains a similar provision for wireless service. See id. § 332(c)(7)(B)(i)(II) (“The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof . . . shall not prohibit or have the effect of prohibiting the provision of personal wireless services.”).

The Act does not define what it means for a local policy to “have the effect of prohibiting” service. Since 1997, Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 76 of 82

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however, the FCC has interpreted the phrase to preempt local policies that “materially inhibit” the ability of providers “to compete in a fair and balanced legal and regulatory environment.” See Small Cell Order ¶ 35 (quoting Cal. Payphone Ass’n, 12 FCC Rcd. 14191, 14206 (1997)). This standard does not require a “complete or insurmountable” barrier to service. Id. But it does require that a local rule materially inhibit the ability to provide service based upon the “actual effects” of a state or local ordinance,” “not [ ] what effects the ordinance might possibly allow.” Sprint Telephony PCS, L.P. v. Cty. of San Diego, 543 F.3d 571, 578 (9th Cir. 2008) (en banc) (emphasis in original); see also id. (the statute requires an “actual or effective prohibition, rather than the mere possibility of prohibition”) (quotations omitted).

In the Small Cell Order, the FCC concluded that state and local fees materially inhibit telecommunications and wireless service when they exceed a locality’s reasonable cost of accommodating communications facilities. Small Cell Order ¶¶ 50, 53. The FCC cited evidence that certain exorbitant fees have stopped providers from offering service in certain locales. See, e.g., AT&T Aug. 10, 2018 Ex Parte Letter (AT&T “has not deployed any small cell sites in Portland, Oregon” due to the city’s $7,500 attachment fee and recurring fee of $3,500 to $5,500). The agency also found that “even fees that might seem small in isolation have material and prohibitive effects on deployment particularly considered in the aggregate.” Small Cell Order ¶ 53. This latter finding was based on the FCC’s determination that reduced fees generate cost-savings for providers, which enables them to use the newfound savings to expand wireless and telecommunications coverage. See id. ¶ 50, 55–56, 64–65 & nn.194–95. The agency estimated aggregate cost-savings Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 77 of 82

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from a reduction in fees to be over $2 billion, relying on a 2018 study by Corning, Inc. Id. ¶¶ 7, 60 & n.169.

The FCC carved out a safe harbor from the Order’s broad preemption rule for pole construction fees up to $1,000, attachment fees up to $500 (or $100 after a provider’s first five 5G facilities), and recurring fees up to $270. Id. ¶ 79. Fees may exceed the levels in the Small Cell Order’s safe harbor only if they reasonably approximate a locality’s costs, which include expenses “related to processing an application,” street closures, issuing “building or construction permits,” and access to and maintenance of public rights of way. Id. ¶¶ 32 n.71, 50 n.131, 79.1

No one doubts that exorbitant fees can impede the deployment of communications infrastructure. See, e.g., P.R. Tel. Co. v. Mun. of Guayanilla, 450 F.3d 9, 17–19 (1st Cir. 2006). But fees are prohibitive because of their financial effect on service providers, not because they happen to exceed a state or local government’s costs. Consider a $500 fee in Small Town A that exceeds the town’s costs by 1¢, and a $2,000 cost-based fee in Big City B. By the Small Cell Order’s logic, the lower fee is preempted, but the higher fee is not. It is hard to rationalize the former under the statute, which requires an actual and material inhibition of telecommunications or wireless service. Sprint Telephony, 543 F.3d at 578.

1 The Small Cell Order also interpreted the phrase “fair and reasonable compensation” in 47 U.S.C. § 253(c) to limit state and local fees to cost-recovery. Small Cell Order ¶ 55. But the agency declined to use this savings clause “as an independent prohibition on conduct that is not itself prohibited by [§] 253(a).” Id. ¶ 53 n.143; see also id. ¶ 50 n.132. Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 78 of 82

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Perhaps for this reason, this court over a decade ago “decline[d]” to hold “that all non-cost based fees are automatically preempted” under the Telecommunications Act. See Qwest Commc’ns Inc. v. City of Berkeley, 433 F.3d 1253, 1257 (9th Cir. 2006), overruled on other grounds by Sprint Telephony, 543 F.3d at 578.2 The FCC was aware of this precedent when it issued the Small Cell Order, but expressly “reject[ed] the view of those courts that have concluded that [§] 253(a) necessarily requires some additional showing beyond the fact that a particular fee is not cost-based.” See Small Cell Order ¶ 53 n.143 (citing Qwest, 433 F.3d at 1257).

On this record, the FCC has not adequately explained its basis for concluding, contra our precedent, that there is an intrinsic relationship between a fee’s approximation of costs and its prohibitive effect on service providers. The FCC’s reliance on individual fees it considers “excessive” tells us that fees can work effective prohibitions. But this does not on its own justify a blanket prohibition on all above-cost fees. A $7,500 fee in Portland may well prohibit service, but that is because of the financial toll it inflicts, not because it exceeds the city’s costs. And the FCC has not identified in the administrative record the frequency of above-cost fees or the amounts that localities have generally charged above cost.

2 Qwest applied a lenient standard that more easily allowed the FCC to show an effective prohibition, 433 F.3d at 1256, a standard our en banc court later rejected. See Sprint Telephony, 543 F.3d at 576–78. If above- cost fees were not per se prohibitions under the less stringent Qwest standard, it is hard to see how they would be under the stricter approach of Sprint Telephony. I do not suggest that Qwest imposes a “legal” bar to the FCC’s contrary determination, Maj. Op. 43, but rather that the FCC has not adequately explained the basis for its conclusion here. Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 79 of 82

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The FCC has instead determined that a prohibition on all above-cost fees is justified because all above-cost fees, in the aggregate, effectively prohibit 5G deployment. The linchpin of the agency’s aggregation theory is a 2018 study by Corning, Inc., which estimates at over $2 billion the cost- savings and reinvestment from reduced fees. Small Cell Order ¶¶ 7, 60 & n.169. But the Corning Study is not about fees above costs. And the FCC has not explained how this study tells us about the prevalence of above-cost fees or the burden such fees place on service providers.

Instead, the Corning Study calculated “the cost savings from capping fees at a level in line with the median of recent state regulations,” estimating that amount at over $2 billion. Because this is not a measure of fees above costs, the Corning Study does not say whether the caps it used to measure savings approximate costs. Indeed, the Corning Study notes that “[t]here is still significant uncertainty around what ‘typical’ rates are.” The study further states that “attachment and application fees” are “lesser drivers” of 5G deployment economics, raising questions about the extent to which all fees above costs necessarily effectively prohibit service.

At bottom, what the Corning Study conveys is that if fees are reduced, it will produce cost savings to those who pay the fees. Small Cell Order ¶¶ 50, 53, 55–56, 60 & n.169, 64–65 & nn.194–95. But that commonsense observation would be true of any fee considered in the aggregate. And it would seemingly mean that any fee in any amount could qualify as an effective prohibition, once aggregated. The same would be true of the aggregate effects of any form of regulation that localities would apply outside the fee context. I am therefore concerned that on the record as it stands, the FCC’s approach lacks a limiting principle. At least absent some estimated Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 80 of 82

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quantification of above-cost fees in the aggregate (which the Corning Study does not provide) or some further estimate tied to the rule it adopted, the FCC’s logic would appear to justify the preemption of any state or local rule.

The FCC’s “reinvestment” theory invites similar concerns. It may be true that every fee imposes some cost that, if avoided, could potentially be reinvested to expand 5G coverage. But it does not follow that every type of fee rises to the level of an “effective prohibition,” which is the line Congress drew in the Telecommunications Act. See Cal. Payphone, 12 F.C.C. Rcd. at 14209 (stating that, “standing alone,” the fact that providers “would generate less revenue . . . does not necessarily mean that [services] are impractical and uneconomic”) (quotations omitted); cf. AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 390 n.11 (1999) (disagreeing “that a business can be impaired in its ability to provide services—even impaired in that ability in an ordinary, weak sense of impairment—when the business receives a handsome profit but is denied an even handsomer one”). A provider reinvestment theory, without more, would similarly appear to justify the preemption of any local policy that imposes costs on providers.

On this record, the FCC thus has not shown that above- cost fees effectively prohibit service in many, most, or a plurality of cases. I therefore cannot conclude that the agency has articulated “a rational connection between the facts found and the choice made.” Motor Vehicle Mfgs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quotations omitted).

The FCC itself recognizes that “in theory, a sufficiently small departure from actual and reasonable costs might not Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 81 of 82

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have the effect of prohibiting service,” but concludes its cost- based standard is still appropriate because “the record does not reveal an alternative, administrable approach to evaluating fees.” Small Cell Order ¶ 65 n.199. Concerns about administrability, though important as a policy matter, must still be operationalized under the statute’s effective prohibition standard. A rule prohibiting fees that exceed cost by $1 would be equally administrable, but that does not mean such fees are invariably effective prohibitions on service, which is the relevant question under §§ 253(a) and 332(c)(7).

The Order’s safe harbors underscore my concerns. The FCC concedes that its safe harbors, which are not based on estimated costs, tolerate fee levels “in excess of costs in many cases.” Small Cell Order ¶ 79 n.233. That makes it more difficult to credit the agency’s finding that above-cost fees are per se effective prohibitions on service. The safe harbor also allows local governments to charge recurring fees of $270, which is substantially greater than the $150 cap on recurring fees used to calculate cost-savings in the Corning Study. There are also discrepancies between the FCC’s safe harbors for application fees and the Corning Study’s caps. The FCC does not estimate how much of the over $2 billion in cost- savings from the Corning Study would be left over under its more expansive safe harbors. Nor has the agency explained what portion of that figure can be attributed to above-cost fees.

I would have vacated and remanded the Small Cell Order’s prohibition on above-cost fees. See 5 U.S.C. § 706(2)(A), (E). While the FCC’s objective of advancing 5G service is undoubtedly an important one, Congress set limits on when local actions can be preempted. While a prohibition on all above-cost fees may well be justifiable, I do Case: 18-72689, 08/12/2020, ID: 11785909, DktEntry: 170-1, Page 82 of 82

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not believe the FCC has sufficiently justified it on the present record. With the exception to its references to legislative history, I otherwise join the court’s opinion in full. ATTACHMENT 4

Staff report w/o attachments from October 2, 2018 Town Council meeting

CORTE MADERA TOWN COUNCIL STAFF REPORT

Report Date: September 28, 2018 Meeting Date: October 2, 2018

TO: Honorable Mayor and Members of the Town Council

FROM: Adam Wolff, Director, Planning and Building

SUBJECT: Review and discussion of current wireless communications facility regulations and request for direction to staff regarding possible follow up action

* * * * * * * * * RECOMMENDED ACTION

Receive information related to wireless telecommunication regulations at the Federal, State and local levels, receive public comment, and provide direction to staff regarding possible follow-up action.

BACKGROUND

Several Bay Area communities have recently re-examined their policies and ordinances related to the permitting of small wireless telecommunication facilities to address: 1) recently adopted and proposed Federal legislation and rulemaking that aims to streamline approvals and reduce local control of the siting and design of small wireless telecommunication facilities; 2) changes to State rules governing the location of small wireless telecommunication facilities on existing or new utility infrastructure such as light or utility poles in the public right-of-way (PROW); and 3) the growing need of wireless service providers to expand and increase the density of their network of small wireless telecommunication facilities in order to deploy next generation wireless technologies.

Federal Regulations

Federal laws, implemented under the rulemaking authority granted to the Federal Communications Commission (FCC), preempt local authority from prohibiting, or having the effect of prohibiting, deployment of telecommunication services or telecommunication facilities1, and therefore prohibits local authority from regulating certain aspects of wireless telecommunications facilities, including regulations related to:

- Radio frequency or electromagnetic waves that comply with the Federal Communications Commission regulations; - Modifications to existing wireless telecommunications facilities;

1 On August 2, 2018, the FCC ruled that express or de facto moratoria prohibiting the processing and approval of wireless telecommunication facilities are inconsistent with the clear intent of Federal legislation. - The installation of wireless telecommunications facilities on existing or new utility poles in PROW; and - The collocation on existing wireless telecommunication facilities

These limitations on local government are intended to ensure broad deployment of wireless communication facilities by private telecommunications companies and to provide broad access to wireless technology by the general public and business community (see September 26, 2018 FCC Press Releases – Attachment 1). However, Federal regulations preserve local authority to reasonably regulate the placement, construction, and aesthetics of wireless telecommunications facilities as long as such regulations do not have the effect of prohibiting deployment of wireless telecommunication facilities.

Additionally, Federal regulations require local jurisdictions to act on applications for wireless telecommunication facilities within a set amount of time2. These “shot clocks” provide the Town:

- 60 days to act on an application for an eligible facility that does not substantially change the physical dimension of the existing wireless telecommunication facilities tower or base station (“Section 6409(a) Permit”); - 60 days to act on an application for a small wireless telecommunication collocation facility (an addition of a wireless telecommunication facility to an eligible support structure); - 90 days to act on new small wireless telecommunication facilities; - 90 days to act on non-small wireless telecommunication facilities; and - 150 days to act on all other applications.

Earlier this year, U.S. Senate Bill 3157 was proposed, which would have further streamlined approvals and reduced local control of the siting and design of small wireless telecommunication facilities in order to remove barriers to the deployment of next generation wireless technologies. This proposed legislation did not pass. Nonetheless, the FCC has adopted several new rules over the last year, most recently on September 26, 2018, that limit all of the following: 1) state and local government from imposing barriers for wireless telecommunication facilities; 2) fees to process applications; 3) how state and local agencies are allowed to manage wireless equipment installations in the PROW; and 4) shorten the time allowed for the application approval process.

California Regulations

In California, a 2015/2016 decision by the California Public Utilities Commission requires utility companies to allow the collocation of small wireless telecommunication facilities on utility company owned infrastructure. This means that a telecommunication service provider may access PG&E utility poles in any jurisdiction’s PROW, including in Corte Madera. Other State bills have recently been proposed to remove barriers to permitting small wireless telecommunication facilities in the PROW, but have not been passed to this point.

2 The September 26, 2018 FCC Report and Order added two new time periods for action related to small wireless telecommunication facilities (Attachment 1). 2 These recent efforts at both the Federal and State levels are aimed at facilitating the approval of a significantly greater number of small wireless telecommunication facility permits necessary for the forthcoming 5G networks expected to roll out in the Bay Area in 2019/2020.

The proposed 5G technology is the fifth generation of cellular mobile communications and, succeeds 4G, 3G and 2G systems. 5G performance targets include high data rate, energy saving, cost reduction, higher system capacity and massive device connectivity. 5G service is intended to be faster and as a consequence, requires cellular tower equipment to be located closer to users since the high frequency waves that support faster speeds do not travel as far.

Town of Corte Madera Regulations

The Town of Corte Madera adopted a Wireless Communications Facilities Ordinance (Section 18.19 of the CMMC) in 2001. The Town’s Ordinance regulates the design, placement and construction of wireless communication facilities in Town on private property, and seeks to provide the Town’s residents and businesses with the associated benefits of wireless technology while preserving the Town’s character by discouraging wireless telecommunication facilities in residential areas.

The Town’s ordinance expressly exempts regulations for the deployment of wireless communication facilities in the PROW. At the time the ordinance was drafted, it was anticipated that the County would develop comprehensive regulations for wireless telecommunication facilities in the PROW, but that did not occur. Applications for wireless telecommunication facilities proposed in the PROW have instead been reviewed and approved through the encroachment permit process administered by the Public Works Department and Planning Department.

DISCUSSION:

As discussed above, much of the recent legislative activity at the Federal and State level is aimed at ensuring the existence of a robust nationwide network of wireless telecommunication facilities capable of deploying the latest wireless technologies. With new applications for wireless technologies continuing to grow into an ever-greater presence in all facets of daily life, the deployment of small wireless telecommunication facilities has national economic development, and potentially national security, implications3.

As a result, the Town’s ability to limit the widespread deployment of wireless communication facilities throughout Town, assuming that might be desired, is itself very limited within the legal confines of the current regulations and appears to be growing more limited each year. Perhaps more relevant for this discussion given the correspondence the Town has received regarding public health concerns related to 5G technologies (Attachment 3), the Town is preempted from regulating the technology itself and addressing the types of health concerns that have been raised. As noted above, the Town cannot regulate radio frequency or electromagnetic waves emissions that comply with the Federal Communications Commission regulations.

3 See “The 5G Race: China and U.S. Battle to Control World’s Fastest Wireless Internet.” Wall Street Journal September 9, 2018 (Attachment 2). 3 Nonetheless, there appear to be opportunities, if the Town Council desires, to update the Town’s existing Wireless Communications Facilities Ordinance to better reflect current best practices in the regulation of small wireless telecommunication facilities and perhaps more importantly, address the anticipated push by wireless telecommunication companies to locate small wireless telecommunication facilities in the PROW. While the Town has received only a few applications for small wireless telecommunication facilities in the PROW, Staff expects an increase in such applications with the roll out of next generation wireless technologies. An ordinance that applies to facilities in the PROW could more effectively regulate the operational and physical characteristics of small wireless telecommunication facilities on PG&E utility poles and other utility infrastructure in Town.

Staff has reviewed several recently updated wireless telecommunication ordinances in surrounding communities and believes an approach similar to that taken by the City of Petaluma would be a good model for consideration if the Town Council wishes to pursue an update, given its relatively simple and straightforward approach for setting locational and physical criteria for facilities in the PROW (Attachment 4). Additionally, other ordinances appear to require a significant amount of staff administration within already tight timeframes required by Federal law, raising some concerns about adequate staff capacity. For any potential ordinance update, however, new regulations would have to be carefully analyzed to ensure compliance with Federal and State laws, including the September 26, 2018 FCC ruling.

In all cases, it is unlikely that the fundamental public health concerns communicated to the Town Council regarding 5G technology can be addressed at the local level.

FISCAL IMPACT

None

ENVIRONMENTAL IMPACT

This is a discussion item with no action being taken and therefore is not a project pursuant to CEQA.

OPTIONS

1. Direct Staff to pursue a full update to the Town’s Wireless Communication Facilities Ordinance; 2. Direct Staff to pursue a limited update to the Town’s Wireless Communications Facilities Ordinance to address small wireless telecommunications facilities in the PROW; 3. Direct Staff to return to the Town Council with additional information regarding this topic 4. Direct Staff to continue to monitor legislative developments and return to the Town Council on a date certain to revisit the above options.

4 ATTACHMENTS 1. FCC Press Releases – September 26, 2018 2. September 9, 2018 Wall Street Journal Article 3. Public Comments 4. City of Petaluma August 6, 2018 Staff Report and Wireless Ordinance

THIS ITEM HAS BEEN REVIEWED AND APPROVED BY THE TOWN MANAGER.

5 ATTACHMENT 5

Sample image of small cell wireless facilities on utility infrastructure

CORTE MADERA TOWN COUNCIL DRAFT OF UPCOMING AGENDA ITEMS FOR TUESDAY, MAY 4, 2021 PROPOSED ITEMS, AND ORDER, ARE SUBJECT TO CHANGE VIA VIDEOCONFERNECE ONLY

Placing an item on the agenda: An item may be placed on the agenda by submitting a request to the Town Clerk or the Town Manager, or their designee, by Tuesday at 5p.m. 21 days prior to the Council meeting during which the item is sought to be considered. If such item requires staff investigation or if it will be considered at a future date in the normal course of business (e.g., planning and budget matters), it may be deferred to a later date with concurrence of the person submitting the item. Staff will accommodate submissions after the deadline whenever practical. (Town Council Rules and Procedures, Section 7.4)

PRESENTATIONS:

CONSENT CALENDAR: 1. Waive Further Reading and Authorize Introduction and/or Adoption of Resolutions and Ordinances by Title Only (Standard procedural action – no backup information provided)

2. Second Reading / Possible Adoption of Ordinance No. 1006 Amending Sections 6.14.010, 6.14.020, 6.14.040, 6.14.070, 6.14.100, And Repealing Sections 6.14.050, 6.14.060, And 6.14.080 Of Chapter 6.14, Prohibiting Smoking In Public Places, Places Of Employment, Other Areas, And Multi-Unit Housing, To (1) Amend Definitions To Conform To The Definitions Used In State Law; (2) To Require 100 Percent Of All Multi-Unit Residential Properties To Be Smoke-Free By One Year After The Enactment Of This Ordinance; (3) To Prohibit Smoking In Town Vehicles And (4) To Prohibit Smoking Within 20 Feet Of A Building Or Road Construction Crew; (5) Prohibit All Smoking Of Cannabis, Including For Medical Purposes In All Units Of Multi-Unit Properties; (6) Allow For Enforcement Of The Ordinance By Administrative Citation; And Amending Sections 6.16.030 And 6.16.040 Of Chapter 6.16 To Amend Definitions To Conform To The Definitions Used In State Law And To Repeal Provisions That Duplicate State Law.

3. Approval of Final Map for Oak Shores Subdivision at Robin Drive

4. Approval of Minutes of April 20, 2021 Town Council meeting

PUBLIC HEARINGS:

BUSINESS ITEMS: 1. Town Hall Project / Review and Discussion of Funding Options

2. Consideration of Proposal For New Recreation Program Manager Position and Provide Direction to Staff Regarding (1) Creation of New Position Classification Titled Recreation Program Manager With a Salary Range of $x,xxx to $x,xxx Per Month; (2) Amendment to Compensation Schedule C – Mid Management Employees, to Add New Position and Salary Range (This is a two meeting item per Council Policy)

1 8.A.