DUBLIN PLANNING COMMISSION A G E N D A

September 26, 2017 Dublin Planning Commission Agenda of 2

REGULAR MEETING Tuesday, September 26, 2017, 7:00 PM

Council Chamber, 100 Civic Plaza

DUBLIN PLANNING COMMISSION A G E N D A

Agendas and Staff Reports are posted on the City’s Internet Website (www.dublin.ca.gov)

Agendas may be picked up at the Community Development Department for no charge, or to request information on being placed on the annual subscription list, please call 833-6610.

A complete packet of information containing Staff Reports and exhibits relate to each item is available of public review at least 72 hours prior to a Planning Commission Meeting or, in the event that it is delivered to Planning Commission members less than 72 hours prior to a Planning Commission Meeting, as soon as it is so delivered.

REGULAR MEETING 7:00 PM

1. CALL TO ORDER

2. ORAL COMMUNICATIONS

2.1. Public Comment At this time, the public is permitted to address the Planning Commission on non-agendized items. Please step to the podium and clearly state your name for the record. COMMENTS SHOULD NOT EXCEED THREE (3) MINUTES. In accordance with State Law, no action or discussion may take place on any item not appearing on the posted agenda. The Planning Commission may respond to statements made or questions asked, or may request Staff to report back at a future meeting concerning the matter. Any member of the public may contact the Recording Secretary’s Office related to the proper procedure to place an item on a future Planning Commission agenda. The exceptions under which the Planning Commission MAY discuss and/or take action on items not appearing on the agenda are contained in Government Code Section 54954.2(b)(1)(2)(3).

3. CONSENT CALENDAR Consent Calendar items are typically non-controversial in nature and are considered for approval by the Planning Commission with one single action. Members of the audience, Staff or the Planning Commission who would like an item removed from the Consent Calendar for purposes of public input may request the Chair to remove the item.

3.1. June 27, 2017 Planning Commission Minutes

The Planning Commission will consider approval of the minutes of the June 27, 2017

Planning Commission meeting.

STAFF RECOMMENDATION: Approve the minutes for the June 27, 2017 Planning Commission meeting.

4. WRITTEN COMMUNICATION - NONE

5. PUBLIC HEARING

5.1. Zoning Ordinance Amendments to the Wireless Communication Facilities

(Chapter 8.92) PLPA 2014-00064

The Planning Commission will consider and make a recommendation to the City

Council regarding Zoning Ordinance amendments related to the regulation of wireless

communication facilities. This includes amendments to Zoning Ordinance Chapters

8.36, 8.92 and 8.104. The proposed amendments are necessary in order to comply

with the Middle Class Tax Relief and Job Creation Act of 2012 (Act). The Act

September 26, 2017 Dublin Planning Commission Agenda of 2

restricts local regulation of wireless communication facilities and provides an

expedited permitting process under certain circumstances.

STAFF RECOMMENDATION: Adopt the Resolution recommending City Council approval of amendments to

Dublin Zoning Ordinance Chapter 8.92 (Wireless Communication Facilities), Chapter

8.36 (Development Regulations) and Chapter 8.104 (Site Development Review)

effective city-wide.

6. UNFINISHED BUSINESS - NONE

7. NEW BUSINESS - NONE

8. OTHER BUSINESS

Brief information only reports from City Council and/or Staff, including committee reports and reports by City

Council related to meetings attended at City expense (AB1234).

9. ADJOURNMENT

This AGENDA is posted in accordance with Government Code Section 54954.2(a)

If requested, pursuant to Government Code Section 54953.2, this agenda shall be made available in appropriate

alternative formats to persons with a disability, as required by Section 202 of the Americans with Disabilities Act of

1990 (42 U.S.C. Section 12132), and the federal rules and regulations adopted in implementation thereof. To make

a request for disability-related modification or accommodation, please contact the City Clerk’s Office (925) 833-

6650 at least 72 hours in advance of the meeting.

Mission

The City of Dublin promotes and supports a high quality of life, ensures a safe and secure environment, and fosters

new opportunities.

Vision

Dublin is a vibrant city committed to its citizens, natural resources and cultural heritage. As Dublin grows, it will

balance history with progress, to sustain an enlightened, economically balanced and diverse community.

Dublin is unified in its belief that an engaged and informed community encourages innovation in all aspects of City

life, including programs to strengthen our economic vitality, and preserve our natural surroundings through

environmental stewardship and sustainability. Dublin is dedicated to promoting an active and healthy lifestyle

through the creation of first-class recreational opportunities, facilities and programs.

JOHN DI BENE

General Attorney Legal Department

AT&T Services, Inc. 2600 Camino Ramon Room 2W901 San Ramon, CA 94583 925.543.1548 Phone 925.867.3869 Fax [email protected]

September 26, 2017

Via Email ([email protected])

City of Dublin Planning Commission

Dublin City Hall

100 Civic Plaza

Dublin, CA 94568

Re. AT&T’s Initial Comments to Proposed Zoning Ordinance Amending

Chapter 8.92 of the Dublin Municipal Code, Wireless Communications

Facilities

Dear Chair Mittan, Vice Chair Bhuthimethee, and Commissioners Kothari, Qureshi, and Wright:

I write on behalf of my client New Cingular Wireless PCS, LLC d/b/a AT&T Mobility

(AT&T) to provide initial comments on the proposed amendments to Chapter 8.92 to the Dublin

Municipal Code (“Proposed Amendment”), to update the city’s regulations on installations of

and modifications to wireless communications facilities in the city. AT&T recognizes the city’s

desire to update its Code to carefully balance the city’s interests with the rights of wireless

providers in light of changes in the laws governing siting of wireless communications facilities

and recent advances in wireless communications technology. This effort also affords the city the

opportunity to invest in the latest advances in wireless technologies. AT&T strongly encourages

the city to update the Proposed Amendment to provide a streamlined process to effectively and

lawfully promote deployment of small cells.

Small cell facilities have limited aesthetic impact and are used to improve service by

increasing throughput and reducing latency. Small cells will play a critical role in advancing to

5G in the future, which is expected to deliver speeds 10-100 times faster than today’s average 4G

LTE connections. Customers will see speeds measured in gigabits per second, not megabits. To

work effectively, mobile customers need access to multi-gigabit bandwidth speeds and low

latency, which a small cell network helps provide. By getting the physical antenna closer to the

user users are presented with a dominate signal that results in less noise interference and

provides faster throughput.

The Proposed Amendment also must be viewed in the context of applicable federal and

state laws. The applicable federal laws aim to promote and expedite deployment of wireless

Dublin Planning Commission

September 26, 2017

Page 2 of 6

communications services.1 State law also imposes significant limitations upon the city’s

authority to regulate siting of wireless communications facilities.2 With these considerations in

mind, AT&T offers the following comments regarding the Proposed Amendment. And AT&T

welcomes the prospect of working with the city to improve processes for siting wireless facilities

and asks the city to fully consider detailed comments from industry stakeholders.

Section 8.92.030 – Definitions

Several of the proposed definitions reflect an effort to mirror the definitions of the

Federal Communications Commission regulations with respect to eligible facilities requests

under Section 6409(a). See 47 C.F.R. § 1.40001(b). In order to avoid potential conflicts with the

federal law, the definitions under the Proposed Amendment should either incorporate the FCC

definitions by reference or track the regulatory language verbatim.

Section 8.92.050 – Permitting Procedure

This section states that the city’s Site Development Review process applies to “all new or

modified wireless communication facilities, unless otherwise noted in this Chapter.” Reading the

Proposed Amendment along with the referenced existing sections of the Code, however,

indicates the city’s intent to except Section 6409(a) eligible facilities requests from Site

Development Review. In order to avoid confusion, this section should explicitly exempt Section

6409(a) eligible facilities requests.

Section 8.92.060(A) – New Wireless Communication Facilities

AT&T presumes that the term “new” in this section of the Proposed Amendment is

intended to refer to new standalone, non-collocation facilities. The city should make this intent

explicit, otherwise this provision can be read as applicable to many other types of facilities,

including Section 6409(a) eligible facilities requests. And if applicable to Section 6409(a)

modifications, several of the requirements of this section would be unlawful, which does not

appear to be the city’s intention.

Section 8.92.060(A)(1)(c) – Plan view and elevation requirements

This subsection of the Proposed Amendment requires “a scaled depiction of the

maximum permitted increase” to an existing wireless communication facility that would be

authorized under Section 6409(a). In other words, this provision would require the project

drawings to illustrate not only the proposed dimensions of a facility, but also the potential

1 See, e.g., Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7)(B); Petition for Declaratory Ruling to Clarify

Provisions of Section 332(c)(7)(B), WT Docket No. 08-165, Petition for Declaratory Ruling to Clarify Provisions of

Section 332(c)(7)(B), WT Docket No. 08-165, Declaratory Ruling, 24 FCC Rcd. 13994 (2009) (the “Shot Clock

Order”); Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, 47 U.S.C. § 1455(a)

(“Section 6409(a)”).

2 See, e.g., Cal. Gov’t Code §§ 65964 & 65964.1; Cal. Pub. Utils. Code §§ 7901 & 7901.1.


September 26, 2017

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expansions authorized by Section 6409(a). But AT&T is unable to predict what another carrier’s

potential future facility might look like in order to depict it in project drawings. It is also

unnecessary to require an applicant to calculate the post-project dimensional increase authorized

by Section 6409(a) because applicable federal regulations specify what constitutes a substantial

change to physical dimensions. See 47 C.F.R. § 1.40001(b)(7).

Section 8.92.070(A)(1) – Site plan requirements

This subsection of the Proposed Amendment requires “plan views and all four elevations

that depict the physical dimensions of the existing facility as it existed on February 22, 2012 or

as approved if constructed after February 22, 2012.” This provision attempts to mirror the FCC’s

regulatory basis for when a modification constitutes a substantial change in physical dimensions

under Section 6409(a). Cf. 47 C.F.R. 1.40001(b)(7)(i)(A). But the FCC’s regulation is more

limited in scope that the city’s proposed provision and applicants cannot be required to provide

documentation beyond what is necessary to demonstrate that that a Section 6409(a) modification

will not substantially change the physical dimensions of the eligible support structure. See 47

C.F.R. 1.4001(c)(1). To come into compliance with federal law, this proposed provision can only

require site views as of February 22, 2012 in cases where the proposed modification will change

the height of an eligible support structure where deployments are separated vertically on the

structure.

Section 8.92.070(A)3) – Written statement

This subsection requires a written narrative to “state the applicable standard and all facts

that would allow the city to conclude the standard has been met” including “whether and how” a

proposed Section 6409(a) modification complies with Section 6409(a). But under the applicable

FCC regulation, 47 C.F.R. § 1.40001(c)(1), the city can only require documents necessary to

demonstrate that that a Section 6409(a) modification will not substantially change the physical

dimensions of the eligible support structure. While AT&T will certainly endeavor to “show its

work” with each eligible facility request under Section 6409(a), federal law does not authorize a

city to deny an application where the applicant does not explicitly link each element of its

proposed facility to the corresponding federal law basis for approval. Indeed, project drawings

alone will be sufficient to demonstrate compliance in many instances. To the extent the city

desires a project narrative beyond the requirements under federal law, the narrative must be

optional.

Section 8.92.070(B) – Review and Required Findings

Section 8.92.070(B) of the Proposed Amendment provides that a proposed modification

that “does not qualify as a Section 6409(a) Modification shall be denied and will instead be

subject to the requirements set forth in this Chapter for the specific type of wireless

communication facility proposed.” This concept of transferring an application from the Section

6409(a) process to the city’s traditional track for review is consistent with the FCC’s October

2014 Report & Order that formed the basis for its Section 6409(a) regulations. This is helpful for

both the city and the applicant, both of whom have invested time and effort with respect to the


September 26, 2017

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proposed modification. But it is unclear how the transfer would occur under this proposed

provision following a “denial.” To meet its goal, the city should provide here a mechanism for

transferring an application to the appropriate review authority and process rather than denying it.

Section 8.92.070(C) – Other

Section 8.92.070(C) of the Proposed Amendment allows the city to impose conditions of

approval of a Section 6409(a) modification. But neither Section 6409(a), nor the applicable FCC

regulations authorize additional conditions of approval with respect to the modification. At most,

conditions should be limited to those consistent with the prior approval and not otherwise

unlawful, as well as conditions with respect to generally-applicable health and safety codes and

standards.

Section 8.92.080 – Development Standards and Regulations

Section 8.92.080(A) of the Proposed Amendment prohibits wireless communication

facilities in residential and certain other zoning districts. Likewise, section 8.92.080(B) of the

Proposed Amendment prohibits such facilities “on property designated Parks/Recreation, Open

Space, or Stream Corridor on the Dublin General Plan.” If the city adopts these express

prohibitions, it will run a significant risk of violating the Telecommunications Act of 1996

(“Act”). Moreover, these restrictions will hamper deployment of small cell facilities in the city.

Under the Act, a local jurisdiction must avoid taking any action on a wireless siting

permit that “prohibit[s] or [has] the effect of prohibiting the provision of personal wireless

services.” 47 U.S.C. § 332(c)(7)(B)(i)(II). Courts have found an “effective prohibition” exists

where a wireless carrier has (1) a “significant gap” in wireless service coverage; and (2) that the

proposed facility would provide the “least intrusive means,” in relation to the land use values

embodied in local regulations, to provide the service coverage necessary to fill that gap.3 If a

wireless carrier satisfies both of these requirements, state and local standards that would

otherwise be sufficient to permit denial of the facility are preempted and the municipality must

approve the wireless facility.4 When a wireless provider presents evidence of a significant gap

and the absence of a less intrusive alternative, the burden shifts to the local government to prove

that a less intrusive alternative exists. In order to meet this burden (and overcome the

presumption in favor of federal preemption), the local government must show that another

alternative is available that fills the significant gap in coverage, that it is technologically feasible,

and that it is “less intrusive” than the proposed facility.5 By prohibiting installations of wireless

communications facilities throughout large portions of the city, the city is setting itself up to

violate federal law.

3 See e.g., Metro PCS, Inc. v. City and County of San Francisco, 400 F.3d 715, 734-35 (9th Cir. 2005); Sprint PCS

Assets, LLC v. City of Palos Verdes Estates, 583 F.3d 716, 726 (9th Cir. 2009).

4 See T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, 999 (9th Cir. 2009).

5 Id., 572 F.3d at 998-999.


September 26, 2017

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Also under the Act, the city cannot “unreasonably discriminate among providers of

functionally equivalent services.” 47 U.S.C. § 332(c)(7)(B)(I). Under Section 8.92.040(C) of the

Proposed Amendment, personal wireless services offered by the city or other public entities are

exempt from the standards of Chapter 8.92, including the location prohibitions under proposed

section 8.92.080. Thus, to the extent public communications facilities are allowed in residential

and planned development districts, parks, recreational areas, open space or the stream corridor,

the city would violate the Act by prohibiting a wireless services provider from also placing its

facilities in these districts.

Not only do these prohibitions risk violating federal law, they put the city at risk for

missing opportunities to invest in small cells. Deployment of these low-power, low-profile

wireless facilities will help enable 5G services. This requires placing antennas closer to the users,

such as in residential zones and in parks and open spaces. In fact, the Center for Disease Control

and Prevention (“CDC”) tracks “wireless substitution” rates as part of its National Health

Interview Survey, and the CDC publishes the statistics every six months in its Wireless

Substitution reports. The most recent report, issued in May 2017, finds that 50.8% of American

homes have only wireless telephones, and another 15.0% receive all or almost all calls on

wireless telephones despite also having a landline.6 With more than 65% of households relying

exclusively or primarily on mobile communication devices at home, it is important that city

policies reflect the need to provide services in residential districts and in other locations where

residents rely on ubiquitous wireless service coverage.

To avoid these problems, the city should consider developing location preferences rather

than prohibitions. And the city should carve out small cells and other low-profile facilities from

these restrictions.

Section 8.92.080(C)(4) – Lightning Arrestors and Beacon Lights.

Section 8.92.080(C)(4) of the Proposed Amendment prohibits lightning arrestors and

beacon lights unless required by the FAA. First, AT&T questions the wisdom of a general rule

prohibiting lightning arrestors on towers. Second, this section is unnecessary given proposed

section 8.92.080(C)(6), regarding lighting on wireless communications facilities. AT&T

recommends the city eliminate proposed section 8.92.080(C)(4).

FCC Shot Clock Compliance

The Proposed Amendment should incorporate the time limitations for the city’s review of

applications consistent with the FCC’s “shot clocks.” The Act requires a local government to act

on an application to place or construct a wireless telecommunications facility “within a

reasonable period of time.” 47 USC § 332(c)(7)(B)(ii). The FCC’s Shot Clock Order established

a legal presumption that “reasonable period of time” means 90 days to act on an application to

6 CDC’s May 2017 Wireless Substitution: Early Release of Estimates From the National Health Interview Survey,

July-December 2016 is available at http://www.cdc.gov/nchs/data/nhis/earlyrelease/wireless201705.pdf.

http://www.cdc.gov/nchs/data/nhis/earlyrelease/wireless201705.pdf


September 26, 2017

Page 6 of 6

collocate a wireless facility or 150 days to act on other requests to construct wireless

telecommunications facilities.7 The FCC also has established a maximum 60-day

review period for eligible facilities requests under Section 6409(a).8 Incorporating these

timeframes into the local code would be particularly helpful for the city given that applications

may be deemed approved if not fully resolved within the timeframes.9

Proposed Amendments to Chapter 7.04 of the Dublin Municipal Code

The Staff Report for the Proposed Amendment also refers to an effort to amend Chapter

7.04 of the Dublin Municipal Code with respect to wireless communications facilities in the

public right-of-way. Although AT&T has not yet had an opportunity to review and comment on

that separate proposal, I urge the city to specifically address eligible facilities requests under

Section 6409(a) and to invest in small cells by providing a streamlined process for such

installations.

Conclusion

AT&T understands and appreciates the city’s desire to develop a comprehensive

approach to siting wireless communication facilities within the city, which is surely needed due

to significant technological advances in the wireless industry and recent changes to the state and

federal laws that govern wireless siting. Especially as technologies advance and the types of

facilities needed to meet increasing demands change, the city and wireless providers will be

better served by policies that foster flexibility in siting wireless technologies. AT&T is confident

that the city can, after thoughtful consideration of the issues, develop a lawful policy. And

AT&T encourages the city to add processes to facilitate small cell deployment. We welcome the

opportunity to work with the city as it finalizes the Proposed Amendment.

Very truly yours,

/s/ John di Bene

John di Bene

7 Shot Clock Order, ¶¶ 45, 71.

8 See 47 C.F.R. § 1.40001(c)(2).

9 The FCC regulation that specifies the 60-day shot clock for EFRs also provides the deemed grant remedy for

failure to act in time. See 47 C.F.R. § 1.40001(c)(4). And state law provides that the failure to meet the 90-day or

150-day FCC shot clock results in a deemed approval upon notice. See Cal. Gov’t Code § 65964.1(a).

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STAFF REPORT PLANNING COMMISSION

DATE: September 26, 2017

TO: Planning Commission

SUBJECT:

June 27, 2017 Planning Commission Minutes Prepared by: Danielle Diaz, Senior Office Assistant

EXECUTIVE SUMMARY: The Planning Commission will consider approval of the minutes of the June 27, 2017

Planning Commission meeting.

RECOMMENDATION:

Approve the minutes for the June 27, 2017 Planning Commission meeting.

PROJECT DESCRIPTION:

Minutes of the June 27, 2017 Planning Commission meeting.

PUBLIC NOTICING:

N/A

ATTACHMENTS:

1. June 27, 2017 Planning Commission Minutes

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PLANNING COMMISSION MINUTES Tuesday, June 27, 2017

Planning Commission June 27, 2017 Regular Meeting P a g e | 1

A Regular Meeting of the Dublin Planning Commission was held on Tuesday, June 27, 2017, in Ambrose Hall at the Shannon Community Center. The meeting was called to order at 7:03 p.m. by Commissioner Chair Scott Mittan.

1. Call to Order and Pledge of Allegiance

Attendee Name Title Status

Scott Mittan Commission Chair Present

Tara Bhuthimethee Commission Vice Chair Present

Amit Kothari Planning Commissioner Present

Samir Qureshi Planning Commissioner Absent

Stephen Wright Planning Commissioner Present

2. Oral Communications

2.1. Public Comment

No public comments were made.

3. Consent Calendar

3.1. Approve the minutes for the June 13, 2017 Planning Commission meeting.

RESULT: ADOPTED [UNANIMOUS] MOVED BY: Stephen Wright, Planning Commissioner SECOND: Tara Bhuthimethee, Commission Vice Chair AYES: Tara Bhuthimethee, Scott Mittan, Amit Kothari, Stephen Wright ABSENT: Samir Qureshi

4. Written Communication - None 5. Public Hearing

5.1. Wanmei Properties, Inc. Planned Development Rezone with related Stage 1

and Stage 2 Development Plans, a Vesting Tentative Map and Site Development Review (PLPA-2015-00023) Commissioner Kothari disclosed ex-parte communications with Dr. Sabri Arac, Headmaster of The Quarry Lane School. Commission Chair Mittan re-opened the public hearing.

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Hayes Shair, Applicant, made a presentation. Dennis Liu provided public comment. Maria Kapur provided public comment. Sinh Sinh Henderson provided public comment. Yunhe Ma provided public comment. Michael Henderson provided public comment. Herman Ortega provided public comment. Mark Webber provided public comment. Richard Guarienti provided public comment. Sai Karawadi provided public comment. Maria Odda-Steahly provided public comment. Robert Selna provided public comment. Atul Patel provided public comment. Ayesegul Petek Gursel provided public comment. Sabrina Smith provided public comment. Billie Withrow provided public comment. Kelly Knabe provided public comment. Candice McGraw provided public comment. Michelle Setchell provided public comment. Marlene Massetti provided public comment. Deniz Hanson provided public comment. Joymaneet Kaur provided public comment. Manes Lenka provided public comment.

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Marie Marshall provided public comment. Nikhil Apte provided public comment. Scott B. Kirkman provided public comment. Keith Fichtner provided public comment. Alicia Guerra, Attorney for the Applicant, made a presentation. Malcolm Sproul, Biologist for the Applicant, made a presentation. Luke Sims, Community Development Director, responded to questions posed by the Commission. Amy Million, Principal Planner, responded to questions posed by the Commission. Tim Cremin, Assistant City Attorney, responded to questions posed by the Commission. Commission Chair Mittan closed the public hearing. The Planning Commission provided comments on the project. The Commissioners expressed concerns about the proposed density of 19 dwelling units given the size and configuration of the parcel and adjacency to the creek tributary and the Dublin Ranch Preserve/Northern Drainage Conservation Area; the proposed 50-foot average structural setback from the top of the bank of the adjacent creek tributary as an exception to the 100-foot setback under the Eastern Dublin Comprehensive Stream Restoration Program standards; adverse biological impacts resulting from the project; and safety concerns related to the proposed ingress and egress to the project site due to the size and location of the project entrance and the narrow width of the private street which creates a perceived conflict with the existing traffic speed and congestion on Tassajara Road. On motion of Commission Vice Chair Bhuthimethee, seconded by Commissioner Wright, and by unanimous vote (Commissioner Qureshi being absent), the Commission adopted:

RESOLUTION NO. 17 – 09

RECOMMENDING CITY COUNCIL DENIAL OF PLANNED DEVELOPMENT REZONE WITH RELATED STAGE 1 AND STAGE 2 DEVELOPMENT PLANS, VESTING

TENTATIVE MAP, AND SITE DEVELOPMENT REVIEW FOR THE WANMEI PROPERTIES, INC. PROJECT LOCATED AT 6237 TASSAJARA ROAD

(APN 985-0072-002-00) PLPA-2015-00023

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6. Unfinished Business - None 7. New Business - None 8. Other Business - None

9. Adjournment The meeting was adjourned by Commission Chair Mittan at 9:15 p.m.

Respectfully submitted,

Planning Commission Chair

ATTEST: Jeff Baker Assistant Community Development Director

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STAFF REPORT PLANNING COMMISSION

DATE: September 26, 2017

TO: Planning Commission

SUBJECT:

Zoning Ordinance Amendments to the Wireless Communication Facilities (Chapter 8.92) PLPA 2014-00064 Prepared by: Amy Million, Principal Planner

EXECUTIVE SUMMARY: The Planning Commission will consider and make a recommendation to the City

Council regarding Zoning Ordinance amendments related to the regulation of wireless

communication facilities. This includes amendments to Zoning Ordinance Chapters

8.36, 8.92 and 8.104. The proposed amendments are necessary in order to comply with

the Middle Class Tax Relief and Job Creation Act of 2012 (Act). The Act restricts local

regulation of wireless communication facilities and provides an expedited permitting

process under certain circumstances.

RECOMMENDATION:

Adopt the Resolution recommending City Council approval of amendments to Dublin

Zoning Ordinance Chapter 8.92 (Wireless Communication Facilities), Chapter 8.36

(Development Regulations) and Chapter 8.104 (Site Development Review) effective

city-wide.

DESCRIPTION: Background The Telecommunications Act of 1996 (the “Telecom Act”) was signed into law by President Clinton in February 1996 and reflected the changes and rapid growth of telecommunications technologies. Under the Act, local zoning authorities were granted the ability to regulate the location and design of wireless communication facilities within their jurisdictional area through a discretionary permit process. In response to the Telecom Act, the City of Dublin amended the Dublin Municipal Code (DMC) to adopt the Wireless Communication Facilities Ordinance (DMC Chapter 8.72) in October 2000. The purpose and intent of the Ordinance was to provide a uniform and comprehensive set of standards for the development and installation of wireless communication facilities and to protect and promote public health, safety, community welfare and aesthetic qualities in the City. Since adoption of the Telecom Act and the City’s Ordinance, wireless technology has substantially changed. Concurrently, there have been major changes in wireless

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facilities law at the federal level. The City’s existing wireless ordinance does not address these new technologies or new regulations, most notably Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012. Middle Class Tax Relief and Job Creation Act The U.S Congress adopted the Middle Class Tax Relief and Job Creation Act of 2012 (Act) which established additional federally mandated regulations for wireless facilities and an expedited permitting process for modification of and collocation to existing facilities. Specifically, section 6409(a) of the Act established new requirements for modification and collocation of existing wireless telecommunication towers and base stations. The Act restricts local land use authority and states that a local government may not deny, and shall approve, any “eligible facilities request” for a modification of an existing wireless tower or base station that does not substantially change the physical dimension of such tower or base station. An “eligible facilities request” refers to any request for modification of an existing wireless tower or base station that involves:

(A) collocation of new transmission equipment, (B) removal of transmission equipment, or (C) replacement of transmission equipment. In order to effectively implement the Act, the proposed ordinance includes definitions for the terms used in the Act. For the purposes of this report, the following terms are described and simplified:

“Collocation” refers to the mounting of a wireless communication facility on the same tower or structure as an existing wireless communication facility. “Tower” refers to a pole, mast, monopole, lattice tower, etc. “Base station” refers to any structure that is not a tower. Section 6409(a) of the Act does not define what constitutes a “substantial change” to an existing tower or base station. However, the Federal Communication Commission (FCC) issued rules and clarifications for modification of wireless telecommunication facilities that defined “substantial change”. According to the FCC, a modification substantially changes the physical dimension of a wireless tower or base station if it meets any one of the following criteria:

Type of Modification:

Type of Facility:

Towers (outside the public right-of-way)

Towers (inside the public right-of-way) and

all Base Stations

Height More than 10% or one additional antenna array with the separation from the nearest antenna is more than 20 feet

More than 10% or 10 feet, whichever is greater

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Width More than 20 feet, or more than the width of the tower, whichever is greater

More than 6 feet

Equipment Cabinets

Installation of more than 4 cabinets.

Installation of any equipment cabinets if there are no pre-existing ground cabinets, or ground cabinets that are more than 10% larger in height or overall volume than any other ground cabinets

Excavation/ Deployment Beyond Site

Excavation or deployment outside of the current boundaries of the leased or owned property surrounding the tower and any access or utility easements

Excavation or deployment beyond the area in proximity to the structure/equipment

Defeat Concealment Elements

Defeat the concealment elements of the wireless tower or base station

Defeat Other Conditions

Not comply with the condition of approval, unless the non-compliance is due to an increase in height, increase in width, addition of cabinets, or new excavation that does not exceed the ‘substantial change’ thresholds.

Regardless of the above, all modifications remain subject to building codes and other non-discretionary structural and safety codes. Proposals Requiring Expedited Processing Under §6409(a)

Under the law, the City must act on an application for a Section 6409(a) modification within 60 days unless it notifies the applicant within 30 days that the specific information in the application is incomplete. After the applicant makes a supplemental filing, the agency has 10 days to notify the applicant the application remains incomplete. If no decision on the application is made during the 60-day review period (grant or denial), the request is “deemed granted.” Therefore, Staff is proposing amendments to the Zoning Ordinance in order to ensure that the City’s regulation of wireless communications facilities is in compliance with the requirements of the federally adopted Act. ANALYSIS: Chapter 8.92 of the Dublin Municipal Code provides regulations for all wireless communication facilities excluding those within the public right-of-way. Facilities within the public right-of-way are regulated by the Public Works Department in according with DMC Chapter 7.04. As part of this process, Chapter 7.04 is also being updated to address changes in the law that impact facilities in the public right-of-way. These changes are outside the purview of the Planning Commission and will be considered by the City Council. An overview of the proposed amendments to Title 8 (Zoning Ordinance) is provided below. For the complete Zoning Ordinance amendments refer to Exhibit A to Attachment 1.

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Chapter 8.92 As part of this process, Staff took a comprehensive look at the existing ordinance and evaluated ways to simplify the ordinance for ease of implementation. To accomplish this, sections of the existing ordinance were reorganized, relocated and removed. For example, similar requirements were combined to simplify the language; where there were consistent themes in the criteria or regulations they were consolidated (i.e. design-based regulations were moved to Design Criteria and location-based criteria were move to Location Criteria) and duplicative regulations that were covered under a separate section were removed. Definitions (Chapter 8.92) The City’s existing ordinance has a multitude of definitions for the technical terms related to wireless communication facilities. The proposed ordinance simplifies these definitions and eliminates the overly technical terms that have no relationship to the aesthetics of a facility, which is what the ordinance regulates. Application Requirements (Chapter 8.92) Section 6409(a) of the federally adopted Act, limits the application materials that the City can require for qualified modifications and collocations. The City may require an application, but may only seek documentation about whether the facility meets Section 6409(a) requirements. The City may not require documentation proving the need for the proposed modification or collocation. In response, the draft ordinance separates the application requirements for new facilities and modifications, and the application requirements for facilities which qualify under Section 6904(a). Development Regulations (Chapter 8.36) Staff is also proposing amendments to the Development Regulations Ordinance (DMC Chapter 8.36) to ensure internally consistency in the Zoning Ordinance to clarify that the height limit exceptions (Section 8.36.110(C)(3)(c)) do not apply to new wireless communication facilities. Instead, new wireless communication facilities are solely regulated by Chapter 8.92 and are limited to the height for the district in which they are located. However, it should be noted that modifications to existing wireless communications facilities that qualify under Section 6409(a), may exceed the height limits established by the Zoning Ordinance. Site Development Review (Chapter 8.104) The proposed amendments clarify the approval authority for wireless communications facilities (new facilities, collocations, modifications and Section 6409(a) modifications) and ensure compliance with federal law. The proposed ordinance exempts minor modifications to approved facilities if not visible from the public right-of-way. A Site Development Review Waiver is required for modifications that are consistent with an approved Site Development Review permit. The proposed ordinance amends the review process to provide for expedited processing under Section 6409(a), by requiring a Site Development Review Waiver for

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such applications. The ordinance also requires applicants to demonstrate that their proposals meet the criteria for streamlined processing under Section 6409(a) as a part of their application. All other new or modified facilities would continue to require a Site Development Review Permit from the Community Development Director. A Planning Commission resolution recommending approval by the City Council is included as Attachment 1, with the draft Ordinance included as Exhibit A. CONSISTENCY WITH THE GENERAL PLAN, SPECIFIC PLAN AND ZONING ORDINANCE: The proposed Zoning Ordinance amendments are consistent with the Dublin General Plan, all applicable Specific Plans and the Zoning Ordinance in that the Amendments are consistent with applicable land use designations and general development policies. The amendments also include minor revisions for internal consistency within the Zoning Ordinance. NOTICING REQUIREMENTS/PUBLIC OUTREACH: In accordance with State law, a public notice was published in the East Bay Times and posted at several locations throughout the City. The Public Notice was provided to all persons who have expressed an interest in being notified of meetings. The Staff Report for this public hearing was also made available on the City’s website. ENVIRONMENTAL REVIEW: The California Environmental Quality Act (CEQA), together with State Guidelines and City Environmental Regulations require that certain projects be reviewed for environmental impacts and that environmental documents be prepared. Pursuant to the CEQA, Staff is recommending that the project be found exempt in accordance with CEQA Guidelines Section 15061(b)(3) because it can be seen with certainty that the amendments to Title 8 of the Dublin Municipal Code (Zoning Ordinance) will not have a significant effect on the environment. Pursuant to the FCC, changes to an existing telecommunications facility, that comply with Section 6409(a) of the Act, are considered minor changes and amending the Zoning Ordinance to comply with this Federal law would not impact the environment. As such, the proposed Zoning Ordinance Amendment is not subject to CEQA.

ATTACHMENTS:

1. Planning Commission Resolution

2. Exhibit A to Attachment 1

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RESOLUTION NO. 17-XX

A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DUBLIN

RECOMMENDING CITY COUNCIL APPROVAL OF AMENDMENTS TO DUBLIN ZONING

ORDINANCE CHAPTER 8.92 (WIRELESS COMMUNICATION FACILITIES, CHAPTER 8.36 (DEVELOPMENT REGULATIONS) AND CHAPTER 8.104 (SITE DEVELOPMENT REVIEW)

EFFECTIVE CITY-WIDE PLPA-2014-00064

WHEREAS, On February 22, 2013 the Federal government adopted the Middle Class Tax Relief and Job Creation Act of 2012 (Act), which provides that state or local governments may not deny, and shall approve, any request for collocation, removal, or replacement of transmission equipment on an existing wireless tower or base station, provided the action does not substantially change the physical dimensions of the tower or base station;

WHEREAS, Dublin Zoning Ordinance Chapter 8.92 (Wireless Communication Facilities) provides a uniform and comprehensive set of standards for the development and installation of wireless communication facilities to protect and promote public health, safety, community welfare and aesthetic qualities in the City; and

WHEREAS, Zoning Ordinance amendments are necessary to comply with federal and

State law and clarify the regulations for wireless communication facilities; and

WHEREAS, the California Environmental Quality Act (CEQA), together with State Guidelines and City Environmental Regulations require that certain projects be reviewed for environmental impacts and that environmental documents be prepared; and

WHEREAS, Pursuant to the CEQA, Staff is recommending that the project be found

exempt in accordance with CEQA Guidelines Section 15061(b)(3) because it can be seen with certainty that the amendments to Title 8 of the Dublin Municipal Code (Zoning Ordinance) will not have a significant effect on the environment. In accordance with Section 15378(b)(5) of the CEQA Guidelines because the proposed action is not a project under. Pursuant to the FCC, changes to an existing telecommunications facility, that comply with Section 6409(a) of the Act, are considered minor changes and amending the Zoning Ordinance to comply with this Federal law would not impact the environment. As such, the proposed Zoning Ordinance Amendment is not subject to CEQA; and

WHEREAS, a Staff Report was submitted to the City of Dublin Planning Commission

recommending City Council approval of the proposed Zoning Ordinance Amendments; and WHEREAS, the Planning Commission held a public hearing on the proposed Zoning Ordinance Amendments on September 26, 2017; and WHEREAS, proper notice of said hearing was given in all respects as required by law; and

WHEREAS, the Planning Commission did hear and consider all said reports, recommendations and testimony herein above set forth and used its independent judgment to evaluate the proposed ordinance.

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NOW, THEREFORE, BE IT RESOLVED that the foregoing recitals are true and correct

and made a part of this Resolution.

BE IT FURTHER RESOLVED that the City of Dublin Planning Commission does hereby recommend that the City Council adopt the Zoning Ordinance amendments attached hereto as Exhibit A and incorporated herein by reference.

PASSED, APPROVED AND ADOPTED this 26th day of September, 2017 by the

following vote: AYES:

NOES: ABSENT: ABSTAIN: Planning Commission Chair ATTEST: Assistant Community Development Director

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ORDINANCE NO. XX-17

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DUBLIN

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AMENDING CHAPTERS 8.92, 8.36, AND 8.104 OF THE DUBLIN MUNICIPAL CODE

RELATING TO DEVELOPMENT OF WIRELESS COMMUNICATIONS FACILITIES The City Council of the City of Dublin does hereby ordain as follows:

Section 1. Chapter 8.92 (Wireless Communications Facilities) of the Dublin Municipal Code is hereby amended to read as follows: “8.92.010 Purpose.

The purpose of this Chapter is to provide a uniform and comprehensive set of standards for the development and installation of wireless communication facilities and related facilities. These standards cover the siting, designing and permitting of wireless communication facilities. 8.92.020 Intent.

The intent of the regulations contained herein is to protect and promote public health, safety, community welfare and to: A. Protect the visual character of the City from the potential adverse effects of wireless communication facilities development and wireless communication facility installation; B. Ensure against the creation of visual blight within or along the City’s scenic corridors and ridgelines; C. Ensure that wireless communication facilities, to the maximum extent possible, are located in areas where the adverse impacts on the community are minimal; D. Ensure that wireless communication facilities, which include equipment cabinets and shelters, are configured in a way that minimizes the adverse visual impact of the facilities; E. Retain local responsibility for management of the use of the public right-of-way; F. Enhance the ability of the provider of wireless communication services to provide such services to the community quickly, effectively and efficiently; G. Ensure that a competitive and broad range of wireless communication services and high quality wireless communication service infrastructure are provided to serve the business community; H. Encourage collocation when it will decrease visual impacts and discourage collocation when it will increase negative visual impacts, to the extent allowed by state and federal law; and I. Establish a process for obtaining necessary permits for wireless communication facilities while at the same time ensuring compliance with applicable zoning, building, and safety requirements under this code.

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8.92.030 Definitions.

For the purposes of this Chapter, unless otherwise apparent from the context, the definitions below shall apply. Where any of the definitions in this Chapter may conflict with definitions in Chapter 8.08 of the Dublin Zoning Ordinance, the definitions in this Chapter shall prevail for purposes of this Chapter. A. Antenna. The term antenna shall mean any system of wires, poles, panels, rods, reflecting disc, or similar devices used for the transmission or reception of electromagnetic waves (or radio frequency signals) when such system is either external to or attached to the exterior of a structure, ground-mounted, or is portable or movable. “Antenna” includes devices having active elements extending in any direction, and directional beam-type arrays having elements carried by and disposed from a generally horizontal boom that may be mounted upon and rotated through a vertical mast or tower interconnecting the boom and antenna support, all of which elements are deemed to be a part of the antenna. B. Base Station. The term base station includes any structure other than a tower that supports or houses equipment in a fixed location that enables Federal Communications Commission (FCC)-licensed or authorized wireless communications between user equipment and a communications network. As an illustration and not a limitation, the FCC's definition refers to any structure that actually supports wireless equipment even though it was not originally intended for that purpose. Examples include, but are not limited to, wireless facilities mounted on buildings, utility poles and transmission towers, light standards or traffic signals. A structure without wireless equipment replaced with a new structure designed to bear the additional weight of wireless equipment constitutes a “Base Station”. C. Collocation. The term collocation shall mean the mounting of a wireless communication facility on or integrated within the same tower or structure as an existing, authorized wireless communication facility. D. Fully- Concealed Facility. The term fully-concealed facility refers to wireless communication facilities which are designed and constructed to blend in with the surrounding environment so that the antenna and related equipment are not readily visible. Examples include a cupola on a building, water tank, artificial tree, rocks and a utility pole where all antenna and related equipment are internally mounted or underground. E. Height. The term height shall mean the distance measured from ground level to the highest point on the wireless communication facility, including an antenna or piece of equipment attached thereto. In the case of “crank-up” or other similar towers whose height can be adjusted, the height of the tower shall be the maximum height to which it is capable of being raised. F. Owner or Operator. The term owner or operator shall mean the person, entity or agency primarily responsible for installation and maintenance of the wireless communication facility, which may or may not be the same person or entity which is the owner of the property on which the facility is located. G. Public Right-of-Way. The term public right-of-way shall mean and include all public streets and easements, now and hereafter owned by the City or other public entity, but only to the extent of the City or public entity’s right, title, interest or authority to grant a license to occupy and use such streets and easements for wireless communication facilities.

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http://www.codepublishing.com/CA/Dublin/Dublin08/Dublin0808.html#8.08

H. Radio Frequency (RF). The term radio frequency (RF) shall mean electromagnetic energy with wave lengths between the audio range and the light range. I. Readily Visible. The term readily visible means that an object can be seen from street level by a person with normal vision, and distinguished as an antenna or related equipment of a wireless communication facility, due to the fact that it is not fully-concealed, stands out as a prominent feature of the landscape, protrudes above or out from the structure ridgeline, or is otherwise not sufficiently camouflaged or designed to be compatible with the appurtenant architecture or building materials. J. Related Equipment. The term related equipment shall mean all equipment ancillary to the transmission and reception of voice and data via radio frequencies. Such equipment may include, but is not limited to, cable conduit and connectors, equipment pads, equipment shelters, cabinets, buildings and access ladders. K. Structure Ridgeline. The term structure ridgeline shall mean the line along the top of an existing roof or top of a structure, including existing parapets, penthouses, or mechanical equipment screens. L. Tower. The term tower shall mean a mast, pole, monopole, lattice tower, or other structure erected on the ground or on a structure designed and primarily used to support antennas. A ground or building mounted mast greater than 15 feet tall and 6 inches in diameter supporting one or more antenna, dishes, arrays, etc., shall be considered a wireless communications tower. M. Wireless Communication Facilities. The term wireless communication facilities shall mean a facility that transmits and/or receives electromagnetic signals, including antennas, microwave dishes, parabolic antennas, directional antennas and other types of equipment for the transmission or reception of such signals, towers or similar structures supporting the equipment, equipment buildings, shelters, cabinets, parking area and other accessory development. N. Section 6409(a). The term Section 6409(a) refers to Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, codified as 47 U.S.C. section 1455(a), as may be amended or interpreted in judicial or administrative decisions or implementing regulations. O. Section 6409(a) Modification. The term Section 6409(a) Modification means a collocation, modification, or replacement of transmission equipment at an existing wireless tower or base station that does not result in a substantial change in the physical dimensions of the existing wireless tower or base station pursuant to Section 6409(a). P. Substantial Change. The term substantial change for the purposes of a Section 6409(a) Modification shall mean:

1. For wireless towers outside the public right-of-way, a substantial change occurs when the proposed collocation or modification:

a. Increases the overall height more than ten (10) percent or the height of one additional antenna array not to exceed twenty (20) feet (whichever is greater); or

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b. Increases the width more than twenty feet (20) from the edge of the tower or the width of the tower at the level of the appurtenance (whichever is greater); or c. Involves the installation of more than the standard number of equipment cabinets for the technology involved, not to exceed four (4); or d. Involves excavation outside of the current boundaries of the leased or owned property surrounding the tower, including any access or utility easements currently related to the site.

2. For wireless towers within the public right-of-way and for all base stations, a substantial change occurs when the proposed collocation or modification:

a. Increases the overall height more than ten (10) percent or ten (10) feet (whichever is greater); or b. Increases the width more than six (6) feet from the edge of the tower or base station; or c. Involves the installation of any new ground-mounted equipment cabinets that are ten percent (10%) larger in height or volume than any existing ground mounted equipment cabinets; or d. Involves the installation of any new equipment cabinets on the ground when there are no existing ground-mounted equipment cabinets; or e. Involves excavation outside the area in proximity to the structure and other transmission equipment already deployed on the ground.

3. For all proposed collocations and modifications, a substantial change occurs when:

a. The proposed collocation or modification would defeat the concealment elements of the tower or base station; or b. The proposed collocation or modification violates a prior condition of approval, provided however that the collocation need not comply with any prior condition of approval that is determined to be inconsistent with the thresholds for a substantial change described in this section. The thresholds and conditions for a "substantial change" described in this section are mutually exclusive—the violation of any individual threshold or condition results in a substantial change. The height and width thresholds for a substantial change described in this section are cumulative for each individual wireless tower or base station. The cumulative limit is measured from the physical dimensions of the original structure for base stations and all sites in the public rights-of-way, and from the smallest physical dimensions that existed on or after February 22, 2012, for wireless towers on private property.

8.92.040 Exemptions.

The following wireless communication facilities are exempt from the standards of this Chapter, but shall fully comply with other applicable requirements of the municipal code including, but not

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limited to, adopted building, electrical, plumbing, mechanical, and fire codes: A. Antennas designed to receive video programming signals from direct broadcast satellite (DBS) services, multi-channel multipoint distribution providers (MMDS), or television broadcast stations (TVBS), provided that all of the following conditions are met:

1. The antenna measures 39 inches (one meter) or less in diameter within residential districts; or 78 inches (two meters) or less in diameter within commercial and industrial zoning districts; 2. If the antenna is mounted on a mast, the mast must measure less than twelve (12) feet in height; 3. The antenna does not pose a threat to public safety, including, but not limited to, minimum separation from power lines, compliance with electrical and fire code requirements, and secure installation, as determined by the Building Official; 4. The antenna is not located on a site or building with historical significance, as demonstrated by inclusion on any list of historical sites officially adopted by any local, state, or federal governmental body; 5. To the extent feasible, the antenna is installed in a location where it is not readily visible from the public right-of-way.

B. Amateur radio antennas that do not exceed the maximum building height for the zoning district in which it is located by more than 25 feet. If an antenna is installed on the roof of the building, the height of the antenna shall be inclusive of the building height. C. Public communication facilities, including personal wireless services, used and maintained by the City, or any fire district, school district, hospital, ambulance service, governmental agency, or similar public use. D. Minor repair and regular maintenance of an existing wireless telecommunication facility that does not increase the number, height, size, or appearance of the antennas or ancillary related equipment as previously approved by the City. E. All wireless communication facilities in the public right-of-way. Wireless communication facilities in the public right-of-way shall be subject to a Personal Wireless Facilities Services Permit as set forth in Chapter 7.04 of the Dublin Municipal Code, which sets forth the particular terms and provisions under which the approval to occupy and use the public rights-of-way of the City will be granted if occupancy of the public rights-of-way is desired or required. F. Any “co-location facility” that meets the requirements of California Government Code Section 65850.6. 8.92.050 Permitting Procedure.

A Site Development Review pursuant to Chapter 8.104 shall be required for all new or modified wireless communication facilities, unless otherwise noted in this Chapter. 8.92.060 Application Requirements.

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http://www.codepublishing.com/CA/Dublin/Dublin07/Dublin0704.html#7.04

A. New Wireless Communication Facilities. The following application materials are required for new wireless communication facilities:

1. Plans. Complete and accurate plans, fully-dimensioned and drawn to scale, which include the following items.

a. A depiction of all existing and proposed utility runs and points of contact.

b. A depiction of the leased or licensed area of the site with all rights-of-way and easements for access and utilities labeled in plan view.

c. Plan view and all elevations of a scaled depiction of the maximum permitted increase to towers, base stations and other support structures as authorized by Section 6409(a) of the 2012 Middle Class Tax Relief Act. The proposed project shall be used as the baseline for new facilities and the existing facility used as the baseline for modifications.

2. Authorization. A statement from property owner authorizing application. 3. Description of Services. A description of the services that the applicant proposes to offer or provide in conjunction with the proposed sites. 4. Definition of Service Area. Definition of the service area needed for coverage or capacity of a wireless communication facility and service area maps and information showing that the proposed facility would provide the needed coverage or capacity. 5. Alternative Site Analysis. Alternative site analysis and map showing all alternate sites, including all collocation opportunities within one-half mile, that were analyzed in the wireless communication service provider’s site selection process and any additional sites as required by the Community Development Director from which the needed coverage could also be provided, indicating the zoning for all such sites. The analysis shall address the potential for collocation at an existing or new site. 6. Visual Analysis. Photo simulations of the proposed project including a map depicting where the photos were taken. The visual impact analysis may require photo overlays, scaled models, renderings, or mockups as determined appropriate by the Community Development Director. 7. Noise Analysis. Noise impact analysis information for the proposed wireless communication facility including, but not limited to, equipment, such as air conditioning units and back-up generators. A manufacturer’s specification sheet may be provided in lieu of a noise impact analysis, if determined appropriate by the Community Development Director. 8. RF Emissions. Written documentation demonstrating that emissions from the proposed wireless communications facility are within the limits set by the FCC. The document shall include both the actual levels as they exist currently and the cumulative levels for the proposed facility and all other facilities in the vicinity. 9. Landscape Plan. Where applicable, the applicant shall submit a plan depicting

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existing surrounding landscaping, proposed landscaping, a landscape protection plan for construction and a maintenance plan (including an irrigation plan). 10. Other Information. The applicant shall submit any other relevant information as required by the Community Development Director.

B. Modifications to Existing Wireless Communication Facilities. The following application materials are required for modifications to all existing wireless communication facilities except Section 6409(a) Modifications:

1. Plans. Complete and accurate plans, full-dimensioned and drawn to scale, which include the following items.

a. A depiction of all existing and proposed utility runs and points of contact. b. A depiction of the leased or licensed area of the site with all rights-of-way and easements for access and utilities labeled in plain view.

2. Prior Permits. True and correct copies of all previously obtained land use approvals, including all required conditions of approval. 3. Noise Analysis. Noise impact analysis for the proposed wireless communication facility including, but not limited to, equipment, such as air conditioning units and back-up generators. A manufacturer’s specification sheet may be provided in lieu of a noise impact analysis, if determined appropriate by the Community Development Director. 4. RF Emissions. Written documentation demonstrating that emissions from the proposed wireless communications facility are within the limits set by the FCC. The document shall include both the actual levels as they exist currently and the cumulative levels for the proposed facility and all other facilities in the vicinity. 5. Other Information. The applicant shall submit any other relevant information as required by the Community Development Director.

8.92.070 Section 6409(a) Modification.

Except as expressly modified by this section, an application for a Section 6409(a) Modification shall be subject to the provisions of this Chapter. A. Application Materials. Notwithstanding Section 8.92.060 (Application Requirements), the following application materials are required for Section 6409(a) Modifications:

1. A site plan and elevation drawings for the facility as existing and as proposed with all height and width measurements explicitly stated. The plans must include plan views and all four elevations that depict the physical dimensions of the existing facility as it existed on February 22, 2012 or as approved if constructed after February 22, 2012. 2. A description of all construction that will be performed in connection with the proposed modification, including, but not limited to, the location of any excavations or deployments. 3. A written statement that explains in plain factual detail whether and how Section

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6409(a) and applicable implementing regulations require approval of the proposed Section 6409(a) Modification. A complete written narrative analysis shall state the applicable standard and all facts that would allow the city to conclude the standard has been met. Bare conclusions without factual support shall not constitute a complete written analysis. As part of the written statement the applicant shall include: (i) whether and how the support structure qualifies as an existing tower or existing base station; and (ii) whether and how the proposed Section 6409(a) Modification does not cause a substantial change in height, width, excavation, equipment cabinets, concealment, or permit compliance. 4. True, correct and complete copies of all permits and other regulatory approvals, including without limitation any conditions of approval, issued in connection with the tower or base station to be collocated on or modified.

B. Review and Required Findings. Notwithstanding the provisions of 8.92.050 (Permitting Procedures) and 8.92.080 (Development Standards and Regulations), the Community Development Director shall approve or deny a request for a Section 6409(a) Modification in accordance with this section and applicable federal law or regulations. The Community Development Director shall approve an application for a Section 6409(a) Modification if he or she makes the following findings: 1. The proposed modification does not cause a substantial change in the existing tower

or base station and otherwise fully qualifies as a Section 6409(a) Modification under applicable law;

2. The existing tower or base station was permitted with all required regulatory

approvals required at the time of construction; and 3. The proposed modification does not violate any legally enforceable standard or permit

condition reasonably related to public health and safety, including, but not limited to, building, structural, electrical, and safety codes.

A proposed modification to a wireless communication facility that does not qualify as a Section 6409(a) Modification shall be denied and will instead be subject to the requirements set forth in this Chapter for the specific type of wireless communication facility proposed. C. Other. Nothing in this section prevents the city from imposing other lawful conditions on the approval of a Section 6409(a) Modification including, but not limited to, conditions consistent with obligations imposed on the initial installation. Nothing in this section shall be construed to waive or limit the city’s proprietary right to control the use of its real or personal property for telecommunications purposes. 8.92.080 Development Standards and Regulations.

A. Residential Districts. Wireless communication facilities are prohibited on private property in all residential zoning districts and comparable Planned Development zoning districts except as indicated in Section 8.92.040. B. Location Criteria. All wireless communication facilities shall be located so as to minimize their visibility. The following measures shall be implemented:

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1. No wireless communication facilities shall be installed on an exposed ridgeline, or at a location readily visible from I-580, I-680, or scenic corridor identified in the Eastern Dublin Scenic Corridor Policy, or on property designated Parks/Recreation, Open Space, or Stream Corridor on the Dublin General Plan, unless it blends with the surrounding existing natural and artificial environment in such a manner as to not be readily visible, and a finding is made that no other location is technically feasible and complies with those policy documents; 2. No facility may be located within the front setback, along major street frontages where it will be readily visible or between the face of a building and a public street, bikeway or park, except for approved facade-mounted equipment or facilities located on existing structures;

3. No towers shall be installed closer than one half mile from any existing tower unless technologically required (technical evidence must be submitted to the Community Development Director showing a clear need for this facility, and the infeasibility of collocating it on an existing site), or visually preferable (i.e. fully-concealed facility that blends with the surrounding existing natural and artificial environment; 4. Each facility shall be operated in such a manner so as to minimize any possible disruption caused by noise. Backup generators shall only be operated during periods of power outages, and shall not be tested on weekends or holidays, or between the hours of 8:00 p.m. and 7:00 a.m. on weekday nights. At no time shall equipment noise from any source exceed an exterior noise level of 60 dB at the property line. If the facility is located within one hundred (100) feet of a residential use, noise attenuation measures shall be included to reduce noise levels to a level of 50 dBA measured at the property line. 5. All towers shall be set back at least twenty percent (20%) of the tower height from all property lines, and at least one hundred (100) feet from any public trail, park, or outdoor recreation area, unless it is a fully-concealed facility that blends with the surrounding existing natural and artificial environment.

C. Design Review Criteria. In addition to all other requirements set forth in this Chapter, all wireless communication facilities shall meet the following design requirements:

1. Minimizing Visual Impact. All wireless communication facilities shall incorporate appropriate techniques to camouflage, disguise and/or blend them into the surrounding environment. Wireless communication facilities shall be in scale and designed to blend with the existing natural or built surroundings and existing supporting structures. The City shall have the authority to require special design features for the wireless communication facilities in areas of particular sensitivity (e.g. proximity to historic or aesthetically significant structures, views and/or community features). Based on potential aesthetic impact, the order of preference for facility type is: (1) Collocation sites, when such siting minimizes adverse effects related to land use compatibility, visual resources, public safety, and other environmental factors, (2) building-mounted (façade or roof) facilities, (3) ground-mounted facilities and (4) a new tower. 2. Paint and Finish Materials. Wireless communication facilities including the antennas and related equipment shall be constructed out of non-reflective materials,

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painted and/or textured to match the existing support structure and painted to blend with their surroundings. 3. Related Equipment. All equipment shelters or cabinets must be concealed from public view or made compatible with the architecture of surrounding structures or placed underground. Support equipment pads, cabinets, shelters and buildings require architectural, landscape, color, or other camouflage treatment to minimize visual impacts. 4. Lightning Arrestors and Beacon Lights. Lightning arrestors and beacon lights shall not be included in the design of facilities unless required by the FAA. Lightning arrestors and beacons shall be included when calculating the height of facilities such as towers. 5. Height. The maximum height of a wireless communication facility shall be equal to the height limit for the district in which it is located. An exception to the height limit may be approved based on a visual analysis demonstrating that views of the facility are minimized or are substantially screened, and on an engineering analysis justifying the height of the proposed facility and demonstrating that a lower height is not feasible. 6. Lighting. Wireless communication facilities shall not be artificially lighted, unless required by the FAA or other applicable authority and designed to ensure the least disturbance to the surrounding views. 7. Satellite Dish/Parabolic Antennas - Ground-Mounted. Satellite dish or parabolic antennas that are ground-mounted shall be situated as close to the ground as possible to reduce visual impact without compromising their function. No such antenna shall be located in any front yard, nor in a corner side yard unless the antenna is screened from pedestrian-level view. No such antenna exceeding 39 inches in diameter shall be located within a required setback unless approved through a Site Development Review application upon a showing that no reasonable alternative location is available. 8. Roof Setbacks. Roof-mounted antennas shall be constructed at the minimum height possible to serve the operator’s service area. Roof mounted antennas shall be designed to minimize their visibility and blend with the surroundings. Placing roof mounted antennas in direct line with significant view corridors shall be avoided.

8.92.090 Removal of Abandoned Facilities.

Any wireless communication facilities that are not operated for a continuous period of twelve (12) months shall be considered abandoned, and the owner of such facilities or the owner of the property upon which the facilities are located shall remove the same within ninety (90) days of receipt of notice from the Community Development Director notifying the owners of the removal requirement. If such facilities are not removed within the ninety (90) days, the Community Development Director may cause the antenna or tower to be removed at the expense of the owners of the facilities and the property. If there are two (2) or more users of a single tower, the tower shall not be deemed abandoned and shall not be subject to these provisions until all users have abandoned the facility.”

Section 2. Subsection 8.36.110.C.3.c (Utility and Communication Facilities) of the

Dublin Municipal Code is hereby amended to read as follows:

“c. Utility and communications facilities. Except as otherwise provided in Chapter 8.92,

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Wireless Communication Facilities Regulations, individual radio and television receiving antennas, wireless communication facilities, satellite dishes, transmission and distribution poles and towers for public utilities are not subject to the height limits of this Chapter. See Chapter 8.92 Wireless Communication Facilities regarding development regulations and land use approvals for those facilities.” Section 3. Subsection 8.104.020.I (Site Development Review) of the Dublin

Municipal Code is hereby added to read as follows: “I. Minor modifications to Wireless Communications Facilities. Minor modifications to existing wireless communication facilities that involve no physical change visible from the public right-of-way.” Section 4. Subsections 8.104.030.A.4 and 8.104.030.A.5 (Site Development

Review) of the Dublin Municipal Code are hereby amended to read as follows: “4. Modifications to Wireless Communications Facilities. Modifications to existing wireless communication facilities that involve changes to the appearance where the change is in substantial conformance with an approved Site Development Review and Section 6409(a) Modifications as defined in Chapter 8.92. These facilities are also subject to the provisions of Chapter 8.92, Wireless Communication Facilities.” 5. Other Improvements. All other improvements determined by the Community Development Director to be minor in nature and requiring review.” Section 5. Section 8.104.040.A.12 (Site Development Review) of the Dublin

Municipal Code is hereby amended to read as follows: “12. Wireless Communications Facilities. All new wireless communication facilities and modifications to wireless communication facilities that are not in conformance with an approved Site Development Review. These facilities are also subject to the provisions of Chapter 8.92, Wireless Communication Facilities.” Section 6. Severability. If any section, subsection, subdivision, paragraph,

sentence, clause or phrase of this Ordinance, or its application to any person or circumstance, is for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases of this Ordinance, or its application to any other person or circumstance. The City Council of the City of Dublin hereby declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause or phrase hereof, irrespective of the fact that any one or more other sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable.

Section 7. Effective Date. This ordinance shall take effect thirty (30) days after its

adoption. Section 8. Posting. The City Clerk of the City of Dublin shall cause this Ordinance to

be posted in at least three (3) public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California.

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PASSED, APPROVED AND ADOPTED this ___ day of _____, 2017, by the following vote:

AYES: NOES: ABSENT: ABSTAIN:

___________________________________ Mayor

ATTEST: ___________________________________

City Clerk

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DUBLIN PLANNING COMMISSION A G E N D A

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