Administrative Office

The “gap-in-service” nature of this cell tower Use Permit request meant that a facility in some location in this South County area was required to be approved in order to comply with 47 U.S. Code § 332(c)(7)(b)(ii)). Response to F1 – Agree

The difference between the Board of Supervisors’ Resolution 15-043, No.7, April 28, 2015 use of the name “Bradley-Parkfield LUAC” and the Monterey County official Website use of the name “South County LUAC” for the same LUAC, created confusion that contributed to an RMA planner’s misunderstanding about the South County LUAC. Response to F2 – Agree Explanation: It is not difficult to see how confusion might have been introduced by naming two communities in South County rather than the larger geographic area, but this statement is likely a result of testimony from the planner and a response to this finding would require knowledge of the planner’s thoughts. This same confusion has not been an issue for other planners.

The RMA Planning draft resolution and briefing for the Application both inaccurately asserted that (1) South County had no LUAC, and (2) that the Application did not need to be sent to the LUAC for review. These errors denied a required hearing and stifled public voice on design and local considerations for a large, visible project. Response F3: Short Response: Respectfully, the County disagrees partially with this finding. The staff report package did inaccurately assert that (1) South County had no LUAC, and (2) that the Application did not need to be sent to the LUAC for review. As such, the public was not afforded an opportunity to voice concerns via the LUAC, which is a valuable part of the land use permit process. This also means that the LUAC members themselves did not have opportunity to provide comments as part of the process, which would have given the decision maker local perspective to consider during the hearing. The public was able to voice opinions at the duly noticed public hearing at the October 28, 2018 Zoning Administrator, but the opportunity for participation was less than it would have been if the LUAC had taken place. Additional Discussion: Board of Supervisors Resolution 15-043 establishes procedures for Land Use Advisory Committees (LUACs) in Monterey County. The purpose of a LUAC is to provide a venue for the local community to provide input on proposed projects. LUACs serve to provide the Appropriate Authority comments and

The Application’s one-sentence dismissal of the alternative site, “Unfortunately, due to the mountainous terrain access and road constraints the proposed site was not physically feasible for the construction of the proposed tower” was incorrect. As a result, a constrained and inappropriate site selection was approved. Response F4: Short Response: Respectfully, the County disagrees partially with this finding. Determination of feasibility for a cell site requires multi-faceted analysis, due to the numerous factors that can affect coverage, including staff’s experience from past projects. Additional information was not sought by staff, so there is no way to be certain if the applicant’s statement about alternative sites was correct or incorrect. Additional Discussion: Alternative site analysis is not expressly required by County Code, but Section 21.64.310.H.3 does refer to a list of application submittal requirements established by the Department. The Appropriate Authority must find that the applicant has demonstrated that the subject site is the most adequate for provision of services as required by the FCC (Section 21.64.310.J.2 MCC). In hind sight, the statement received from the applicant is unclear as to whether the “mountainous terrain” is relevant to the site itself, or the relative location/positioning to surrounding mountains that could pose challenges to wireless signals if it were moved to a location on that large parcel. Additional detail should have been sought by the planner during analysis. It has been generally demonstrated with prior telecommunication projects that mountainous terrain presents limited opportunity for coverage, so alternatives depend on finding willing property owners where the facility can adequately provide service to the intended coverage area. However, it should not have been assumed by staff that this was the case without adequate evidence provided by the applicant. It has been the practice of County Planning to request telecommunication applicants demonstrate that an alternative site was not feasible, and that the proposed project is the minimum necessary, to provide the intended coverage. On September 5th, 2019, Planning Management provided training for the all Planning Staff relative to alternative site analysis as part of a site visit to the PLN180317 project site.

The RMA Planning public hearing notices for this project complied with State and County code, but were structurally ineffective in providing the local community with 7egaP reasonable awareness of the significant project being proposed for their South County community. Response F5: Short Response: The County agrees with this finding. State Code requires notification by two of three methods (mail, publication, posting), County Code requires notification using all three methods. Notice for this project met the legal requirements. However, cell phone towers are taller than typical projects so the visual impacts can be broader. Subsequently, County updated the policy for noticing public hearings to extend the distribution radius for cell phone tower projects in certain zoning districts. Additional Discussion: As stated in the Finding, public noticing for the October 25, 2018 Zoning Administrator hearing was done in full compliance with all state and local regulations. In addition to a newspaper notice and posting the site, local residents and neighbors within 300 feet of the project were directly sent notice of the hearing. One member of the community participated in the October 25, 2018 hearing in person. Subsequent to approval of this project, and in response to the concerns of the community, County RMA received a referral from District 3 Supervisor to increase the noticing radius for cell towers in the rural areas of the County (Board Referral 2020.07). On July 14, 2020, the Board of Supervisors accepted the Director’s Standard Operating Procedure to require a notification by mail within a distance of 1,500-feet of a proposed wireless communication facility (or more if determined necessary by the Chief of Planning) to meet the purpose of public notification in the Farmland, Rural Grazing, Permanent Grazing, Resource Conservation, and Open Space zoning districts.

The approved cell tower failed to meet multiple site and design conditions of MCC 21.64.310 including: E.2 (has local citizen input on impact and alternative sites), H.1a (preserve visual character, aesthetic value of parcel and surrounding land), H.1c (not sited to create clutter & negatively affect specific views), H.1d (designed to minimize visual impact), H.1e (screened from any public viewing areas), H.2d (designed to mitigate potentially significant adverse visual impacts), and J.3 (complies with all applicable requirements of 21.64.310). As a result of these multiple failures, this application did not meet a required finding for Use Permits as listed in MCC 21.74.050.B.1 (will not be…detrimental or injurious to property and improvement in the neighborhood.) and should not have been approved. Response F6: Short Response: Respectfully, the County disagrees fully with this finding. Conclusions drawn by the CGJ Report in this finding was based on a portion of language in the code. The Zoning Administrator, as the decision-making authority by Code, held a public hearing and considered the testimony. Based on their independent judgement, the Zoning Administrator determined that the project met the required findings. There was no appeal filed contesting this determination. 8egaP Additional Discussion: Section 21.64.310.E reflects a finding that defers decision making from the State to local government as a basis for adopting the ordinance establishing Chapter 21.64.310 into the Monterey County Code (MCC), and is not part of the decision-making process for projects. While it recognizes local governments and citizens are in a better position than the Public Utilities Commission (PUC) of the State of California to recognize impacts, it goes on to defer authority to the local government to regulate the location and design of cell sites. LUACs are a very important part of that process, but were established by the local government to provide input from the local community to the ultimate decision-maker. Section 21.64.301.H MCC includes General Development Standards. Many of these Development Standards have additional qualifying language stating, “to the maximum extent feasible”. For example, Section 21.64.310.H.1.e states in whole that: “Wireless communications facilities shall be screened from any public viewing areas to the maximum extent feasible [Emphasis added].” As such, a conclusion drawn about the project approval needs to be based on the entire language of the code, which is less exclusive than what is identified in the CGJ Finding. Ultimately the Zoning Administrator, the Appropriate Authority in this case, determined that these General Development Standards were met to the maximum extent feasible based on their independent judgement and review of the project application materials. County Code affords an aggrieved party an avenue to appeal the ZA decision to the Board of Supervisors to exhaust Administrative Remedies if said party feels that the findings were not supported by the evidence. No appeal of the ZA action was filed.

RMA planners were not diligent or accurate in how they determined, validated, and used certain facts, descriptive information, and technical data in the Application. This damaged the credibility of the Application and undermined local trust in the competence and the fairness of RMA Planning. Response F7: Short Response: The County agrees with this finding. This incident, which appears to have been an isolated case, was an unfortunate circumstance of protocols not being followed during the review phase of this project. Additional Discussion: Planners are empowered to make initial assessment of LUAC applicability. However, the protocol is for there to be review by the Planning Manager and/or Chief of Planning, especially where there is any question or potential for local controversy. This looks as if it was an isolated incident of staff not following the protocol. County recognizes that the specific project planner for this case should have been more thorough in review of the application materials, and routed them to the South County LUAC for review. In addition, Planning Managers/Chief should have been more diligent in their oversight of this case and caught the error earlier in the process. As noted in prior responses, actions have taken place since this project was approved in an attempt to prevent the same mistakes from happening in the future. The entire planning staff has been trained on 9egaP these actions. The Standard Operating Procedures (SOPs) for LUAC review are being updated to be clear on roles and responsibilities with specifically requiring review by the Manager/Chief prior to routing applications (related to both process and completeness).

RMA Planning staff’s limited expertise in wireless communications facilities’ policies, regulations, and rules, plus RMA planner confusion on the applicability of County standards for aesthetics and visual character, were contributing factors to the siting and design of the cell tower in a manner unacceptable to the Bryson Hesperia Community. Response F8: Short Response: Respectfully, the County disagrees partially with this finding. A project planner failed to understand the policies and regulations related to cell towers and County standards, which contributed to the series of events covered in this report. However, specific expertise in wireless communication facilities is not required or expected of staff. Additional Discussion: Planning does not require being an expert in any area, but does require knowledge and appropriate application of the policies and regulations. As noted in prior responses, the belief is that this stems more from an isolated incident of staff not following the protocol rather than a systemic issue. Training has been administered to the entire planning staff with respect to cell towers and the level of analysis that should be undertaken regarding site selection, visual impacts, County wireless regulations, and when projects should be referred to a LUAC. This includes planning staff being taken on September 5, 2019 as a group for a site visit down to the project site for PLN180317, with the tower in place, to discuss the analysis in the staff report and the findings in the resolution. Multiple periodic trainings have also been conducted with staff at general staff meetings since this project was approved on relevant topics such as site selection, alternative analysis, LUAC procedures, FCC shot clocks, and the overall application review process. Planning managers also stayed in contact with key members of the community after the project approval to answer questions and provide information from the applicant when possible, including a post-operational RF-EME survey.

Monterey County wireless communications code (MCC Section 21.64.310) lacks provisions to permit staff to secure outside experts, at applicant expense, when needed. This code omission limited planner resources and flexibility to overcome the technical challenges with this application. It reduced RMA Planning staff’s ability to process the Application in a thorough, professional manner. Response F9: Short Response: Respectfully, the County disagrees fully with this finding. Although there are no specific provisions with respect to securing outside experts. County code does not prohibit staff from requesting assistance from outside experts, and in some sections actually gives staff the ability to require additional information if it determined to be needed. Additional Discussion: 01egaP MCC Section 21.64.310 does not have language that requires use of outside experts; however, it also does not preclude use of outside experts where/when needed. There are sections of the code that could be used to require an applicant to provide additional information. For example, MCC Section 21.64.310.G.1.g states that as part of registration package, in addition to the specific items listed, the county can require: “Such other information as the Director of Planning may reasonably require”. Additionally, during environmental review the California Environmental Quality Act (CEQA) allows for planning to require additional information that may not have been part of the original application submittal to determine the level of significance of potential impacts. Technical reports are provided by experts hired by the applicant, subject to review by staff. If staff questions the information submitted, there is the ability to request clarification by the applicant’s technical expert, or require the applicant to pay for a peer review (consultant hired by County with cost paid by applicant). RMA retains lists of qualified consultants to utilize as needed. In this specific case, staff determined that a peer review was not required.

RMA Planning’s site visit procedures for planners did not adequately account for area and community differences in the County. They also were not formalized. Planner site visits at the time of this application did not require any preorientation to highlight area-specific factors. These shortfalls reduced RMA planners’ ability to understand actual conditions, effects, and the significance of the Application on the South County community. Response to F10 – Disagree Explanation: The RMA did not have written “site visit procedures.” Planners learned from peers and managers on what to look for when on a site visit. All planners have been and continue to be encouraged to physically visit the sites of their projects to get a sense of the project site and its surroundings. 2egaP

RMA Planners’ high work volume, plus the complex nature of processing a cell tower application, also were significant contributing factors to the siting and design of the cell tower in a manner unacceptable to the Bryson Hesperia Community. Response to F11 – Partially Disagree Explanation: High work volume and complexity are inherent aspects of planning for the County of Monterey. This may lead to important details getting missed or overlooked generally, but hundreds of projects are processed annually without incident. The significance of the planner’s workload on this project is likely a minor contributor to the results.

The wireless communications facility supplemental add-on portions to RMA Planning’s land use development application form were out of date. These addons lacked essential, contemporary elements to account for current wireless communications facility types, new FCC application handling requirements, FCC shot clocks, and FCC shot clock tracking/ tolling methods. This increased planner confusion and created a lack of information needed to facilitate planner processing of the Application in a thorough and professional manner. Response to F12 – Disagree Explanation: Housing & Community Development (“HCD”, formally under the RMA) does not have supplemental application information for wireless communication facilities that are in use. Some old version of the materials may exist but are not in regular use. This has not hindered the review and processing of any other permits including wireless facilities. Standardized and simple application forms are used for many different types of permit applications with HCD. The information necessary to review a project is generated by the planner using adopted rules and regulations. The planner must review the plans, reports, rules, regulations, and do a site visit and create a list of materials required from the applicant to process the permit.

RMA Planning managers displayed a high degree of internal responsiveness in reaction to the August 28, 2019 meeting in South County about the cell tower. Their subsequent actions were not visible to the community, but represented a quiet, positive example of professional and effective responsiveness to the community’s concerns. Response F13: Short Response: The County agrees with this finding. Management took this incident seriously and has looked for ways to coach staff based on the lessons learned. Additional Discussion: RMA appreciates CGJ recognition of RMA efforts. We use cases like this to teach planners so we can try to prevent a similar situation from happening in the future. The Board of Supervisors commissioned a report of the RMA by Citygate Associates, LLC. This report was completed July 22, 2020 and accepted by the Board on July 28, 2020. Recommendations provided in Citygate’s report are directed at use of LUACs and building community trust. 11egaP PREVIOUSLY PROVIDED RESPONSES, cont’d REPORT TITLE: 2018 - 2019 Monterey County Civil Grand Jury Final Report – “MONUMENT TO A FAILED PROCESS: South County Use Permit PLN 180317” RESPONSE BY: County of Monterey Housing & Community Development RESPONSE TO: Recommendations: R1, R2, R3, R6, R7 and R10