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HomeMy WebLinkAboutTC Agd Pkt 2015-05-20 (2)TOWN OF TIBURON 1505 Tiburon Boulevard Tiburon, CA 94920 Town Council Meeting May 20, 2015 Agenda Item: J STAFF REPORT To: From: Mayor and Members of the Town Council Community Development Department Subject: Recommendation to Consider Amendments to Title IV, Chapter 16 (Zoning) of the Tiburon Municipal Code Regarding Wireless Communication Facilities (Ordinance ----First Reading) Reviewed By: BACKGROUND On March 4, 2015, the Town Council received a presentation by Greg Stepanicich, legal counsel for the Marin Telecommunications Agency, regarding recent changes in federal law with respect to local regulation of certain types of wireless communication facilities (WCF). Excerpted minutes of that presentation are attached as Exhibit A. The presentation included a memo, since updated, discussing in some detail the new federal statutes and FCC rulings. The updated memo is attached as Exhibit F. Following review of the matter, staff determined that amendments to the Town's zoning ordinance are required to comply with the federal law. Staff has drafted proposed amendments to the zoning chapter of the Tiburon Municipal Code to incorporate the revisions. ANALYSIS The proposed ordinance (Exhibit B) sets forth amendments responsive to recent federal legislation and FCC rulings regarding WCF projects and deadlines for acting on applications for such projects. Briefly, certain eligible WCF facilities (including modifications to existing wireless towers and base stations, removal of transmission equipment, and replacement of transmission equipment), are now governed by Section 6409(a) of the Middle Class Tax Relief and Jobs Creation Act of 2012 ("Act"). Projects governed by the Act are now subject only to ministerial (non -discretionary) review at the local agency level, and must be acted upon by the local agency within 60 days of application submittal, with very limited opportunities for processing time extensions. As noted by staff at the Town Council meeting in March, the number of wireless communication facilities in Tiburon that would be governed by the Act is small (five), and while expansion of existing facilities through future modification or eligible co -location projects cannot be ruled out, Town Council ivlecting May 20, 2015 staff considers the likely impact of the new federal regulations and FCC rulings on Tiburon to be limited and relatively minor in scope. The proposed zoning amendments would modify existing provisions to establish three tiers of review for WCF proposals: 1) Ministerial review by the Director of Community Development for co -location proposals governed by Section 6409(a) of the Act; 2) Potentially streamlined discretionary reviews for co -location proposals not governed by Section 6409(a) of the Act; 3) Discretionary review of all other WCF proposals, including conditional use permit, design review approval, and compliance with the Tiburon Wireless Communication Facilities Standards. Processing timelines are different for each tier; 60, 90 or 150 days respectively, with time extension of deadlines allowed only by mutual consent of the Town and applicant. The amendments would also incorporate provisions of Section 6409(a) with respect to nonconforming uses, and update two tables within the zoning ordinance to reflect the creation of a ministerial WCF permit application process. Relevant portions of the current Municipal Code sections (redlined to reflect the proposed amendments) are attached as Exhibit C. PLANNING COMMISSION REVIEW The Planning Commission held a public hearing on the proposed amendments on April 22, 2015. Following public testimony and discussion, the Commission suggested some minor revisions and recommended approval to the Town Council through adoption of Resolution No. 2015-03 (Exhibit D). Minutes of the Planning Commission meeting are attached as Exhibit E. ENVIRONMENTAL REVIEW Staff has preliminarily determined that the proposed amendments are exempt from further review under the California Environmental Quality Act (CEQA) on the basis that they are ministerial actions required to comply with federal law and that they are categorically exempt based on exemptions for Minor Alterations in land Use Limitations pursuant to CEQA Guidelines Section 15305. The Town Council would finalize this determination if it approves the amendments. RECOMMENDATION Staff recommends that the Town Council: 1. Hold a public hearing and consider any testimony. 2. Deliberate upon the proposed amendments. 3. Introduce the draft ordinance regarding the Zoning Ordinance amendments. The procedure would be to move to read by title only, waiving any additional readings, and introduce the ordinance amending Title IV, Chapter 16 (Zoning) of the Tiburon Municipal Code. Pass the reading by roll call vote. If the first reading is passed, the ordinance will return for final adoption on a future consent calendar. TOWN OFTIBURON Page 2 of 3 Town Council Meeting May 20, 2015 EXHIBITS A. Excerpt of Minutes of Town Council meeting of March 4, 2015. B. Draft Ordinance. C. Existing municipal code sections being amended (redlined version). D. Planning Commission Resolution 2015-03. E. Planning Commission Minutes of April 22, 2015. F. Memo from Greg Stepanicich dated April 16, 2015. Prepared By: Scott Anderson, Director of Community Development TOWN OFTIBLURON Page 3 of 3 TOWN COUNCIL MINUTES CALL TO ORDER Mayor Doyle called the regular meeting of the Tiburon Town Council to order at 7:30 p.m. on Wednesday, March 4, 2015, in Town Council Chambers, 1505 Tiburon Boulevard, Tiburon, California. ROLL CALL PRESENT: COUNCILMEMBERS: Doyle, Fraser, Fredericks, O'Donnell, Tollini PRESENT: EX OFFICIO: Town Attorney Danforth, Director of Administrative Services Bigall, Director of Community Development Anderson, Planning Manager Watrous, Minute Clerk Hennessy ORAL COMMUNICATIONS There were no comments. PRESENTATION • Federal Communications Commission (FCC) Wireless Siting Policies — Greg Stepanicich, Marin Telecommunications Agency (MTA) Mr. Stepanicich reviewed the Telecommunications Act of 1996 regulating wireless facilitates and cell towers and interpretations of FCC requirements since its adoption. In 2014 the FCC published an interpretation of statute 6409(a) that requires any application for co -location of a wireless facility at any licensed wireless facility that existed prior to 2012 and approved under local requirement, to be approved as long as the changes are not found to be substantial. He stated that local jurisdictions must approve a tower or facility outside the public right-of-way, with an increase -in height of 20' or 10%, whichever is greater, and a tower within the right-of- way, with a height increase of 10% or 10', whichever is greater. He stated that building codes and safety standards reasonably related to health and safety will apply. The review period is limited to 60 days after an application is complete, although this can be extended by mutual agreement. If the reviewing entity fails to act, the application is deemed to be approved. He reviewed rules regarding when the review period clock starts and limitations on incompleteness Letters. The new rules become effective April 8, 2015. He suggested the Town review its current rules and procedures as the Planning Commission will not have the discretion to deny an application for many changes on existing facilities. In response to questions by the Council, Mr. Stepanicich stated facilities can be reviewed and Town Council Minutes 06-2015 March 4, 2015 Page 1 limitations can be imposed regarding height standards. He noted that the FCC has federal standards regarding environmental concerns of emissions from radio towers, and as long as the changes meet the federal standards, the emissions cannot be considered in making a decision. He stated new facilities would still standare subject to lscretionary review ds than what federal Banda ds have declared. that there is a very clear prohibition on requiring morestringent Director of Community Development Anderson stated that staff is not particularly concerned about the new regulations due to the small number (only five) and nature of the existing wireless facilities in Tiburon to which the new collocation rules would apply. CONSENT CALENDAR 1. 2340 Paradise Drive — Adopt resolution of findings for denial of an appeal of Design Review Board approval of a site plan and architectural review for the construction of additions to an existing two-family dwelling (Community Development Department) The Mayor asked for public comment. There being none, he called for a motion. MOTION: To adopt Consent Calendar Item No. 1, as written. Moved: Fraser, seconded by Fredericks Vote: Unanimous ACTION ITEMS 1. Appointments to Town Boards, to fill vacancies on Towntees — Consider Boards, Commissions and ent of commissioners and appointments Committees (Town Clerk Crane Iacopi) There was a brief discussion of the Town interested cll, and they andidates to aexpired terms and to make reed to acct the Town Jerk's recommendation for reappointing o appointments to the Heritage & Arts Commission and the Building Code Appeals Board. MOTION: To appoint Laura Fennema to the Mosquito & Vector Control District Moved: O'Donnell, seconded by Fredericks Vote: Unanimous MOTION: To appoint Sandra Chin to the Heritage & Arts Commission Moved: O'Donnell, seconded by Fraser Vote: Unanimous MOTION: To reappoint the following persons: Erica Williams to Planning Commission Linda Emberson and John Kricensky to Design Review Board Peter Winkler to Parks, Open Space & Trails Commission Mark Swanson to Building Code Appeals Board Town Council Minutes 06-2015 March 4, 2015 Page 2 1 ORDINANCE NO. XXX N. S. 2 3 4 AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF TIBURON 5 AMENDING MUNICIPAL CODE TITLE IV, CHAPTER 16 (ZONING) REGARDING 6 WIRELESS COMMUNICATIONS FACILITIES 7 8 9 SECTION 1. FINDINGS. 10 11 A. On April 22, 2015, the Planning Commission adopted Resolution No. 2015-03 12 recommending to the Town Council that various text amendments be made to Title IV, 13 Chapter 16 (Zoning) of the Tiburon Municipal Code. 14 B. The Town Council held a duly noticed public hearing on , 2015 and has 15 heard and considered all public testimony on the proposed Ordinance. 16 C. The Town Council finds that all notices and procedures required by law attendant to the 17 adoption of this Ordinance have been followed. 18 D. The Town Council finds that the amendment actions made by this Ordinance are 19 necessary for the protection of the public health, safety, and welfare and to comply with 20 federal law. 21 E. The Town Council has found that the amendments made by this Ordinance are consistent 22 with the goals and polices of the Tiburon General Plan and other adopted ordinances and 23 regulations of the Town of Tiburon, and further the intent and purposes of General Plan 24 goals and policies. 25 F. The Town Council finds that adoption of this ordinance is exempt from the requirements 26 of the California Environmental Quality Act (CEQA) pursuant to Section 15305 (Minor 27 Alterations to Land Use Limitations) of the CEQA Guidelines, as well as being a 28 ministerial action taken to comply with federal law. 29 30 SECTION 2. ADOPTION OF AMENDMENTS TO MUNICIPAL CODE. 31 32 (A) Title IV, Chapter 16, Section 16-42.040 is amended to read as follows: 33 16-42.040 - Permit requirements for wireless communication facilities. 34 A. Wireless Communication Facilities Governed by Section 6409(a) of the Middle 35 Class Tax Relief and Jobs Creation Act of 2012 ("Tax Act"). An applicant for 36 a facility governed by Section 6409(a) of the Tax Act must file an 37 administrative WCF permit application for review and ministerial decision by 38 the director. Said decision shall be rendered within sixty (60) days of the filing 39 of the application, unless tolled pursuant to the Tax Act. The decision of the Town of Tiburon Ordinance No. XXX N. S. TC First Reading Draft 4-22-2015 Page 1 1 40 director may be appealed within five (5) calendar days to the Planning 41 Commission, whose decision shall be final. 42 43 B. Wireless Communication Co -location Facilities Not Governed by Section 44 6409(a) of the Middle Class Tax Relief and Jobs Creation Act of 2012. An 45 applicant for a co -location facility not governed by Section 6409(a) of the Tax 46 Act may file a formal written request for waiver of the requirements for a 47 conditional use permit with the director. It is the responsibility of the applicant 48 to establish evidence in support of the waiver criteria required by this section. 49 The director may waive the requirements for a conditional use permit and 50 instead require a site plan and architectural review permit only for co -locations 51 that meet the following criteria: 52 53 1. Co -location. The proposed facility or equipment is co -located on or 54 adjoining an existing WCF; 55 56 2. Preferred location. The proposed facility is located on a property developed 57 predominantly with commercial land uses; 58 59 3. Stealth design. The proposed WCF is designed or located in such a way that 60 the facility is not readily recognizable as wireless communications 61 equipment to an average person; 62 63 4. Prior approval and compliance. The existing WCF was subject to 64 conditional use permit approval and complies with the town's policies and 65 regulations; and 66 67 5. Existing environmental compliance. The existing WCF has a certified 68 environmental impact report or adopted negative declaration or mitigated 69 negative declaration, and the existing facility has incorporated the required 70 mitigation measures. The new equipment or structures do not constitute a 71 substantial change in the project or new information as outlined in Public 72 Resources Code Section 21166. 73 74 Applications processed pursuant to this subsection (B) shall be acted upon 75 within ninety (90) days of submittal of a complete application. 76 77 C. All Other Facilities. Wireless Communication facilities that do not fall under 78 subsections A or B must go through the following process. 79 80 1. Public notice of application filing. 81 82 (a) Within fifteen (15) days after the filing of a conditional use permit 83 application for a WCF with the Town of Tiburon, the town shall give 84 written notice of such filing to all property owners within a six - 85 hundred -foot (600') radius of the proposed facility, to a newspaper of Town of Tiburon Ordinance No. XXX N. S. TC First Reading Draft 4-22-2015 Page 1 2 86 general circulation within the Town of Tiburon, and to the presidents or 87 their designees for receipt of notices of each of the affected 88 homeowners associations as determined by the director. 89 90 (b) Notice of the filing of the application shall also be posted by the 91 Planning Division on the town's web site and on the public notice 92 bulletin board outside town hall within fifteen (15) days of the date of 93 the filing of the application, and such notice shall remain in such 94 location for a period of at least thirty (30) days thereafter. 95 96 (c) For applications on land owned by a public agency other than the 97 Town of Tiburon, written notice and a copy of the Town of Tiburon's 98 WCF regulations shall be provided to the public agency within fifteen 99 days of filing of the application. 100 101 2. Review and approval. 102 103 (a) Any person who proposes to install or operate a WCF pursuant to 104 this subsection (C) shall first obtain approval of a conditional use permit 105 in compliance with section 16-52.040 (conditional use permit), unless 106 the facility is exempt from securing such permit under section 16- 107 42.030 (applicability). The review authority may approve a conditional 108 use permit for a WCF only upon making the finding that the project is 109 consistent with this section and is in substantial compliance with 110 applicable requirements of the most current Tiburon Wireless 111 Communication Facilities Standards adopted by resolution of the town 112 council. 113 114 (b) Any person who proposes to install or operate a WCF shall first 115 obtain site plan and architectural review approval in compliance with 116 section 16-52.020 (site plan and architectural review), unless the facility 117 is exempt from securing such permit under section 16-42.030 118 (applicability). 119 120 (c) Applications processed pursuant to this subsection (C) shall be acted 121 upon within one hundred fifty (150) days of submittal of a complete 122 application. Conditional use permit and site plan and architectural 123 review applications may be processed concurrently. 124 125 3. Exceptions. The review authority may grant an exception to any 126 requirement of division 16-42 or any mandatory standard contained 127 within the Wireless Communication Facilities Standards upon making 128 findings that: (1) strict compliance precludes the reasonable 129 accommodation of the communication needs of the operator as set forth 130 in federal and/or state rules and regulations; (2) there are no other Town of Tiburon Ordinance No. XXX N. S. TC First Reading Draft 4-22-2015 Page 1 3 131 feasible alternatives; and (3) either state or federal law requires the town 132 to issue the exception or the exception will serve the public interest 133 despite the conflict with the mandatory standards. 134 135 D. Length of conditional use permit approval—Mandatory review/renewal. 136 137 1. A conditional use permit issued for a WCF approved on or after January 1, 138 2007 shall be valid for an initial period of ten (10) years after final 139 approval, unless a shorter duration is approved on the bases of public safety 140 reasons or substantial land use reasons. At least ninety (90) days prior to 141 expiration of the ten-year period approval, the permit holder shall file an 142 application for review/renewal of the WCF permit. The permit holder shall 143 be solely responsible for timely filing of, and for all costs associated with, 144 the processing of applications for mandatory reviews/renewals. 145 146 2. A conditional use permit issued for a WCF approved prior to January 1, 147 2007 shall be subject to the specific conditions of the permit with respect to 148 duration and periodic mandatory review/renewal. At least ninety (90) days 149 prior to expiration of the permit, the permit holder shall file an application 150 for review/renewal of the WCF Permit. The review authority shall conduct 151 a public hearing for the purposes of verifying continued compliance with 152 the findings and conditions of approval under which the application was 153 originally approved, as well as compliance with other applicable provisions 154 in the Municipal Code. Permit review/renewals are required every five (5) 155 years, unless a longer time period is approved by the review authority, or 156 another time period is set forth in the permit conditions. The permit holder 157 shall be solely responsible for timely filing of, and for all costs associated 158 with, the processing of applications for mandatory reviews/renewals. 159 160 (B) Title IV, Chapter 16, Section 16-42.080 is amended to read as follows: 161 16-42.080 - Nonconforming facilities. 162 A. Any WCF in existence prior to December 2, 2005 that is nonconforming to the 163 provisions of this division 16-42 may continue to be used. Such nonconforming 164 facilities may continue to be operated, repaired, and maintained but shall not be 165 enlarged, expanded, relocated, or modified in any material manner, as determined 166 within the reasonable discretion of the director, without conforming to provisions of 167 division 16-42. Notification of nonmaterial modifications shall be provided within thirty 168 (30) days to the review authority by the director. 169 170 B. Exception. Facilities Governed by Section 6409(a) of the Middle Class Tax Relief and 171 Jobs Creation Act of 2012 are not subject to the provisions of this section unless the 172 proposed modification substantially changes the physical dimensions of the existing 173 tower or base station, as those terms are defined in the Act. Town of Tiburon Ordinance No. XXX N. S. TC First Reading Draft 4-22-2015 Page 1 4 174 175 (C) Title IV, Chapter 16, Section 16-21.030 (Table 2-1) is amended to read as shown in 176 attached Exhibit "A". 177 178 (D) Title IV, Chapter 16, Section 16-50.020 (Table 5-1) is amended to read as shown on 179 attached Exhibit "B". 180 SECTION 3. SEVERABILITY. 181 182 If any section, subsection, clause, sentence, or phrase of this Ordinance is for any reason 183 held to be invalid or unconstitutional by a decision of a Court of competent jurisdiction, such 184 decision shall not affect the validity of the remaining portions of the Ordinance. The Town 185 Council of the Town of Tiburon hereby declares that it would have passed this Ordinance, any 186 section, subsection, sentence, clause or phrase thereof, irrespective of the fact that anyone or 187 more sections, subsections, sentences, clauses, or phrases may be declared invalid or 188 unconstitutional. 189 190 SECTION 4. EFFECTIVE DATE. 191 192 This Ordinance shall take effect and be in force thirty days after the date of passage, and 193 before the expiration of fifteen (15) days after passage by the Town Council, a copy of the 194 ordinance shall be published with the names of the members voting for and against it at least 195 once in a newspaper of general circulation published in the Town of Tiburon. 196 197 This ordinance was introduced at a regular meeting of the Town Council of the Town of 198 Tiburon on , 2015, and was adopted at a regular meeting of the Town Council of the 199 Town of Tiburon on , 2015, by the following vote: 200 201 202 AYES: COUNCILMEMBERS: 203 204 NAYS: COUNCILMEMBERS: 205 206 ABSENT: COUNCILMEMBERS: 207 208 209 210 211 FRANK X. DOYLE, MAYOR 212 Town of Tiburon 213 Town of Tiburon Ordinance No. XXX N. S. TC First Reading Draft 4-22-2015 Page 1 5 214 ATTEST: 215 216 217 218 219 DIANE CRANE-IACOPI, TOWN CLERK 220 221 Attachments: 222 Exhibit "A", Revised Table 2-1 223 Exhibit "B", Revised Table 5-1 Town of Tiburon Ordinance No. XXX N. S. TC First Reading Draft 4-22-2015 Page 1 6 TABLE 2-1 Allowed Land Uses and Permit Requirements for Residential Zones P Permitted Use U Conditional Use Permit MP Ministerial Permit Use not allowed LAND USE (1) PERMIT REQUIRED BY DISTRICT R-1 R -1-B RO R-2 R-3 RPD RMP Specific Use Regulations AGRICULTURAL & OPEN SPACE USES Agriculture, including Aviaries (6) U U U U U U U Title VI, 20-5.1 Botanical conservatories, outdoor nature labs, and similar facilities — — — — — U U Open space use — — — — — P P Wildlife sanctuaries U U — — — U U 16-52.100/16-52.105 RECREATION, EDUCATION & PUBLIC ASSEMBLY USES Equestrian facility (2) U U U — — U U Title VI, 20-5.1 Golf course/country club U U U — — U U Library, museum U U U U U — — Parochial or other nonprofit school - elementary, secondary, or college U U U U U U U 16-52.100/16-52.105 Philanthropic or charitable facility U U U U U U U Private residential recreation facilities U U U U U U U Public park P P P P P P P Playground U U U U U U U 16-40.020 Publicly owned building or facility U U U U U U U Religious places of worship U U U U U U U RESIDENTIAL USES Home occupation/Seasonal rental unit P P P P P P P 16-52.110/16-40.040 intermediate or community care facility (3) P P P P P P P Multifamily dwelling — — — — P — P Secondary dwelling unit /Junior accessory dwelling unit (5) MP MP MP — — MP — 16-52.100/16-52.105 Single-family dwelling P P P P — P P Single-family dwelling providing room/board for 1 paying guest P P P P — P P Two-family dwelling, attached — — — P — — P Two-family dwelling, detached — — — P(4) — — — 16-40.020 Transitional, supportive housing P P P P P P P Key to Zoning District Symbols R-1 Single -Family Residential R-3 Multifamily Residential R -1-B Modified Single Family Residential RPD Residential Planned Development RO Residential Open RMP Residential Multiple Planned R-2 Two -Family Residential Notes: (1) See Article X (Definitions) for land use definitions. (2) The keeping of horses subject to licensing of each horse pursuant to the Tiburon horse license ordinance. Use permits for keeping horses shall automatically terminate upon revocation of license issued under horse license ordinance. (3) As defined by state law or any other residential care facility for the handicapped (as defined by the Fair Housing Act) located in a single-family dwelling. All such facilities shall be subject to all regulations of the California Health and Safety Code. (4) Provided that design review board has approved or conditionally approved a detached two-family dwelling exception, as set forth in Section 16-40.020. Detached two-family dwellings that lawfully existed on June 4, 2003 are deemed legal nonconforming structures subject to provisions of Section 16-62. (5) Also subject to Standards adopted by separate Resolution of the Town Council. (6) Except for chicken -keeping and bee -keeping as set forth in Section 16-40.070. EXHIBIT "A" TABLE 2-1 (Continued) Allowed Land Uses and Permit Requirements for Residential Zones P U MP — Permitted Use Conditional Use Permit Ministerial Permit Use not allowed U — LAND USE (1) — PERMIT REQUIRED BY DISTRICT Residential Planned Development Child day-care facilities, small family day-care homes – up to 8 children (5) Specific Use R-1 R -1-B RO R-2 R-3 RPD RMP Regulations SERVICES - GENERAL Bed and breakfast facility (B&B) U U U — — — — Residential Planned Development Child day-care facilities, small family day-care homes – up to 8 children (5) P P P P P P P Health & Safety Code 1597.3 et seq. Child day-care facilities, large family day-care homes - 9 to 14 children (5) MP MP MP MP MP MP MP Health & Safety Code 1597.46 - 1597.465 Child day-care center -15 or more children U U U U U U U Medical Services - Hospital U U U U U U U Real estate tract office U U U U U U U TRANSPORTATION, COMMUNICATIONS & INFRASTRUCTURE Public utility and communication equipment building U U U U U U U Residential Planned Development Wireless communication facility, amateur or professional (6) U/MP U/MP U/MP U/MP U/MP UIMP U/MP Code 5850 Cade 6 65850.6 Key to Zoning District Symbols R-1 Single -Family Residential R-3 Multifamily Residential R -1-B Modified Single Family Residential RPD Residential Planned Development RO Residential Open RMP Residential Multiple Planned R-2 Two -Family Residential Notes: (1) See Article X (Definitions) for land use definitions. (2) The keeping of horses subject to licensing of each horse pursuant to the Tiburon horse license ordinance, Use permits for keeping horses shall automatically terminate upon revocation of the license issued under horse license ordinance. (3) As defined by state law or any other residential care facility for the handicapped (as defined by the Fair Housing Act) located in a single-family dwelling. All such facilities shall be subject to all regulations of the Califomia Health and Safety Code. (4) Provided that design review board has approved or conditionally approved a detached two-family dwelling exception, as set forth in Section 16-40.020. Detached two-family dwellings that lawfully existed on June 4, 2003 are deemed legal nonconforming structures subject to provisions of Sec. 16-62. (5) When located in a single-family dwelling. (6) See Section 16-42.040 for specifics. Certain modifications, replacements and removals are subject to ministerial review and approval under federal law or are eligible for streamlined discretionary review. Table 5-1 - Review Authority Type of Permit or Decision Role of Review Authority' Director Design Review Board Planning Commission Town Council Site Plan and Architectural Review Decide Appeal Action Site Plan and Architectural Review (Minor Alterations) Decide Appeal Action Variance, Site Plan and Architectural Review -related Decide Appeal Action Variance, Other Decide Appeal Action Conditional Use Permit Decide Appeal Action Condominium Use Permit Decide Appeal Action Precise Development Plan Recommend Decide Secondary Dwelling Unit Permit) Junior Accessory Dwelling Unit Decide Appeal Action Zoning OrdinanceZText Amendment Recommend Decide Rezoning or Prezoning2 Recommend Decide Home Occupation Permit or Seasonal Rental Unit Permit Decide3 Appeal Action3 Temporary Use Permit Decide3 Appeal Action3 Tidelands Permit (minor and incidental) Decide3 3 Appeal Action Tidelands Permit (all other) Decide Appeal Action Wireless Communication Facility (administrative) Decide Appeal Action Minor changes to an approved project Decide4 Notes: 1. "Recommend" means that the review authority makes a recommendation to a higher decision-making body; "Decision" means that the authority makes the final decision on the matter; "Appeal Action" means that the review authority may consider and decide upon appeals to the decision of an earlier decision-making body, in compliance with Section 16-66 (Appeals). 2. If the Planning Commission denies an application for a Precise Development Plan amendment, Zoning Text Amendment, Rezoning or Prezoning, that decision is final unless appealed to the Town Council. 3. The Director may refer any such application to the Planning Commission for review and action, in which case the Town Council will be the appeal body. 4. An appeal of the Director's decision shall be heard by the original project's Review Authority, whose decision shall be final. EXHIBIT "B" 16-42.040 - Permit Requirements for Wireless Communication Facilities Permit application for a WCF with the Town, the Town shall give written notice of such filing to • general circulation within Tiburon, and to thc presidents or their designees for receipt of notices of cch of the affected homeowners associations as determined by the Director. Notice of the filing of the application shall also be posted by the Planning Division on the Town's web site and on the public notice bulletin board outside Town Hall within fifteen days of the date of the filing thereafter. For applications on land owned by a public agency other than the Town of Tiburon, written notice and a copy of the Town of Tiburon's WCF regulations shall be provided to the . (Note: This text has been moved to subsection C as it applies only to WCF applications for which a conditional use permit is required]. Any person who proposes to install or operate a WCF shall first obtain approval of a Conditional Use Permit in compliance with Section 16 52.0'10 (Conditional Use Permit), unless thc facility is exempt from securing such permit under Section 16 12.030 (Applicability). The Review Authority may approve a Conditional Use Permit for a WCF substantial compliance with applicable requirements of the most current Tiburon Wireless Communication Facilities Standards adopted by resolution of the Town Council. ?. Any person who proposes to install or operatc a WCF shall first obtain Site Plan and Architectural Review approval in compliance with Subsection 16 52.020 (Site Plan and Architectural Review), unless thc facility is exempt from securing such permit under Section 16 12.030 (Applicability). 3. Exceptions. The Review Authority may grant an exception to any requirement of Section 16 12 or any mandatory standard contained within the V, ireless Communication Facilities Standards upon malting findings that: (1) strict compliance precludes the reasonable accommodation of the communication needs of the operator as set forth in (3) either State or federal law requires the Town to issue the exception or the exception will serve the public interest despite the conflict with the mandatory standards. C. Co location. An applicant for a WCF m y file a formal ‘vritten request for waiver of the requirements for a Conditional Usc Permit with the Director. It is the responsibility of the applicant to establish evidence in support of the waiver criteria required by this Section. The Director may waive thc requirements for a Condition 1 Usc Pernmit and instead require Site Plan and Architectural Review only for VI'CFs that meet the following criteria: 1. Co location. The new facility or equipnment is co located on r adjoining an existing WCF; 2. Preferred location. The facility that is located on a property developed predominantly with commercial land uses: =_:LIIBIT NO. Stealth Design. The WCF is designed or located in such a way that the facility is not t. Prior approval and compliance. The existing WCF was subject to Conditional Use existing facility has incorporated the required mitigation measures. The new equipment or structures docs not constitute a substantial change in the project or new information as outlined in Public Resources Code Section 21166. A. Wireless Communication Facilities Governed by Section 6409(a) of the Middle_ Class Tax Relief and Jobs Creation Act of 2012 ("Tax Act"). An applicant for a facility governed by Section 6409(a) of the Tax Act must file an administrative WCF permit application for review and ministerial decision by the director. Said decision shall be rendered within sixty (60) days of the filing of the application. unless tolled pursuant to the Tax Act. The decision of the director may be appealed within five (5) calendar days to the Planning Commission. whose decision shall be final. B. Wireless Communication Co -location Facilities Not Governed by Section 6409(a) of the Middle Class Tax Relief and Jobs Creation Act of 2012. An applicant for a co -location facility not governed by Section 6409(a) of the Tax Act may file a formal written request for waiver of the requirements for a conditional use permit with the director. It is the responsibility of the applicant to establish evidence in support of the waiver criteria required by this section. The director may waive the requirements for a conditional use permit and instead require a site plan and architectural review permit only for co -locations that meet the following criteria: 1. Co -location. The proposed facility or equipment is co -located on or adjoining an existing WCF: 2. Preferred location. The proposed facility is located on a property developed predominantly with commercial land uses: 3. Stealth design. The proposed WCF is designed or located in such a way that the facility is not readily recognizable as wireless communications equipment to an average person: 4. Prior approval and compliance. The existing WCF was subject to conditional use permit approval and complies with the town's policies and regulations; and 5. Existing environmental compliance. The existing WCF has a certified environmental impact report or adopted negative declaration or mitigated negative declaration. and the existing facility has incorporated the required mitigation measures. The new equipment or structures do not constitute a substantial change in the project or new information as outlined in Public Resources Code Section 21166. Applications processed pursuant to this subsection (B) shall be acted upon within ninety (90) days of submittal of a complete application. C. All Other Facilities. Wireless Communication facilities that do not fall under subsections A or B must go through the following process. 1. Public notice of application filing. (a) Within fifteen (15) days after the filing of a conditional use permit application for a WCF with the Town of Tiburon. the town shall give written notice of such filing to all property owners within a six - hundred -foot (600') radius of the proposed facility. to a newspaper of general circulation within the Town of Tiburon, and to the presidents or their designees for receipt of notices of each of the affected homeowners associations as determined by the director. (b) Notice of the filing of the application shall also be posted by the Planning Division on the town's web site and on the public notice bulletin board outside town hall within fifteen (15) days of the date of the filing of the application. and such notice shall remain in such location for a period of at least thirty (30) days thereafter. (c) For applications on land owned by a public agency other than the Town of Tiburon. written notice and a copy of the Town of Tiburon's WCF regulations shall be provided to the public agency within fifteen days of filing of the application. 2. Review and approval. (a) Any person who proposes to install or operate a WCF pursuant to this subsection (C) shall first obtain approval of a conditional use permit in compliance with section 16-52.040 (conditional use permit), unless the facility is exempt from securing such permit under section 16- 42.030 (applicability). The review authority may approve a conditional use permit for a WCF only upon making the finding that the project is consistent with this section and is in substantial compliance with applicable requirements of the most current Tiburon Wireless Communication Facilities Standards adopted by resolution of the town council. (b) Any person who proposes to install or operate a WCF shall first obtain site plan and architectural review approval in compliance with section 16-52.020 (site plan and architectural review), unless the facility is exempt from securing such permit under section 16-42.030 (applicability). (c) Applications processed pursuant to this subsection (C) shall be acted upon within one hundred fifty (150) days of submittal of a complete application. Conditional use permit and site plan and architectural review applications may be processed concurrently. 3. Exceptions. The review authority may grant an exception to any requirement of division 16-42 or any mandatory standard contained within the Wireless Communication Facilities Standards upon making findings that: (1) strict compliance precludes the reasonable accommodation of the communication needs of the operator as set forth in federal and/or state rules and regulations; (2) there are no other feasible alternatives: and (3) either state or federal law requires the town to issue the exception or the exception will serve the public interest despite the conflict with the mandatory standards. D. Length of permit --Mandatory review/renewal. 1. A Conditional Use Permit for a WCF approved on or after January 1, 2007 shall be valid for an initial period of ten years after final discretionary approval, unless a shorter duration is approved on the bases of public safety reasons or substantial land use reasons. At least ninety days prior to expiration of the ten-year period approval, the permit holder shall file an application for review/renewal of the WCF Permit. The permit holder shall be solely responsible for timely filing of, and for all costs associated with, the processing of applications for mandatory reviews/renewals. 2. A Conditional Use Permit for a WCF approved prior to January 1, 2007 shall be subject to the specific conditions of the permit with respect to duration and periodic mandatory review/renewal. At least ninety days prior to expiration of the permit, the permit holder shall file an application for review/renewal of the WCF Permit. The Review Authority shall conduct a public hearing for the purposes of verifying continued compliance with the findings and conditions of approval under which the application was originally approved, as well as compliance with other applicable provisions in the Municipal Code. Permit review/renewals are required every five years, unless a longer time period is approved by the Review Authority, or another time period is set forth in the permit conditions. The permit holder shall be solely responsible for timely filing of, and for all costs associated with, the processing of applications for mandatory reviews/renewals. 16-42.080 - Nonconforming Facilities Any WCF in existence prior to December 2, 2005 that is nonconforming to the provisions of this Section determined within the reasonable discretion of the Director, without conforming to provisions of Section Authority by the Director. A. Any WCF in existence prior to December 2. 2005 that is nonconforming to the provisions of this division 16-42 may continue to be used. Such nonconforming facilities may continue to be operated. repaired. and maintained but shall not be enlarged. expanded, relocated. or modified in any material manner, as determined within the reasonable discretion of the director, without conforming to provisions of division 16-42. Notification of nonmaterial modifications shall be provided within thirty (30) days to the review authority by the director. B. Exception. Facilities Governed by Section 6409(a) of the Middle Class Tax Relief and Jobs Creation Act of 2012 are not subject to the provisions of this section unless the proposed modification substantially changes the physical dimensions of the existing tower or base station. as those terms are defined in the Act. RESOLUTION NO. 2015-03 A RESOLUTION OF THE PLANNING COMMISSION OF THE TOWN OF TIBURON RECOMMENDING TO THE TOWN COUNCIL ADOPTION OF TEXT AMENDMENTS TO THE TIBURON ZONING ORDINANCE WITH RESPECT TO WIRELESS COMMUNICATION FACILITY REGULATIONS WHEREAS, the Town of Tiburon has initiated text amendments to the Town's Zoning Ordinance, codified as Title IV, Chapter 16 of the Tiburon Municipal Code; and WHEREAS, a notice of the public hearing on the amendments was published in the Marin Independent Journal newspaper on April 11, 2015 and other noticing was provided as required by law; and WHEREAS, the Planning Commission did hold a duly noticed and advertised public hearing on April 22, 2015 and considered any testimony received during the public hearing; and WHEREAS, the Planning Commission has considered the preliminary environmental determination that the proposed amendments are exempt from further review under the California Environmental Quality Act (CEQA) on the basis that they are ministerial actions required to comply with federal law and that they are categorically exempt based on the exemption for Minor Alterations in Land Use Limitations pursuant to CEQA Guidelines Section 15305; and WHEREAS, the Planning Commission finds that the proposed zoning text amendments are consistent with the goals, policies, and programs of the Tiburon General Plan and any applicable plans and are consistent with the requirements and objectives of the Zoning Ordinance; and WHEREAS, the Planning Commission finds that the proposed amendments will not be detrimental to the public health, safety or welfare of the Town. NOW, THEREFORE, BE IT RESOLVED that the Planning Commission hereby recommends that the Town Council adopt the Zoning Ordinance text amendments as set forth in the attached Exhibit "A-1". PASSED AND ADOPTED at a regular meeting of the Planning Commission of the Town of Tiburon held on April 22, 2015, by the following vote: AYES: COMMISSIONERS: Corcoran, Weller, Weiner, Williams NAYS: COMMISSIONERS: None ABSENT: COMMISSIONERS: Kulik TIBURON PLANNING COMMISSION RESOLUTION NO. 2015-03 04/22/2015 1 D___�___-_ NO. ATTEST: WELN R, CHAIR Tiburon Planning Commission `U SCOTT ANDERSON, SECRETARY Attachment: Exhibit "A-.1" TIBURON PLANNING COMMISSION RESOLUTION NO. 2015-03 04/22/2015 2 EXHIBIT "A-1" 1 ORDINANCE NO. XXX N. S. 2 3 4 AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF TIBURON 5 AMENDING MUNICIPAL CODE TITLE IV, CHAPTER 16 (ZONING) REGARDING 6 WIRELESS COMMUNICATIONS FACILITIES 7 8 9 SECTION 1. FINDINGS. 10 11 A. On , 2015, the Planning Commission adopted Resolution No. 2015 -XX 12 recommending to the Town Council that various text amendments be made to Title IV, 13 Chapter 16 (Zoning) of the Tiburon Municipal Code. 14 B. The Town Council held a duly noticed public hearing on , 2015 and has 15 heard and considered all public testimony on the proposed Ordinance. 16 C. The Town Council finds that all notices and procedures required by law attendant to the 17 adoption of this Ordinance have been followed. 18 D. The Town. Council fords that the amendment actions made by this Ordinance are 19 necessary for the protection of the public health, safety, and welfare and to comply with 20 federal law. 21 E. The Town Council has found that the amendments made by this Ordinance are consistent 22 with the goals and polices of the Tiburon General Plan and other adopted ordinances and 23 regulations of the Town of Tiburon, and further the intent and purposes of General Plan 24 goals and policies. 25 F. The Town Council finds that adoption of this ordinance is exempt from the requirements 26 of the California Environmental Quality Act (CEQA) pursuant to Section 15305 (Minor 27 Alterations to Land Use Limitations) of the CEQA Guidelines, as well as being a 28 ministerial action taken to comply with federal law. 29 30 SECTION 2. ADOPTION OF AMENDMENTS TO MUNICIPAL CODE. 31 32 (A) Title IV, Chapter 16, Section 16-42.040 is amended to read as follows: 33 16-42.040 - Permit requirements for wireless communication facilities. 34 A. Wireless Communication Facilities Governed by Section 6409(a) of the Middle 35 Class Tax Relief and Jobs Creation Act of 2012 ("Tax Act"). An applicant for 36 a facility governed by Section 6409(a) of the Tax Act must file an 37 administrative WCF permit application for review and ministerial decision by 38 the director. Said decision shall be rendered within sixty (60) days of the filing 39 of the application, unless tolled pursuant to the Tax Act. The decision of the Town of Tiburon Ordinance No. XXX N. S. PC -Recommended Draft 4-22-2015 Page 1 1 40 director may be appealed within five (5) calendar days to the Planning 41 Commission, whose decision shall be final. 42 43 B. Wireless Communication Co -location Facilities Not Governed by Section 44 6409(a) of the Middle Class Tax Relief and Jobs Creation Act of 2012. An 45 applicant for a co -location facility not governed by Section 6409(a) of the Tax 46 Act may file a formal written request for waiver of the requirements for a 47 conditional use permit with the director. It is the responsibility of the applicant 48 to establish evidence in support of the waiver criteria required by this section. 49 The director may waive the requirements for a conditional use permit and 50 instead require a site plan and architectural review permit only for co -locations 51 that meet the following criteria: 52 53 1. Co -location. The proposed facility or equipment is co -located on or 54 adjoining an existing WCF; 55 56 2. Preferred location. The proposed facility is located on a property developed 57 predominantly with commercial land uses; 58 59 3. Stealth design. The proposed WCF is designed or located in such a way that 60 the facility is not readily recognizable as wireless communications 61 equipment to an average person; 62 63 4. Prior approval and compliance. The existing WCF was subject to 64 conditional use permit approval and complies with the town's policies and 65 regulations; and 66 67 5. Existing environmental compliance. The existing WCF has a certified 68 envirorunental impact report or adopted negative declaration or mitigated 69 negative declaration, and the existing facility has incorporated the required 70 mitigation measures. The new equipment or structures do not constitute a 71 substantial change in the project or new information as outlined in Public 72 Resources Code Section 21166. 73 74 Applications processed pursuant to this subsection (B) shall be acted upon 75 within ninety (90) days of submittal of a complete application. 76 77 C. All Other Facilities. Wireless Communication facilities that do not fall under 78 subsections A or B must go through the following process. 79 80 1. Public notice of application filing. 81 82 (a) Within fifteen (15) days after the filing of a conditional use permit 83 application for a WCF with the Town of Tiburon, the town shall give 84 written notice of such filing to all property owners within a six - 85 hundred -foot (600') radius of the proposed facility, to a newspaper of Town of Tiburon Ordinance No. XXX N. S. PC -Recommended Draft 4-22-2015 Page 12 86 general circulation within the Town of Tiburon, and to the presidents or 87 their designees for receipt of notices of each of the affected 88 homeowners associations as determined by the director. 89 90 (b) Notice of the filing of the application shall also be posted by the 91 Planning Division on the town's web site and on the public notice 92 bulletin board outside town hall within fifteen (15) days of the date of 93 the filing of the application, and such notice shall remain in such 94 location for a period of at least thirty (30) days thereafter. 95 96 (c) For applications on land owned by a public agency other than the 97 Town of Tiburon, written notice and a copy of the Town of Tiburon's 98 WCF regulations shall be provided to the public agency within fifteen 99 days of filing of the application. 100 101 2. Review and approval. 102 103 (a) Any person who proposes to install or operate a WCF pursuant to 104 this subsection (C) shall first obtain approval of a conditional use permit 105 in compliance with section 16-52.040 (conditional use permit), unless 106 the facility is exempt from securing such permit under section 16- 107 42.030 (applicability). The review authority may approve a conditional 108 use permit for a WCF only upon making the finding that the project is 109 consistent with this section and is in substantial compliance with 110 applicable requirements of the most current Tiburon Wireless 111 Communication Facilities Standards adopted by resolution of the town 112 council. 113 114 (b) Any person who proposes to install or operate a WCF shall first 115 obtain site plan and architectural review approval in compliance with 116 section 16-52.020 (site plan and architectural review), unless the facility 117 is exempt from securing such permit under section 16-42.030 118 (applicability). 119 120 (c) Applications processed pursuant to this subsection (C) shall be acted 121 upon within one hundred fifty (150) days of submittal of a complete 122 application. Conditional use permit and site plan and architectural 123 review applications may be processed concurrently. 124 125 3. Exceptions. The review authority may grant an exception to any 126 requirement of division 16-42 or any mandatory standard contained 127 within the Wireless Communication Facilities Standards upon making 128 findings that: (1) strict compliance precludes the reasonable 129 accommodation of the communication needs of the operator as set forth 130 in federal and/or state rules and regulations; (2) there are no other Town of Tiburon Ordinance No. XXX N. S. PC -Recommended Draft 4-22-2015 Page 1 3 131 feasible alternatives; and (3) either state or federal law requires the town 132 to issue the exception or the exception will serve the public interest 133 despite the conflict with the mandatory standards. 134 135 D. Length of conditional use permit approval—Mandatory review/renewal. 136 137 1. A conditional use permit issued for a WCF approved on or after January 1, 138 2007 shall be valid for an initial period of ten (10) years after final 139 approval, unless a shorter duration is approved on the bases of public safety 140 reasons or substantial land use reasons. At least ninety (90) days prior to 141 expiration of the ten-year period approval, the permit holder shall file an 142 application for review/renewal of the WCF permit. The permit holder shall 143 be solely responsible for timely filing of, and for all costs associated with, 144 the processing of applications for mandatory reviews/renewals. 145 146 2. A conditional use permit issued for a WCF approved prior to January 1, 147 2007 shall be subject to the specific conditions of the permit with respect to 148 duration and periodic mandatory review/renewal. At least ninety (90) days 149 prior to expiration of the permit, the permit holder shall file an application 150 for review/renewal of the WCF Permit. The review authority shall conduct 151 a public hearing for the purposes of verifying continued compliance with 152 the findings and conditions of approval under which the application was 153 originally approved, as well as compliance with other applicable provisions 154 in the Municipal Code. Permit review/renewals are required every five (5) 155 years, unless a longer time period is approved by the review authority, or 156 another time period is set forth in the permit conditions. The permit holder 157 shall be solely responsible for timely filing of, and for all costs associated 158 with, the processing of applications for mandatory reviews/renewals. 159 160 (B) Title IV, Chapter 16, Section 16-42.080 is amended to read as follows: 161 16-42.080 - Nonconforming facilities. 162 A. Any WCF in existence prior to December 2, 2005 that is nonconforming to the 163 provisions of this division 16-42 may continue to be used. Such nonconforming 164 facilities may continue to be operated, repaired, and maintained but shall not be 165 enlarged, expanded, relocated, or modified in any material manner, as determined 166 within the reasonable discretion of the director, without conforming to provisions of 167 division 16-42. Notification of nonmaterial modifications shall be provided within thirty 168 (30) days to the review authority by the director. 169 170 B. Exception. Facilities Governed by Section 6409(a) of the Middle Class Tax Relief and 171 Jobs Creation Act of 2012 are not subject to the provisions of this section unless the 172 proposed modification substantially changes the physical dimensions of the existing 173 tower or base station, as those terms are defined in the Act. Town of Tiburon Ordinance No. XXX N. S. PC -Recommended Draft 4-22-2015 Page 14 174 175 (C) Title IV, Chapter 16, Section 16-21.030 (Table 2-1) is amended to read as shown in 176 attached Exhibit "A". 177 178 (D) Title IV, Chapter 16, Section 16-50.020 (Table 5-1) is amended to read as shown on 179 attached Exhibit "B". 180 SECTION 3. SEVERABILITY. 181 182 If any section, subsection, clause, sentence, or phrase of this Ordinance is for any reason 183 held to be invalid or unconstitutional by a decision of a Court of competent jurisdiction, such 184 decision shall not affect the validity of the remaining portions of the Ordinance. The Town 185 Council of the Town of Tiburon hereby declares that it would have passed this Ordinance, any 186 section, subsection, sentence, clause or phrase thereof, irrespective of the fact that anyone or 187 more sections, subsections, sentences, clauses, or phrases may be declared invalid or 188 unconstitutional. 189 190 SECTION 4. EFFECTIVE DATE. 191 192 This Ordinance shall take effect and be in force thirty days after the date of passage, and 193 before the expiration of fifteen (15) days after passage by the Town Council, a copy of the 194 ordinance shall be published with the names of the members voting for and against it at least 195 once in a newspaper of general circulation published in the Town of Tiburon. 196 197 This ordinance was introduced at a regular meeting of the Town Council of the Town of 198 Tiburon on , 2015, and was adopted at a regular meeting of the Town Council of the 199 Town of Tiburon on , 2015, by the following vote: 200 201 202 AYES: COUNCILMEMBERS: 203 204 NAYS: COUNCILMEMBERS: 205 206 ABSENT: COUNCILMEMBERS: 207 208 209 210 211 FRANK X. DOYLE, MAYOR 212 Town of Tiburon 213 Town of Tiburon Ordinance No. XXX N. S. PC -Recommended Draft 4-22-2015 Page 1 5 214 ATTEST: 215 216 217 218 219 DIANE CRANE-IACOPI, TOWN CLERK 220 221 Attachments: 222 Exhibit "A", Revised Table 2-1 223 Exhibit "B", Revised Table 5-1 Town of Tiburon Ordinance No. XXX N. S. PC -Recommended Draft 4-22-2015 Page 16 TABLE 2-1 Allowed Land Uses and Permit Requirements for Residential. Zones P Permitted Use U Conditional Use Permit MP Ministerial Permit Use not allowed LAND USE (1) PERMIT REQUIRED BY DISTRICT R-1 R -1-B RO R-2 R-3 RPD RMP Specific Use Regulations v Agriculture, including Aviaries (6) U U U U U U U Title VI, 20-5.1 Botanical conservatories, outdoor nature labs, and similar facilities — — — — — U U Open space use — — — — — P P Wildlife sanctuaries — — — — — U U 16-52.100116-52.1C Equestrian �facility (2) U U U — — U U Title VI, 20-5.1 Golf course/country club U U U — — U U Library, museum U U U U U — — Parochial or other nonprofit school - elementary, secondary, or college U U U U U U U 16-52.100116-52.1C Philanthropic or charitable facility U U U U U U U Private residential recreation facilities U U U U U U U Public park P P P P P P P Playground U U U U U U U 16-40.020 Publicly owned building or facility U U U U U U U Religious places of worship U U U U U U U Home occupation/Seasonal rental unit P P P P P P P 16-52.110116-40.041 Intermediate or community care facility (3) P P P P P P P Multifamily dwelling — — — — P — P Secondary dwelling unit /Junior accessory dwelling unit (5) MP MP MP — — MP — 16-52.100116-52.1C Single-family dwelling P P P P — P P Single-family dwelling providing room/board for 1 paying guest P P P P — P P Two-family dwelling, attached — — — P — — P Two-family dwelling, detached — — — P(4) — — — 16-40.020 Transitional, supportive housing P P P P P P P Key to Zoning District Symbols R-1 Single -Family Residential R-3 Multifamily Residential R -1-B Modified Single Family Residential RPD Residential Planned Development RO Residenfial Open RMP Residential Multiple Planned R-2 Two -Family Residential Notes: (1) See Article X (Definitions) for land use definitions. (2) The keeping of horses subject to licensing of each horse pursuant to the Tiburon horse license ordinance. Use permits for keeping horses shall automatically terminate upon revocation of license issued under horse license ordinance. (3) As defined by state law or any other residential care facility for the handicapped (as defined by the Fair Housing Act) located in a single-family dwelling. All such facilities shall be subject to all regulations of the California Health and Safety Code, (4) Provided that design review board has approved or conditionally approved a detached two-family dwelling exception, as set forth in Section 16-40.020. Detached Iwo -family dwellings that lawfully existed on June 4, 2003 are deemed legal nonconforming structures subject to provisions of Section 16-62. (5) Also subject to Standards adopted by separate Resolution of the Town Council. (6) Except for chicken -keeping and bee -keeping as set forth in Section 16-40.070. EXHIBIT "A" TABLE 2-1 (Continued) Allowed Land Uses and Permit Requirements for Residential Zones 01_nT IV1-u - P U MP — Permitted Use Conditional Use Permit Ministerial Permit Use not allowed U — LAND USE (1) — PERMIT REQUIRED BY DISTRICT m Planned Deve optia Development Child day-care facilities, small family day-care homes – up to S children (5) Specific Use R-1 R -1-B RO R-2 R-3 RPD RMP Regulations Bed and and breakfast facility (B&B) U U U — — — — m Planned Deve optia Development Child day-care facilities, small family day-care homes – up to S children (5) P P P P P P P Health & Safely Code 1597.3 et seq. Child day-care facilities, large family day-care homes - 9 to 14MP children (5) MP MP MP MP MP MP Health & Safety Code 1597.46 - 1597.465 Child day-care center -15 or more children U U U U U U U Medical Services - Hospital U U U U U U U Real estate tract office U U U U U U U Public utility and communication equipment building U U U U U U U m Planned Deve optia Development Wireless communication facility,amateur orprofessional(6)U/MP Residential Open UIMP U/MP U/MP U/MP U/MP U/MP ment Code 65650 Code fi5650.6 ..J-- R-1 .– Single -Family Residential R-3 Multifamily Residential R -1-B Modified Single Family Residential RPD m Planned Deve optia Development RO Residential Open RMP Residential Multiple Planned R-2 Two -Family Residential Notes: (1) See Article X (Definitions) for land use definitions. (2) The keeping of horses subject to licensing of each horse pursuant to the Tiburon horse license ordinance. Use permits for keeping horses shall automatically terminate upon revocation of the license issued under horse license ordinance. (3) As defined by state law or any other residential care facility for the handicapped (as defined by the Fair Housing Act) located in a single-family dwelling. All such facilities shall be subject to all regulations of the Califomia Health and Safety Code. (4) Provided that design review board has approved or conditionally approved a detached two-family dwelling exception, as set forth in Section 16-40.020. Detached two-family dwellings that lawfully existed on June 4, 2003 are deemed legal nonconforming structures subject to provisions of Sec.16-62. (5) When located in a single-family dwelling. (6) See Section 16-42.040 for specifics. Certain modifications, replacements and removals are subject to ministerial review and approval under federal law or are eligible for streamlined discretionary review. Table 5-1 - Review Authority EXHIBIT "B" Role of Review Authority' Type of Permit or. Decision Director Design Review Board Planning Commission Town Council Site Plan and Architectural Review Decide Appeal Action Site Plan and Architectural Review (Minor Alterations) Decide Appeal Action Variance, Site Plan and Architectural Review -related Decide Appeal Action Variance, Other Decide Appeal Action Conditional Use Permit Decide Appeal Action Condominium Use Permit Decide Appeal Action Precise Development Plan Recommend Decide Secondary Dwelling Unit Permit/ Junior Accessory Dwelling Unit Decide Appeal Action Zoning Ordinance Text Amendment2 Recommend Decide Rezoning or Prezoning2 Recommend Decide Home Occupation Permit or Seasonal Rental Unit Permit Decide3 Appeal Action3 Temporary Use Permit Decide3 Appeal Action' Tidelands Permit (minor and incidental) a Decide Appeal Action 3 Tidelands Permit (all other) Decide Appeal Action Wireless Communication Facility (administrative) Decide Appeal Action Minor changes to an approved project Decide4 Notes: 1. "Recommend" means that the review authority makes a recommendation to a higher decision-making body; "Decision" means that the authority makes the final decision on the matter; "Appeal Action" means that the review authority may consider and decide upon appeals to the decision of an earlier decision-making body, in compliance with Section 16-66 (Appeals). 2. If the Planning Commission denies an application for a Precise Development Plan amendment, Zoning Text Amendment, Rezoning or Prezoning, that decision is final unless appealed to the Town Council. 3. The Director may refer any such application to the Planning Commission for review and action, in which case the Town Council will be the appeal body. 4. An appeal of the Director's decision shall be heard by the original project's Review Authority, whose decision shall be final. EXHIBIT "B" PLANNING COMMISSION MINUTES MINUTES NO. 1054 Regular Meeting April 22, 2015 Town of Tiburon Council Chambers 1505 Tiburon Boulevard, Tiburon, California CALL TO ORDER AND ROLL CALL: Chair Welner called the meeting to order at 7:31 p.m. Present: Chair Weiner and Commissioners Corcoran, Weller and Williams Absent: Vice Chair Kulik Staff Present: Director of Community Development Anderson ORAL COMMUNICATIONS: None COMMISSION AND STAFF BRIEFING: Director Anderson stated there are a couple of items scheduled for the May 13th meeting; the New Morning Cafe building and a single lot Precise Plan Amendment in the Mira Flores subdivision. He reported on two Town employee retirements; the Town's Building Technician will be retiring with 25 years at the end of June, and Town Manager Peggy Curran will retire after 9 years of service at the end of the year. PUBLIC HEARINGS 1. 1694-1696.Tiburon Boulevard: Consider Approval of a Conditional Use Permit and Adoption of a Mitigated Negative Declaration for Construction of a New 8,304 Square Foot, Three -Story Mixed Use Commercial and Residential Building Intended for Condominium -type Ownership; File #11402; ACV Argo Tiburon LP, Owner; Zwick Architects Applicant; Assessor's Parcel No. 059-101-12 [DW] (ITEM TO BE CONTINUED WITHOUT DISCUSSION TO MAY 13, 2015) ACTION: It was M/S (Corcoran/Weller) to continue the matter to May 13, 2015. Motion carried 4-0. _..-y 2. Zoning Ordinance Text Amendments (File MCA 2015-05): Consider Recommendation to Town Council to Adopt Amendments to Chapter 16 (Zoning) of the Tiburon Municipal Code Regarding Processing of Wireless Communication Facilities; Town - initiated Amendments [SA] TIBURON PLANNING COMMISSION MINUTES - APRIL 22, 2015 - MINUTES NO. 1053 PAGE 1 NO. Director Anderson gave the staff report, stating this is a Town -initiated text amendment. The proposed ordinance sets forth amendments which are responsive to recent federal legislation and FCC regulations regarding wireless communication projects and deadlines for acting on applications. There are certain eligible wireless facilities, including specific modifications to wireless bay stations and towers, removal and replacement of transmission equipment which are now regulated by a section of the Middle Class Tax Relief and Jobs Creation Act of 2012. Projects governed by that act are now subject to ministerial review at the local agency level and must be acted upon by the local agency within 60 days of application submittal. The Town Council received a presentation on the subject by an attorney representing the Marin Telecommunications Agency in March and requested the Town immediately adjust its zoning to match the new federal law. The Council was alerted at that time there were five eligible facilities in Tiburon the Act would apply to. He provided a list of the current, active wireless communication facilities in the Town, which does not include the MERA antenna at the top of Mt. Tiburon not under the Town's jurisdiction. There are seven applications listed, but five sites and two of these are the Town Hall and the Fire Station to which Section 6409(a) of the Act does not apply. Therefore, there are five sites the Town must address. As the Commission is aware, in the 1990's the Town adopted a robust program for processing wireless communications facility applications, which include use permit, design review and application of the Town's wireless facility standards; however, the new federal regulations continue to chip away at local review and discretion. The proposed amendments would modify the Town's existing provisions to establish three tiers of review where currently there are two. The first tier would be ministerial review for the proposals that are governed by Section 6409(a) of the act. This section is entirely new. The second tier of applications is streamlined discretionary review for co -location proposals that are not governed by Section 6409(a). This section already exists because earlier federal changes had required the Town to put in some streamlining for certain co -location facilities. The third tier is the Town's normal approach with the CUP, design review and compliance with standards, which is not changing. The processing timelines for these tiers are different. It is 60 days for the first, 90 days for the second and 150 days for the third and there are limited instances where extensions of those deadlines can be made, either by mutual agreement or tolling through an incompleteness letter which is also more limited than the typical incompleteness process. Mr. Anderson said he provided the Commission with a revised page 1 of the ordinance which incorporates changes shown in red at the bottom of the page which are clarifications of the earlier provisions. Because the timeframe is so tight on the 60 day turnaround, staff has reduced the normal day appeal period to 5 days in an attempt to enable the items to be enacted on. Otherwise, they are deemed approved. In addition, staff has provided copies of the two tables in the General Plan which are being amended. With respect to environmental review, staff has determined at the staff level that these are ministerially exempt because they are actions to comply with federal law, as well as TIBURON PLANNING COMMISSION MINUTES - APRIL 22, 2015 - MINUTES NO. 1053 PAGE 2 categorically exempt from further review based on minor alterations and land use limitations under CEQA guidelines per Section 15305. The Commission's role is to consider the preliminary CEQA determination in making its recommendation to the Town Council. Staff recommends the Commission hold a public hearing, take testimony, consider the text amendments contained in the draft ordinance and move to adopt the resolution recommending approval of the text amendments to the Town Council. Commissioner Williams asked staff to provide red -lined versions of the changes as an exhibit so the Commission can see better what is current and what is proposed to be modified. Commissioner Williams also confirmed with Mr. Anderson that changes are necessary to be consistent with changes in federal law and they also were reviewed by the Town Attorney. Commissioner Williams asked and confirmed the changes are all in relationship to Section 6409(a) of the Middle Class Tax Relief and Jobs Creation Act of 2012 and where there is not a substantial change in the physical dimension which is one of the definitions used. Mr. Anderson added that it was the FCC promulgating its regulations that defined terms so that agencies could determine what they are supposed to be doing. Commissioner Williams asked if the Town had much discretion, given federal law, and Mr. Anderson said this is one of the determinations the telecommunications attorney made, and the whole point of the Act was to remove local discretion. He said the Town's exposure is limited but it is not out of the question that someone could come in and request raising the height of an antenna 20 feet. If it is an existing facility, they could do so. Commissioner Weller stated the way he reads the language of the statute, it deals with two separate things—powers and the facilities that have been approved subject to stealth requirements. It then has the question of substantial change which then defines an insubstantial change as being less than a 20 foot increase or 10%, whichever is greater. It then goes onto imply that, however, a substantial change to anything where a stealth requirement had been in effect would be something that caused the stealth requirement to be violated. One implication of this is that one could not just come in with the insubstantial change requirement if asking for a 20 foot increase like 1 Blackfield Drive, noting that 1 Blackfield Drive is enclosed in a stealth chimney. He asked, therefore, if the statute allows someone to come in and raise the chimney by 20 feet and claim that that is insubstantial, when he would think that in terms of the stealth aspect of the chimney, it would be quite substantial. He asked what is the distinction and how does it applies specifically to 1 Blackfield Drive, which is a good example of an attempt to limit the visual impact of these facilities. Mr. Anderson said what the regulations put forth by the FCC say is that it cannot act to defeat the stealth requirements of the original proposal. He said it is a bit of a grey area because if they say all they are doing is extending the existing stealth, it is still in the chimney. They could make an argument that it is not defeating it because the antennas still cannot be seen. On the other hand, doubling the height of the chimney could be argued that it is defeating the stealth aspect of it as well as possibly blocking views it did not block before, thereby defeating the stealth aspect of it. He said staff would immediately turn to its attorneys for assistance if an application is received. TIBURON PLANNING COMMISSION MINUTES - APRIL 22, 20I5 - MINUTES NO. 1053 PAGE 3 Commissioner Weller asked if it is not clear that the definition of insubstantial applies, because to the extent, it is a clear tower with arrays at the top of it. They state that the tower can be taken up 20 feet which seems quite different than taking a chimney up 20 feet, especially one that is 10 or fewer feet to start with. Therefore, the percentage of change, by definition, is going to be far less than 1 Blackfield Drive because it is a good example and one of the possible subjects for this statute. Mr. Anderson said while possibly not successful, he would not be surprised if a wireless company made the argument that raising the chimney would still comply with the Act. Commissioner Williams asked if this would then be decided in a court of law, given there is debate regarding the interpretation of the Act. Mr. Anderson said the Town would need to make the decision one way or the other. If it denied the application, the wireless company's recourse would be to take it to court. Commissioner Williams asked which facilities were considered "stealth". Mr. Anderson said some of the examples are over 20 years old. The original one approved on the new fire station cannot be seen, but he believes it is not a stealth installation but a small transmitter on part of the building. The two Cove sites are both located in the false chimney on the Peet's Coffee part of the building. 700 Tiburon Boulevard is the Belvedere Tennis Club and their facilities are on light standards and in a shed and they are not particularly visible from the public street. The one at Town Hall is located in its clock tower and is not visible. The T -Mobile facility and the AT&T facility are not particularly screened and are rooftop. There is a parapet so there is some screening and when looking carefully, they can be seen and are not very tall. Commissioner Weller said his conclusion is that whatever the term "substantial" means as it relates to existing facilities that are not tall towers is unclear and, therefore, the Town will have to decide whether or not to approve an extension and/or fight the interpretation, and he did not believe this was the Planning Commission's task. Mr. Anderson agreed and said the width and height arguments are the two which the Town can look at objectively. He believes those would be weak arguments on the Town's part, but the stealth argument perhaps offers a better opportunity for the Town to oppose something than simply height or width because those are black and white numbers. Commissioner Williams referred to Section 2.B.2; "Preferred location" and asked that it be amended to read: "The facility that -is located on a property developed predominantly with commercial land uses;" Commissioner Williams referred to Section 3, second sentence, and asked to separate "anyone": "The Town Council of the Town of Tiburon hereby declares that it would have passed this Ordinance, any section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, or phrases may be declared invalid or unconstitutional." Chair Weiner opened the public comment period and there were no speakers. TIBURON PLANNING COMMISSION MINUTES - APRIL 22, 2015 - MINUTES NO. 1053 PAGE 4 Commissioner Weller referred to Section 2.B.3 and asked for clarification on what it is saying. He asked and confirmed that this would be an example of a new application coming into a site where there is already a wireless installation there. He asked what "the facility" pertains to, and Mr. Anderson said if it is a co -location, it could refer to either or both. Generally, it would be a building or structure where there is already a wireless communication facility located, for example, putting the second installation in the false chimney at Peet's. Commissioner Weller asked if it refers to the existing facility that the co -location is trying to attach to, and suggested more precision in the wording. Mr. Anderson suggested amending it to read "the proposed facility". Commissioner Weller asked if the word in Section 2.B.1 "existing" should go before WCF" commenting that the various words should be studied to ensure the adjectives are correctly used, Mr. Anderson suggested using the words "new" or "proposed" to correctly identify the type of installation and said these can be updated. ACTION: It was M/S (Weller/Kulik) to adopt the attached Resolution recommending approval of the text amendments, as modified, to the Town Council. Motion carried 4-0. MINUTES 1. Planning Commission Minutes — Regular Meeting of March 25, 2015 ACTION: It was M/S (Corcoran/Weller) to approve the minutes of the March 25, 2015, as submitted. Motion carried: 3-0-1 (Williams abstaining). ADJOURNMENT The Planning Commission adjourned the meeting at 7:59 p.m. /s/ Jon Welner JON WELNER, CHAIR Tiburon Planning Commission ATTEST: a2A DANIEL M. WATROUS, SECRETARY TIBURON PLANNING COMMISSION MINUTES - APRIL 22, 2015 - MINUTES NO. 1053 PAGE 5 RICHARD RICHARDS (1916-1988) GLENN R. WATSON (1917-2010) HARRY L GERSHON (1922-2007) STEVEN L DORSEY WILLIAM L STRAUSZ MITCHELL E. ABBOTT GREGORY W. STEPAN ICICH QUINN M. BARROW CAROLW. LYNCH GREGORY M. KUNERT THOMAS M. JIMBO ROBERT C. CECCON STEVEN H. KAUFMANN KEVIN G. ENNIS ROBIN D. HARRIS MICHAEL ESTRADA LAURENCE 5. WIENER 8. TILDEN KIM SASKIA T. ASAMURA KAYSER 0. SUME PETER M. THORSON JAMES L MARKMAN CRAIG A. STEELE T. PETER PIERCE TERENCE R. BOGA LISA BOND JANET E. COLESON ROXANNE M. DIAZ JIM G. GRAYSON ROY A. CLARKE MICHAEL F. YOSHIBA REGINA N. DANNER PAULA GUTIERREZ BAEZA BRUCE W. GALLOWAY DIANA K. CHUANG PATRICK K. BOB50 NORMAN A. DUPONT DAVID M. SNOW LOLLY A. ENRIQUEZ XIRSTEN R. BOWMAN GINETTA L GIOVINCO TRISHA ORTIZ CANDICE K. LEE JENNIFER PETRUSIS STEVEN L FLOWER TOUSSAINT S. BAILEY AMY GREYSON DEBORAH R. HAKMAN 0. CRAIG FOX MARICELA E. MARROQUSN KATHERINE L WISINSKI SERITA R. YOUNG SHIRI KLIMA SEAN B. GIBBONS AARON C. O'DELL AMANDA L CHARNE STEPHANIE CAO PATRICK D. SKAHAN STEPHEN 0. LEE YOUSTINA N. AZIZ KYLE H. BROCHARD NICHOLAS R. GHIRELLI CHRISTINA L BROWNING ISAAC M. ROSEN OF COUNSEL ROCHELLE BROWNE SAYRE WEAVER TERESA H0-URANO GENA M. STINNETT L05 ANGELES OFFICE TELEPHONE 213.626.8484 ORANGE COUNTY OFFICE TELEPHONE 714.990.0901 TEMECULA OFFICE TELEPHONE 951.695.2373 lita RICHARDS WATSON GERSHON FScre ATTORNEYS AT LAW — A PROFESSIONAL CORPORATION 44 Montgomery Street, Suite 3800, San Francisco, California 94104-4811 Telephone 415.421.8484 Facsimile 415.421.8486 April 16, 2015 Scott Anderson Community Development Director Town of Tiburon 1505 Tiburon Blvd. Tiburon, CA 94920 RE©mtiwn APR 2 0 2015 PLANNING DIVISION Re: Significant New Wireless Telecommunications Facility Rules From the FCC Dear Mr. Anderson: As you may know, the FCC has recently issued new rules and clarifications on local governmental consideration of requests for approval of wireless telecommunications facilities. These rules and clarifications will have a significant impact on how cities handle wireless applications. Particular provisions even impose "deemed granted" status on certain applications for which cities do not meet the new deadlines; a result that few local decision makers will embrace. The new rules for modification of wireless telecommunications facilities (discussed under Section 6409(a) below) generally go into effect 90 days after their January 8, 2015, publication in the Federal Register (i.e., April 8, 2015). The clarifications go into effect 30 days after publication in the Federal Register (February 9, 2015). These rules and clarifications will very likely require amendments to your existing wireless telecommunication application materials, procedures, and perhaps even zoning regulations. The purpose of this letter is to inform you of the new rules and clarifications, highlight some of the changes you may need to make as a result, and recommend next steps. Background While land use authority generally is vested in local decision makers, that authority yields to state and federal law in various areas. One of these is the siting of wireless telecommunications facilities. Federal regulation of this field has evolved at a rapid speed as the nation's demand for wireless services has ballooned. This background section reviews the underlying laws and regulations affected by the Report and Order issued in October in order to put its changes in context. E HHIBI 3 NO. RICHARDS I WATSON I GERSHON ATTORNEYS AT LAW -A PROFESSIONAL CORPORATION Scott Anderson April 16, 2015 Page 2 The Telecommunications Act of 1996. The passage of the Telecommunications Act of 1996 (the "Telecommunications Act") introduced the first major limitations on local processing and approval of wireless telecommunications facilities. It acknowledged the continued authority of local governments over decisions affecting the "placement, construction, and modification of personal wireless services facilities," but imposed five substantive and procedural limitations on that authority. Under the Act: 1. Municipal regulations on the placement, construction, and modification of personal wireless service facilities were prohibited from "unreasonably discriminat[ing] among providers of functionally equivalent services." 2. Local siting regulations were precluded from "prohibit[ing] or hav[ing] the effect of prohibiting the provision of personal wireless services." 3. Local governments were precluded from regulating the siting of "personal wireless service facilities "on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the [FCC's] regulations concerning such emissions." 4. State and local governments were required to act on requests for personal wireless service facilities sitings "within a reasonable period of time." 5. Any State or local government decision "to deny a request to place, construct, or modify personal wireless service facilities" was now required to be "in writing and supported by substantial evidence contained in a written record." These requirements have been subject to various interpretations, with many municipalities using their diminished land use powers to require variances or impose moratoria to try to stem the tide of telecommunications facility siting requests, and industry participants attempting to use the rules to their greatest advantage. As a result, a patchwork of regulations blanketed the nation, with substantially different interpretations of the Act taking effect. The federal policy of promoting broadband access was set on a collision course with local land use decision making. A revolution in service delivery and use. President Clinton signed the Telecommunications Act into law when large cell towers, whose unsightliness made them disfavored in many communities, were still the primary means of deploying wireless services. In following years, technological innovations made the deployment of these services possible through much smaller mechanisms, including DAS and small cell technology. These new devices offered greatly reduced footprints, though at a cost: more were necessary to accomplish the same service coverage as a single tower. RICHARDS WATSON I GERSHON ATTORNEYS AT LAW -A PROFESSIONAL CORPORATION Scott Anderson April 16, 2015 Page 3 These technological changes were driven, at least in part, by the vast increase in the American public's use of wireless devices and consumption of broadband. In response to this consumer demand, wireless industry providers began clamoring for clarifying measures to the Act that would apply nationwide and speed up the deployment of wireless facilities. The Federal Communications Commission (the "FCC"), the federal agency vested with the power to promulgate implementing regulations in this area, responded to these calls in a 2009 declaratory ruling known as the 'Shot Clock Ruling' for the timeframes it imposed on the review of wireless facility applications by local government. The Shot Clock .Ruling. The 2009 declaratory ruling was premised on the FCC's finding that "the record shows that unreasonable delays are occurring in a significant number of cases" involving local governmental consideration of wireless telecommunications facilities. To address this state of affairs, the FCC issued sweeping new interpretations of the Telecommunications Act's requirements as to local government processing and approval of applications for these facilities. The two most significant regulations to come out of the Shot Clock Ruling were: 1. `Reasonable time period' defined. The FCC determined that the Act's requirement that State and local governments act on requests for personal wireless service facilities sitings "within a reasonable period of time" meant that the local government now had 90 days to process requests for collocations and 150 days to process other siting requests. These deadlines could be tolled by mutual consent. Failure to meet them would allow an applicant to bring a judicial challenge, with the local govenunent bearing the burden of explaining why the delay was reasonable. 2. Prohibiting the provision of personal wireless services. The FCC also determined that a local government's denial of a personal wireless service facility application on the basis of availability of service from another provider constituted a prohibition on the provision of personal wireless services forbidden by the Act. If the Shot Clock Ruling was meant to provide clarity to the Act, it failed. A whole host of new ambiguities were introduced. When did the Shot Clock start to run? How did a local moratorium affect it? What type of follow up information could a city request of an applicant whose application was deemed incomplete? Requests for reconsideration RICHARDS I WATSON 1 GERSHON ATTORNEYS AT LAW -A PROFESSIONAL CORPORATION Scott Anderson April 16, 2015 Page 4 of the Shot Clock Ruling were denied, and judicial challenges that went as far as the United States Supreme Court were unsuccessful. Then things got worse. The Middle Class Tax Relief and Jobs Creation Act. The Shot Clock Ruling was issued in November of 2009, the waning days of the Great Recession. In an attempt to address some of the stubborn economic challenges that lingered thereafter, Congress passed the Middle Class Tax Relief and Jobs Creation Act of 2012 (the "Tax Act"). Buried in the midst of the Tax Act's 102 pages of re-employment strategies and health care offsets was an incongruous provision at section 6409(a) that provided, in pertinent part: Notwithstanding [the Telecommunications Act] or any other provision of law, a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station. This was followed by a definition, of sorts, for `eligible facilities request,' which apparently meant "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." Officially entitled the Spectrum Act but more commonly referred to as Section 6409(a), these new provisions further muddied the increasingly murky waters of telecommunications siting law. What was "an existing wireless tower"? What constituted a "substantial change" in physical dimensions? Was the change determined in comparison to the originally approved structure or the structure as modified, if it had been modified since its original approval? Did "shall approve" mean no conditions could be imposed? In January of 2013, the FCC issued a paper entitled "Guidance on Interpretation of Section 6409(a) of the [Tax Act]" which attempted to answer some of these questions. The publication, however, had no legal effect. By the fall of that year, the FCC decided to exercise its rulemaking authority to clarify both Section 6409(a) and the Shot Clock ruling. The Report and Order issued in October is the result of that exercise. Unlike the Guidance paper, it, unfortunately, carries the force of law. RICHARDS I WATSON I GERSHON ATTORNEYS AT LAW -A PROFESSIONAL CORPORATION Scott Anderson April 16, 2015 Page 5 New rules in the FCC Report and Order. The FCC's Notice of Proposed Rule Making issued in October of 2013 addressed four distinct but related issues regarding broadband deployment, including the implementation of Section 6409(a), and clarification of the Shot Clock Ruling and Section 332(c)(7) requirements. (The other two topics pertained to subjects unrelated to local government action and thus are not addressed here.) Of the two relevant topics, the regulatory changes with the biggest impact are found in the Section 6409(a) implementation provisions, and so we begin there. Section 6409(a). Between its adoption date and the issuance of the Report and Order, this brief and unclear provision regarding the modification of existing wireless towers and base stations through collocations, or the removal or replacement of transmission equipment, had caused major headaches for all concerned. Now that the FCC has `clarified' the provision, however, local governments might find themselves nostalgic for the uncertainty of days past. As alluded to on the first page, the new rules below generally take effect on April 8, 2015. Technically, certain clauses contained within the new rules will not be effective until the federal Office of Management & Budget approves them. However, piecemeal implementation of these new rules by local agencies would be extremely difficult, and we thus recommend treating all of the new Section 6409(a) rules as effective as of April 8. Scope of "transmission equipment" defined. In answer to inquiries as to what structures Section 6409(a) applies to, the FCC determined that it covers support structures and transmission equipment used in connection with any FCC -licensed or authorized wireless transmission, including private, broadcast, or public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul. As used in the statute, "transmission equipment" includes antennas and other equipment associated with and necessary to their operation, including power supply cables and backup power equipment, a frequent source of local contention due to the noise associated with diesel generators. This is far broader than the scope of 332(c)(7), which applies only to personal wireless services. `Tower' and 'base station' defined. For purposes of Section 6409(a), the term "tower" includes any structure built for the sole or primary purpose of supporting any FCC -licensed or authorized antennas and their associated facilities. For example, Section 6409(a) could apply to a request to add wireless telecommunications equipment to a tower built for broadcast television or radio purposes, or vice versa. RICHARDS I WATSON 1 GERSHON ATTORNEYS AT LAW -A PROFESSIONAL CORPORATION Scott Anderson April 16, 2015 Page 6 "Base station" includes equipment and other non -tower supporting structures at a fixed location that support or house an antenna, transceiver, or other associated equipment that constitutes part of a "base station" at the time the relevant application is filed with State or municipal authorities, even if the structure was not built for the sole or primary purpose of providing such support. It does not, however, include structures that do not at that time support or house base station components. `Existing' defined. In order to qualify as an "existing" facility under Section 6409(a), the wireless tower or base station in question must have been "reviewed and approved under the applicable local zoning or siting process or that the deployment of existing transmission equipment on the structure received another form of affirmative State or local regulatory approval. This provision is meant to preclude Section 6409(a) from applying to facilities that were allowed to be erected by right, but it will likely be a source of contention, as the FCC cites State public utility commission approval as an example of the type of approval that would qualify a facility for "existing" status. However, the term "existing" also covers a tower (but not a base station) that has not been reviewed and approved because it was not in a zoned area when it was built, but was lawfully constructed. `Substantially changes' defined. Under the new rules, a proposed modification "substantially changes" the physical dimensions of a tower or base station, if any of the following apply: • for towers outside of public rights-of-way ("ROW"), the modification increases the height by one additional antenna array with separation from the nearest antenna not to exceed 20 feet, or 10%, whichever is greater; for those towers in the ROW and for all base stations, it increases the height of the tower or base station by more than 10% or 10 feet, whichever is greater; for those deployments that will be separated horizontally, such as on a building rooftop, the change in height is measured from the original support structure; for all other towers or base stations, a change in height is measured from the dimensions of the tower or base station inclusive of any modifications approved prior to the passage of Section 6409(a); • for towers outside of public ROW, it protrudes from the edge of the tower more than twenty feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater; for those towers in the ROW and for all base stations, it protrudes from the edge of the structure more than six feet; RICHARDS 1 WATSON I GERSHON ATTORNEYS AT LAW -A PROFESSIONAL CORPORATION Scott Anderson April 16, 2015 Page 7 • it involves installation of more than the "standard number" (which is undefined) of new equipment cabinets for the technology involved, but not to exceed four cabinets; for those towers in the ROW and for all base stations, it involves installation of any new equipment cabinets on the ground if there are no pre-existing cabinets involved with the structure, or else involves installation of ground cabinets that are more than 10% larger in height or overall volume than pre-existing associated cabinets; • it entails any excavation or deployment outside the current site of the tower or base station; • for `concealed' or `stealth -designed facilities,' it would defeat the existing concealment elements of the tower or base station (leaving open the question of how to treat facilities that did not originally include such design features); or • it does not comply with conditions associated with the prior approval of the tower or base station 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 corresponding "substantial change" thresholds (e.g., fencing, drainage, etc.). The fact that agencies must begin their calculations with the dimensions of structures as modified prior to the passage of 6409(a) for purposes of qualifying height modifications requires planners to know the dimensions of the relevant structure as of February 22, 2012, when Section 6409(a) was enacted. Section 6409(a) applies to legal, nonconforming structures. The new rules clarify that legal, nonconforming structures may be modified pursuant to Section 6409(a) provided that the modification does not substantially change the physical dimensions of the structure. Building code and `objective standards reasonably related to health and safety' still apply. The FCC determined that States and localities may continue to enforce and condition approval on compliance with generally applicable building, structural, electrical, and safety codes and with other laws codifying objective standards reasonably related to health and safety. What constitutes "other laws codifying objective standards reasonably related to health and safety" likely will be subject to future dispute. New requirements for processing Section 6409(a) applications. Review of an application under Section 6409(a) is subject to the following rules: RICHARDS 1 WATSON 1 GERSHON ATTORNEYS AT LAW -A PROFESSIONAL CORPORATION Scott Anderson April 16, 2015 Page 8 • Limited information may be requested. A local government may only require applicants to provide documentation that is reasonably related to determining whether the eligible facilities request meets the requirements of Section 6409(a). Among other things, this limiting provision means that cities may not require any documentation that would prove the need for the requested modification or the business case for it, such as a "significant gap" analysis or coverage maps. • New 60 day review period introduced. The State or local government shall approve an application covered by Section 6409(a) within 60 days from the date of filing, accounting for tolling. Nothing in the statute actually identified a timeframe in which local governments had to take action on such applications. Despite this, the FCC has chosen to adopt a deadline that is shorter than the collocation deadlines set out in the Shot Clock Ruling on the rationale that the more limited scope of Section 6409(a) review merits the shorter approval period. (Note that the FCC's general process rules provide that the first day to be counted for such computations is the day after the day on which the act — such as submission of an application — occurs. See 47 CFR 1.4(c) and (d).) • Timeline may be tolled by agreement or incompleteness, but not by a moratorium. The running of the period may be tolled by mutual agreement or upon notice that an application is incomplete provided in accordance with the same deadlines and requirements applicable under the Shot Clock Rules, which are discussed below, but not by a moratorium. "Deemed granted" provision adopted. The most egregious interference with local land use authority in the Report and Order comes in the form of a "deemed granted" provision, whereby an application filed under Section 6409(a) is deemed granted if a State or local government fails to act on it within the requisite review period. As with the review period itself, the FCC adopted this deemed granted provision in the absence of any statutory direction, relying instead on its regulatory powers as recently affirmed in the unsuccessful City of Arlington challenge to the Shot Clock ruling. True, an applicant seeking to use this remedy must still notify the tardy agency in writing that the time has expired and its application is thus approved, but agencies will find little comfort in this after the fact notice. RICHARDS I WATSON I GERSHON ATTORNEYS AT LAW -A PROFESSIONAL CORPORATION Scott Anderson April 16, 2015 Page 9 Section 6409(a) does not apply to proprietary government decisions. Though Section 6409(a) applies to State and local governments acting in their role as land use regulators, it does not apply to such entities acting in their proprietary capacities. Thus, a city approached by a wireless operator wishing to lease city -owned property for collocation need not agree to the request. Judicial, not FCC, review of disputes. In the event of a dispute regarding a Section 6409(a) issue, parties may bring disputes, including those related to the denial of an application or a deemed approved claim, to any court of competent jurisdiction. Public agencies can argue that despite the purported granting of the permit by operation of law, the approval is invalid because the facility does not meet the requirements of Section 6409(a). Section 6409(a) trumps the Shot Clock Rule and Section 332(c)(7). In those situations where both Section 6409(a) and the Shot Clock ruling (implementing Section 332(c)(7)) apply, Section 6409(a) will govern. This very significant provision somehow did not make it into the FCC's regulations, but adhering to it will be vital for agencies processing these requests. Bear in mind, the Shot Clock Rule and Section 332(c)(7) do not include a "deemed granted" provision, but Section 6409(a) does. In the words of the FCC, "whereas a municipality may rebut a claim of failure to act under Section 332(c)(7) if it can demonstrate that a longer review period was reasonable, that is not the case under Section 6409(a)." Local agencies will have to work fast to meet this deadline: the 60 -day review and approval timeline under 6409(a) is 30 days — an entire month - shorter than the corollary 90 -day review and approval timeline for collocations that come under the Shot Clock ruling implementing Section 332(c)(7). And the breadth of materials that may be requested of a 6409(a) applicant are much more circumscribed than those that may be demanded of a 332(c)(7) applicant. Your planner's first question when receiving any new telecommunications facility siting application will now be, "Does this qualify for 6409(a) review?" If so, you're off to the races. Shot Clock Rule Implementing Section 332(c)(7). With regard to Section 332(c)(7) of the Telecommunications Act, which applies only to the placement, construction, and modification of personal wireless services facilities, the Report and Order adopted "clarifications" to the 2009 Shot Clock Ruling. That ruling introduced "presumptively reasonable" review periods for State and local governments to act on a RICHARDS WATSON 1 GERSHON ATTORNEYS AT LAW -A PROFESSIONAL CORPORATION Scott Anderson April 16, 2015 Page 10 facilities siting application under Section 332(c)(7). Under the Report and Order, these additional requirements will apply beginning February 8, 2015: Clock starts with application submission, not completeness determination. The Shot Clock begins running the day after the applicant submits the covered application, not when the city deems it complete. This applies to both Section 332(c)(7) and Section 6409(a) applications, with one exception. For applications filed with the city pursuant to Section 6409(a) that the city then determines are ineligible for Section 6409(a) expedited processing, the clock will start to run from the issuance of the city's decision that Section 6409(a) does not, in fact, govern. Because such Section 6409(a) applications will likely require less information than an application filed pursuant to Section 332(c)(7), upon the city's determination that Section 6409(a) does not apply, the city may require additional information and the clock can be stopped with the issuance of an incompleteness Letter, as discussed below. Tolling still available, but more limited. A local government processing an application subject to the Shot Clock may toll its running, if it notifies the applicant within 30 days of submission that the application is incomplete — provided it complies with the requirements set out below. Specific deficiencies must be cited in incompleteness letter to toll. In order to have a tolling effect, any incompleteness letter must specify not only the missing information, but also the "code provision, ordinance, application instruction, or otherwise publically-stated procedures that require the information to be submitted." According to the FCC, this requirement of citation to chapter and verse in incompleteness letters "does not restrict [cities] to reliance on codified documentation requirements," so ostensibly a city would not need to amend its telecommunications ordinance to include the exhaustive list of all application requirements, but such a list will need to be prepared and made publically available. First incompleteness letter must cover everything city may require. Following an applicant's submission in response to an incompleteness letter, the city may reach a subsequent determination of incompleteness based solely on the applicant's failure to supply the specific information that was requested within the first 30 days. Thus, if the incompleteness letter inadvertently omitted some required information, the application cannot be deemed incomplete if the applicant fails to provide that information. The RICHARDS I WATSON I GERSHON ATTORNEYS AT LAW - A PROFESSIONAL CORPORATION Scott Anderson April 16, 2015 Page 11 shot clock begins running again when the applicant makes its supplemental submission; however, the shot clock may again be tolled if the city notifies the applicant within 10 days that the supplemental submission did not provide the specific information identified in the original notice listing the missing information. Moratorium will not stop the clock. As with the processing of applications under Section 6409(a), the Shot Clock will continue to run regardless of any applicable moratoria. Once again, the FCC has determined that the local use of moratorium powers must yield to the time limits imposed by FCC rules. Shot Clock applies to DAS/small cells. Where DAS or small-cell facilities, including third -party facilities such as neutral -host DAS deployments, are or will be used for the provision of personal wireless services, their siting applications are subject to the Shot Clock Ruling. This ruling comes as a result of some cities arguing that such facilities were not subject to the Shot Clock. No new remedies (i.e., no deemed granted) imposed. Despite industry requests, the FCC declined to adopt any additional remedy for State or local government failures to act within the 90/150 -day time limits. As was the case under the original Shot Clock, an applicant who believes the relevant time period has expired has 30 days in which to bring a "failure to act" claim before the local court and may even request an injunction granting the application in such a filing. However, each determination will need to be made on a case-by-case basis, and the defendant city will bear the burden of justifying the delay. Now What? The new rules and clarifications imposed by the FCC require a thorough review by the City of its existing procedures, application materials, and ordinances. This letter does not address every single change included in the new rules. For Section 6409(a), those rules may be found in Appendix B to the Report and Order (attached); for the Shot Clock Rule, those changes are included in the Report and Order pages 102-114 (available online at: http://www.fcc.gov/document/wireless-infrastructure-report-and- order). We recommend you review the City's application materials to see how broadly they are phrased. Do they capture all information necessary for reviewing applications under the new FCC rules? Consider how your planners will need to budget their time in order to RICHARDS 1 WATSON 1 GERSHON ATTORNEYS AT LAW -A PROFESSIONAL CORPORATION Scott Anderson April 16, 2015 Page 12 accommodate the new 60 -day timeline for review of Section 6409(a) applications, especially if a given application will require review by a body such as your Planning Commission. Be prepared to address how that same 60 -day timeline will work with appeals: according to the FCC, this new timeline is a "specific and absolute timeframe for State and local processing of eligible facilities requests under Section 6409(a)." Since applications under Section 6409(a) have been rendered ministerial, consideration should be given to whether these types of applications should be considered at the staff level. Holding public hearings at the Planning Commission or City Council level for modifications that are not subject to discretionary review will create a false impression that the Commission and Council have greater authority over these modifications than federal law allows. While it is outside the scope of this letter to do a thorough side-by-side comparison of the time limits imposed by the Permit Streamlining Act and the time limits imposed by the FCC's new rules and clarifications, staff should also remain cognizant that they are separate tests, and each must be followed. Very truly yours, 99904-005211821004v 1.doc