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HomeMy WebLinkAboutTC Agd Pkt 2002-08-08 TOWN OF TIBURON Special Town Council Meeting Town Council Chambers 1505 Tiburon Boulevard Tiburon, CA 94920 6:30 PM - Thursday, August 8, 2002 ~ \, '.1 ~. ~ ,.' - .\. " ASSISTANCE FOR PEOPLE WITH DISABILITIES In compliance with the Americans with Disabilities Act, if you need special assistance to participate in . this meeting, please contact the Town Clerk at (415) 435-7377. Notification 48 hours prior to the meeting will enable the Town to make reasonable arrangements to ensure accessibility to this meeting. AVAILABILITY OF INFORMATION I, Copies of all agenda report~ and supporting data are available for viewing and inspection at Town Hall and at the Belvedere-Tiburon Library located adjacent to Town Hall. ' PUBLIC HEARINGS Public Hearings provide the general public and interested parties an opportunity to provide testimony on these items. If you challenge any proposed action(s) in court, you may be limited to raising only those issues you or someone else raised at the Public Hearing(s) described later in this agenda, or in written correspondence delivered to the Town Council at, or prior to, the Public Hearing(s). TIMING OF ITEMS ON AGENDA While the Town Council attempts to hear all items in order as stated on the agenda, it reserves the right to take items out of order. No set times are assigned to items appearing on the Town Council agenda. AGENDA CALL TO ORDER AND ROLL CALL Mayor Gram, Vice Mayor Slavitz, Councilmember Berger, Councilmember Fredericks, Councilmember Thompson ORAL COMMUNICATIONS Persons wishing to address the Town Council on any subject not on the agenda may do so now. Please note however, that the Town Council is not able to undertake extended discussion or action tonight on items not on the agenda. Matters requiring action will be referred to the appropriate Commission, Board, Committee or staff for consideration and/or placed on a future Town Council meeting agenda. Please limit vour comments to no more than three (3) minutes. -..".',~: ..,~ -.,.", ". ,~ r \~: ' ., Agenda - Town Council Meeting . August 8, 2002 .page 2 of 2 REGULAR AGENDA 1. Recommendation by Town Manager, Town Attorney and Director of Community Development - Actions related to a Project to Install an Emergency Radio Communications Facility at 145 Sugarloaf Drive and Making Findings with Respect Thereto . a) Approval of Minutes of July 31, 2002 Special Town Council Meeting . . b) Adoption of a Modified Resolution of the Town Council of the Town of Tiburon Approving the Southem Marin Emergency Radio Facility at ,/ 145 Sugartoaf Drive-AP No. 58-351-31. . , . , '. ADJOURNMENT ~ to August 21, 2002 regular meeting "",,0:: r-;p ;,:-;:;} )l~'~ ~ $€;~! ~fS',rS"'f:.)''7'~?''j.rj(X'd''~f8:l''\'tZ~, r'~!}~:~~~II~U~ nu -' 'f,.,..~\t "'1'....::"': I :,"f.. ',;,~,,"s..'~t~.:t~SJ<:;i.~;''\;''', -::..~ ;,. '~"..J\T:-:; ~ -.? 1{.:! i" ~\... ':.f' (';i~ d".;i~A / !~ cO; "=) SS :iA.\1.i.itl i:' r:".:-i,; ..~ (~ ,s,')--Jor""', .~ .,... " Town of Tiburon STAFF REPORT I AGENDA ITEM .... .... . . .. . . . . ..... ... . .... ..... .., . ..... . .. TO: MAYOR AND MEMBERS OF THE TOWN COUNCIL FROM: ANN DANFORTH, TOWN ATTORNEY SUBJECT: MERA FACILITY AT 145 SUGARLOAF DRIVE ADOPTION OF JULY 31, 2002 MINUTES AND RESOLUTION MEETING DATE: AUGUST 8,2002 REVIEWED BY: . . . . . . . . . . . . . . . . . . . .. .................... BACKGROUND On July 31,2002, the Town Council held a public hearing on a proposal to construct a wireless communications facility at 145 Sugarloaf Drive ("Project"). The Project would be a critical component of the Marin Emergency Radio Authority's communications network for public safety personnel. After a six and one-half hour public hearing, with lengthy public comment, the Council adopted a resolution making findings, adopting the staff report as an addendum to the EIR and approving the Project. On August 1, 2002, a group of neighborhood opponents to the project, organized under the name Tiburon Residents against Unfair MERA Antenna Siting ("TRAUMAS") filed a lawsuit to block the project. Both parties have agreed to an expedited hearing schedule to resolve the merits. To meet this deadline, Len Rifkind, counsel for the petitioners, has requested that we deliver the record of the project approval by Friday, August 9,2002. To meet that deadline, we have noticed this special meeting, for the Council to approve the July 31st minutes and the final form of the Council resolution approving the project. ANALYSIS 1. Council Minutes. The Mayor has asked that I address the Council's legal duties with respect to minutes for its public meetings. There are few legal requirements. Section 36814 ofthe California Government Code provides the following: Journal of proceedinQs The Council shall cause the clerk to keep a correct record of its proceedings. At the request of a member, the city clerk shall ., . , 01 fiB ." ._:/~&~~_. o . . . <""/... ,"" .' OfllvlA \~{. '. i August 7, 2002 1014 Town of Tiburon STAFF REPORT AGENDA ITEM enter the ayes and noes in the journal. There is no legal requirement that the minutes contain a complete, verbatim, transcript of the public meeting. The Council may lawfully adopt the minutes if a majority of the Council believes that they are a fair and accurate description of the meeting. The Council is not required to accommodate requests to modify the draft minutes unless the Council believes that changes are necessary to fairly describe the proceedings. The Town has a tape recording of the July 31,2002, meeting. If any person wishes a more complete record of the proceedings, they may obtain a copy of the tape from the Town Clerk. We are under considerable time pressure to complete the administrative record for the TRAUMAS litigation, which must include the approved minutes. According, we recommend that any changes the Council makes to the minutes be limited to corrections of misstatements or significant omissions. 2. Resolution ADDrovina the Proiect. Staff presented the Council with a draft resolution at the July 31st meeting. The Council directed a number of changes to the resolution before adopting it. Upon circulating the revised resolution, the Mayor and staff identified several errors and ambiguities. Accordingly, staff believes it proper to return the revised resolution to the Council for final approval. I summarize the changes below: Section 1, Findino C: We have clarified the need for expeditious resolution of the siting problem, as set forth in the June 19, 2002 staff report. We have also clarified the statutory basis for the urgency ordinance as Sections 36934 and 36937 of the California Government Code. Several comments at the July 31st meeting indicate confusion regarding the statutory basis, due to a clerical error in Section 7 of the ordinance (a non-substantive section) mis-citing the statutory authority. Section 1. Findino F.2: We have added "and Sausalito" to the end of this section, to more accurately reflect the problems with the rejected sites. Section 1. Findino F .5: We have amended this section to note that (a) the EMF report predicts the worst case emissions; and (b) the facility emissions will be substantially below FCC standards. C:IWINNT1ProfileslDcranelLocat SeltingslTernporary tnternet FilesIOLKA0\145 sugar/oaf SR Minutes Revised Reso. doc ,. '\ " ., August 7, 2002 2014 Town of Tiburon STAFF REPORT AGENDA ITEM Section 1. FindinQ F .6: We have added a sentence to the end of the finding noting that the antenna would be shielded from view by mature trees. Section 2. Condition 5: We have clarified that the 6-foot fence will be located around the water tank lot (rather than merely the MERA facility). , Section 2. Condition 6: As directed at the meeting, we have added the requirement for safety shielding and/or relocation of the propane tank, to protect persons and property from harm in the event of an explosion. Section 2. Condition 9: We have clarified that the air conditioning unit shall be placed on the equipment shed in the location where the least noise shall be heard from neighboring homes. Section 2. Condition 11: We have clarified that the vehicle restriction applies only to MERA-related traffic. Section 2. Condition 11: We have clarified that the lighting restriction applies only to the MERA facility. Section 2. Condition 14: We have clarified this condition to apply to the site's redwood trees. We have also provided that the subject Tree Protection and landscape Screening Enhancement Plan shall be implemented as soon as practicable to ensure maximum survivability of the trees. Section 2. Condition 15: We have corrected this condition to state that only one antenna shall remain after the MERA facility is complete. Section 2. Condition 18: At the July 31st meeting, Co~ncil directed staff to add this condition, requiring MERA to relocate the antenna facility if the Town located a new, non-residential site and obtained permits and financing. We have clarified that MERA would not literally move the Sugarloaf antenna but would construct a new facility at the alternate site, then de-activate and remove the Sugarloaffacility. We have also clarified that MERA would assist in locating the site and obtaining permits and would be responsible for any necessary FCC licenses. C:IWINNTlProfileslDcranelLocal SefflngslTemporary Internet FileslOLKAOl145 sugar/oaf SR Minutes Revised Reso. doc August 7, 2002 3014 ! , .I I Town of Tiburon STAFF REPORT , ," ,,~. :. ,.";:":,:,,,,-: ..,! ,,,:, . ..:= "~.";~: ~' . .J, . '" r- , AGENDA ITEM RECOMMENDATION " ............................................. .. '- . ".J ' .-. - . ,\ We recommend that the Council take public testimony and then proceed to: ,/', . .... .- "'''. 1. Adopt the minutes of the July 31, 2002 meeting; and 2. Adopt the corrected Resolution adopting the EIR Addendum and 'approving the project with conditions~ EXHIBITS 1. Draft Minutes 2. Draft Resolution ,',., "';',,-', "I'. .' . "t "I',,' . . -; ',l. ,,'~ ~ ",;,. . .' I~_~ .' :',~ I' 1,- C:IWlNN11ProfileslDcranelLocal SetlingslTemporary Internet FileslOLKAOl145 sugar/oaf SR Minutes Revised Resa.doc \, ..' August 7, 2002 4014 ,'. , , ,''t_ ", TOWN COUNCIL MINUTES ,. ,'. .<1' .,<.... CALL TO ORDER Mayor Gram called the special meeting of the Tiburon Town Council to order at 7:30 p.m. on Wednesday, July 31, 2002, in Town Council Chambers, 1505 Tiburon Boulevard, Tiburon, Cal i fornia. ROLL CALL PRESENT: COUNCILMEMBERS: Berger, Fredericks, Gram, Slavitz, Thompson PRESENT: EX OFFICIO: Town Manager Mclntyre, Town Attorney Danforth, Director of Community Development Anderson, Senior Planner Watrous, Director of Pub lie Worksrrown Engineer Eehols, Chief of Police Odetto, Director of Administrative Services McVeigh, Administrative & Financial Analyst Stott, IT Coordinator Monterichard, Town Clerk Crane Iacopi ORAL COMMUNICATIONS None. PUBLIC HEARING I. Recommendation by Town Manager, Town Attorney and Director of Community Development - Review and Consider Action on a Project to Install an Emergency Raqio Communications Facility at 145 SugarloafDrive and Making Findings with Respect Thereto . Town Manager Mcintyre gave the first portion of the Staff report. He said that the current county-wide communications system was broken and needed to be fixed. He said that 25 public agencies handed together in 1998 to tonn a Joint Powers Authority which created MER A, and subsequently sold $27 million in bonds for a new system. A system-wide ElR was subsequently approved by the MERA Board tor 27 sites; only one site was located Southern Marin. Mcintyre said that the MERA EIR identified two sites, both on MMWD water tanks in Southern Marin, and both located in residential neighborhoods in the Town ofTiburon. The first site was 99-1/2 Mt. Tiburon Road and 145 Sugarloaf was named as an alternate site. According to Mcintyre, the Tiburon Planning Commission rejected MERA's application in 2000 for a conditional use permit and called for a '~more comprehensive review" including finding alternate locations. In 200 I MERA, Town Staff and interested Mt. Tiburon residents pursued the Town Council Minutes # -02 July 3/, 2002 Page J , idea of using Angel Island State Park as an alternate site because the location (on Mt. Livermore) would provide the best coverage for Southern Marin and the radio frequency emission (RF's) would not affect yany.nearby _res1.~~n~~s. Ac~<?r.~_i.!!g _~g,}Y~~!!l.ty!c:,_~~c:~_!!~c.:!()_~~_~e~~tjngs~i.!~_~_.--""[ Deleted: affect Park Staff and officials, the State Parks system would not allow placement of an antenna in the proposed location (on Mt. Livermore) Mcintyre listed other locations that were also considered by ~e Town: . Ring Mountain was rejected for poor coverage and lack of [Town] jurisdiction; . Gilmartin Open Space was rejected for poor coverage, difficulty of access and the antenna facility would have to be too tall; . St. Hilary's Open Space was rejected for poor coverage and lack of [Town] jurisdiction because it is owned bv the Countv. Mcintyre said that Woltback Ridge in Sausalito, home ofan existing "antenna farm," was shown in a study by Motorola to have inadequate coverage and applying for a permit to place an antenna in that location would require a supplemental EIR, as well as review and approval by the Golden Gate National Recreation Area (GGNRA). Mr. Mcintyre answereq the question of why 145 Sugarloafwas being considered after rejecting ,-the Mt. Tiburon site. He said that the Town had run out of time because MERA's goal was to have the installation [in Southern Marin] complete and the system up and running by the end of October. and because MERA had threatened to oroceed at the Mt Tiburon site without Town aooroval. He also said that the Town Council was uncomtbrtable with the visual (and other) impacts of the Mt. Tiburon site and had asked to study another location to see if it would have less impact. The Council therefore adopted an urgency ordinance which streamlined the planning process for review of the Sugarloaf site. Mcintyre said that Town Staff would present the findings ofthat study to the CounCil tonight. Director of Community Development Anderson reviewed the two sites. He said that the MERA facility at 99-1/2 Mt. Tiburon Road would be comprised of a 60-foot monopole with two transmitter antennas; and a 12-foot whip antenna atop the pole. He said that the Tiburon Ridge Trail was about 15 feet from the monopole. Anderson also said that there would be two, four-foot microwave antennae on a separate 20-foot pole at this site. Other components of the facility included an equipment shed, propane tank, and emergency generator. Mr. Anderson said that the alternate location, 145 Sugarloaf Drive, would contain a shed, propane tank and generator, a 48-foot monopole which would be 13 inches in diameter and a 10- o foot whip antenna atop it. Therefore, Anderson said, the antenna at Sugarloafwould be 58 feet Town Council Minules # -02 July 3/, 2002 Page 2 , ~,"" ,. < ~ ~ . . ~~~'" -,,c. .\~.:~ .~,' . " ~: ~ ..~:.. 'J' "';\. "- ,". ,. "." - ) .:'-,' ".,;:,::':t'~..;. ; '. ..:....;) " "i '-'l J. ::, .1:~~,::'"t~,~)~\~:;,:,. .~: I 1'; .,,::":,~.{~:;::. '", :' ""." ,; \'.' ')' ~~. ... , fu.' ~~:' - . ... 1- ~,:;,: "w" ~' , ." .- ~: :,t ,/~~ ." in height compared to 72 feet at 99-1/2 Mt. Tiburon Road. ., Anderson said that the closest house to the monopole was \4\ Sugarloaf Drive. He said that unlike the Mt. Tiburon site, the RF emission pointed away from the Ridge Trails (which was on that public street, Place Moulin, at that location) versus directly over the Tiburon Ridge trail at the Mt. Tiburon site. " Director Anderson then showed side and front views ("naked elevations") of the proposed facilities at both locations, and a close-up view of the two transmitter antennae. . '. He said that the 72-foot antenna at Mt. Tiburon was difficult to screen. He showed the audience and the Council a story pole photograph and a MERA photo simulation of the proposed antenna in the vicinity of 193 Gilmartin Drive. He also said the pole would be fully visibly from the Zack home at 99 Mt. Tiburon Road and the Tiburon Ridge Trail and partially visible from several other, surrounding homes. The Sugarloaf antenna, according to Anderson, was only partially visible from the street and the residences located at 1 Place Moulin and 141 Sugarloaf Drive. He said that the whip antenna was probably visible to 133 Sugarloaf Drive. He stated that the two pine trees that currently provided screening from 141 Sugarloaf Drive would be removed lby MMWD] for the placement of a second water tank at that location within the next five years and that speedy replacement was essential. He noted that the Town had received a copy of the arborist's report concerning the aforementioned trees, which stated that they were both in poor health. As to the issue of noise, Mr. Anderson said that the back-up generator and Ale unit would be potential sources of noise at both locations. The generator would be tested once a week for 15 minutes. Anderson said that the noise was well within the "Noise Compatibility Guidelines" of the Town's General Plan. However, he said that Staff recommended additional sound attenuation m~tigations, including an enclosure for the generator. Finally, Director Anderson addressed the issue ofRF emissions at the proposed locations. He said that the maximum emissions at homes around the Sugarloaf site were calculated as follows: 7.7% of the FCC standards at I Place Moulin: 1.5% at 141 Sugarloaf; and less than 1% at 109 Mt. Tiburon Road. These percentages were compared to 21.6% at the Zack home (99 Mt. Tiburon Road), adjacent to the 99-112 Mt. Tiburon site. Anderson summarized the impacts of the Sugarloaf site as being lower both visually and with respect to RF emissions on nearby homes, as compared to ~he Mt. Tiburon site. Town Attorney Danforth reviewed some ofthq:Ju~~!~~~:~_~~~~~,~"-~~g th~,~g,~~_'!PPJ..~~'!~9.!"!...___.._____--- Deteled: moot'/'/'/?'I?'/??? relating to the environmental documents. She said that the MERA ElR was certified in 2000 and ----- Inserted: 1711111'/'/1 the question arose why a new EIR was not needed for the Sugarloaflocation currently under consideration. Ms. Danforth said this was because the Sugarloaf site was named as an "alternative" in the 2000 EIR. Also, under CEQA, the Town could not require a supplemental or Town Council Minutes /I ~()2 July 31.2002 Page 3 .>: , '. ., '.... subsequent EIR was only allowed under ceruiin very limited circumstances. Unless there is a project change causing new or more severe impacts than predicted in the EIR; a change in circumstances causing new or more severe impacts than predicted in the EIR; or new, previously unavailable infonnation of substantial importance to the project (as defined by the Guidelines), the Town cannot require a new ErR. Ms. Danforth said that some might view the move to the Sugarloaf site as a change in the project (although CEQA does not require that it be treated as a change, because it was an EIR alternative). However, there is no evidence that the development of the facilities at the Sugarloaf site will cause new or worse impacts than predicted by the EIR. There is also no evidence of a change in circumstances or new, previously unavailable information that would trigger the need for a supplemental or subsequent EIR. She said that these circumstances the environmental consequences orthe Sugarloaf site were properly studied in an addendum to the EIR. Ms. Danforth, therefore, recommended that the Council adopt the staff report as an addendum to the MERA EIR and the lindings set tbrth in the draft resolution. Jeff Pellegrini ofGrcen Drake Engineering, engineering consultant hired by the Town of Tiburon, gave a presentation on RF's in relationship to the MERA sites. , Mr. Pellegrini described an RF as "radio frequency energy" or uradio waves." He said these were primarily used for telecommunications purposes and were licensed and regulated by the FCC. He said they were measured by both frequency and wavelength, and noted that the MERA frequency was 485 megahertz. Mr. Pellegrini said that radio waves attenuated very quickly. as a function of the square of distance from the antenna. He s,aid ~~~ thc",p!.?p.9se~~ERA t~t.lns~i"!!~!.,~!.l.!cnryE.e at 145 Sugarloaf had a very narrow aperture which pointed outward. ~."-[ Deleted: prop<)rlionall0 dis\.arlce Pellegrini described how the FCC regulated human exposure to RF energy, using an "occupational" versus "general public" measurement. He said that the acceptable levels set for the latter were five times more restrictive (.32mW/CM so) than the occupational levels. Also, he ......_-[ Deleted: cml2 . - .._- --~----"'-"'-_._.._------ said that the FCC set limits for both categories that were far below where exposure to RF's was considered "safe," He said there was a second aspect to measuring RF's, that is, "power density" which was based on exposure over time. He said that the time average utilized by the FCC was a six-minute "window" and exposure would be considered "in compliance" even if it exceeded the maximum "safe"limit as long as it dropped below that limit again during the six-minute window. On a chart shown to Council and the audience, Pelleb'lini noted that the RF exposure at the Sugarloaf site was "far below" what was considered safe, and never came d.ose to reaching that limit. Town Council Minutes # -02 July 31,2002 PaKe 4 'f. ...... ,.,'{ In describing the physical facility, Mr. Pellegrini said the top portion of the antenna was a ureceive only'~ component, and that the four~foot microwave connected the s~te to the rest of the MER A locations. He said that the Sugarloaf microwave antenna would be directed toward Pt. , San Pedro and there would be no downward energy emitted at that location from the microwave antenna. Mr. Pellegrini said that the two panel antennae, which would provide coverage to local police and fire personnel, provided the main transmit power beam. He said that the vast amount of . energy was transmitted toward the horizon while noting that there was a component of energy .that goes in all directions. He described the output as O. I % of the general public limit at the Sugarloaflocation at the front of the antenna and 0.05% at the rear. Mr. Pellegrini went on to describe the six existing antenna on the water tank at 145 Sugarloaf Drive. He said they were omni directional antennae with a combined wattage of534 if they were all going at once. He said he had measured varying degrees of power density-21% at street level and lower behind the tank on the benn, using a "worst case" scenario. He said that all but one (the Golden Gate Bridge District) of these antennae would be removed and consolidated onto . I the new MERA antenna which would be oriented at 270 degrees, away from the street and away I from 141 Sugarloaf Drive. Therefore, there would be a decrease in the RF energy currently directed at this residence. Mr. Pellegrini said his study estimated a 5% RF measurement at street level and 16.8% at benn height (on the MMWD property). Mr. Pellegrini said that the MERA facility at Sugarloaf Drive had a maximum of 1530 watts, which would be reached if all nine channels were transmitting continuously. Mayor Gram asked if the output would ever be that high. Mr. Pellegrini responded that it would be almost physically impossible to achieve given the ""burst" nature'ofthe dispatch system. He also noted that this was a "worst case" scenario and said that the MERA system antennae were designed to be very efficient. Pellegrini compared the wattages of some everyday appliances for RF comparison purposes. He said that a baby monitor had 12 watts, a cell phone had 29, and a cordless phone had 14. Likewise, he said that for comparison purposes, the RF emissions from the MERA antenna would be 12.9% at the 141 SugarloafDrive property line (down from the current 16.7%): and that the emissions would be slightly higher at 1 Place Moulin, but would be slightly lower at 109 Mt. Tiburon Road. Pellegrini said he had also taken measurements at ditTerent locations on the 145 Sugarloafsite, ranging from 2% at ground level at the base of the monopole, going as high as 15% as he went up in elevation to the top of the benn, but dropping otTto less that 1% at 100' feet away from the antenna. Town Council Minutes # -02 July 3/.2002 Page 5 Mayor Gram allowed questions from the audience. One question concerned whcther the "main beam" was oriented to SallSalito and Tam Valley. Mr. Pellegrini said that although it was focused "away from" Tiburon it would provide coverage to Tiburon. Mayor Gram asked MERA Executive Director Marty Nichols whether he would like to respond to some of these questions. Mr. Nichols said that the coverage area was from the end of the Tiburon Peninsula to Strawberry to Tam Valley to Marin City and Sausalito, and included all of these locations in the [MERA] specifications for 97% coverage. Brian Lantier, 141 Sugarloaf Drive~ asked whether the 270 degree orientation was ''true'' i.e. baSed on compass north. He said it was impossible to compare the location to the "Zack" site because there was no true north shown on those photographs. He wanted to know if the antennas were pointed in the same direction at both sites and whether there was actual proof that the beam indeed "hit" the lack house: Mr. lack responded that it did, based on whafMERA had shown. Mary Ellen Wetlesen said it was also in the EIR. Vice Mayor Slavitz concurred, stating that on Page V -184 of the EIR the maximum RF levels were shown to be 21.5% in a southwest direction (the lack's bedroom) and 1.2% at the children's playhouse. Mr. Pcllcgrini was asked whethcr thc height of the berm seemed to make a differcnce. Hc said that the measurements were taken at the closest distance between the structure and the antenna, and said that the person who performed the power density study at that location [99-1/2 Mt. Tiburon Road] said the measurements had been taken on the berm. Council member Berger asked if the measurements were always taken at the high point. Mr. Pellegrini affirmed this. He said the methodology and formulas were taken directly from the FCC and could be found on their website. Allan Letkov asked whether the source document with engineering specifications was available to the public for the measurements done at 145 SugarloafDrive. Mr. Pellegrini said he used the specifications provided by the Town. Director of Community Development Anderson said that the drawings were prepared for Motorola by Tower Structures (the company who did the actual installations). Mayor Gram called upon Tiburon Police Chief Matthew Odetto to give the next portion of the Staff report. ChiefOdetto stressed the importance for public safety of the police and tire agencies to be able to communicate with each other. He said that during the September II tragedy in New York, the Town Council Minutes # -{J2 July 3/. 2002 Page 6 .. . ';'" Y;t;:"t':!.;?:~:::'~:,.. "'. '. '. *" ::'.""(.f- ~ .~' '.:-r, .! ./ I,.' , ,. ,. ,.., -' . . .~ police had been able to communicate with their personnel in the field but that the Fire Department had been unable to do so because of ouunoded technology. This resulted in unnecessary loss of life, according to Odetto. ChiefOdetto cited other examples of communications failures in other situations and said that. the purpose of MERA was to preclude these tragedies and assist in public safety Countywide. As one example, the Chief related the story of an officer in Sausalito, who sustained a gunshot wound in the line of duty. He stated that paramedics had difficulty reaching the wounded officer because of problems with the curre~t communications systems. ChiefOdello said that if the Town was unable to be part of the MERA system, it would have to build its own communication center, hire its own personnel, obtain licenses from the FCC, and still be unable to communicate with the other public agencies in Marin County. He said that without the Tiburon "piece" MERA would be incomplete and that the Southern Marin installation was part ofits backbone. ChiefOdello said that he and the dedicated men and women of the Tiburon Police Department were here to take care of you and he asked the audience for its support in achieving the completion of the proposed network. Alex Fonnan, MMWD Boardmember, said it was not the policy ofMMWD to offer its locations for commercial siting of antennas. He said that his agency needed the MERA system. as well. because some of the MMWD rangers could not be communicated with while they were in certain open space areas. He concluded by stating that MMWD was not in the business of endangering people's health. Tiburon Fire Chief Rich Pearce concurred that the Tiburon site was critical to the success of the countywide communications system and that the current system was aging and obsolete. An unidentified member of the public asked Chiefs Pearce and Odello whether it made any difference to them whether the MERA antenna was located in a residential or non-residential area. They replied that it did not. An unidentified member of the public asked Boardmember Fonnan whether MMWD would litigate on behalf of the neighbors if a company sued for access to the Sugarloaf site for antenna placement. Again, Mr. Fonnan said that in the past MMWD had been resistant to commercial uses of its sites which would require a change in policy. He said that the current Board was not inclined to do so and that "suing doesn't scare us," Mr. Lantier asked Boardmember Fonnan whether anyone had infonned MMWD since the adoption of the EIR that the Town would prefer to have the MERA antenna located elsewhere than in a residential neighborhood. Town Cauncil Minutes # -02 July 31. 2002 PaKe 7 . , Mayor Gram allowed questions from the audience. One question concerned whether the "main beam" was oriented to Sausalito and Tam Valley. Mr. Pellegrini said that although it was focused "away from" Tiburon it would provide coverage to Tiburon. Mayor Gram asked MERA Executive Director Marty Nichols whether he would like to respond to some of these questions. Mr. Nichols said that the coverage area was from the end of the Tiburon Peninsula to Strawberry to Tam Valley to Marin City and Sausalito, and included all of these locations in the [MERA] specifications for 97010 coverage. Brian Lantier, 141 Sugarloaf Drive, asked whether the 270 degree orientation was "true" i.e. baSed on compass north. He said it was impossible to compare the location to the "Zack" site because there was no true north shown on those photographs. He wanted to know if the antennas were pointed in the same direction at both sites and whether there was actual proof that the beam indeed "hit" the Zack house: Mr. Zack responded that it did, based on what MERA had shown. Mary Ellen Wetlesen said it was also in the EIR. Vice Mayor Slavitz concurred, stating that on Page V-184 of the EIR the maximum RF levels were shown to be 21.5% in a southwest direction (the Zack's bedroom) and 1.2% at the children's playhouse. Mr. Pellegrini was asked whether the height of the berm seemed to make a difference. He said that the measurements were taken at the closest distance between the structure and the antenna. and said that the person who performed the power density study at that location [99-1/2 Mt. Tiburon Road] said the measurements had been taken on the berm. Councilmember Berger asked if the measurements were always taken at the high point. Mr. Pellegrini affirmed this. He said the methodology and formulas were taken directly from the FCC and could be found on their website. Allan Letkov asked whether the source docwnent with engineering specifications was available to the public for the measurements done at 145 Sugarloaf Drive. Mr. Pellegrini said he used the specifications provided by the Town. Director of Community Development Anderson said that the drawings were prepared for Motorola by Tower Structures (the company who did the actual installations). Mayor Gram called upon Tiburon Police Chief Matthew Odetto to give the next portion of the Staff report. ChiefOdetto stressed the importance for public safety of the police and fire agencies to be able to communicate with each other. He said that during the September 11 tragedy in New York, the Town Council Minutes # -02 July 31. 2002 Page 6 ':. '.' " :~ "~.' - \. ..:~ '-, " .' ~- ~ -"~ 7" " \'. , .-: ':.'~. " --, , , He said he also had meetings with Assemblyman Joe Nation and representatives from John Burton's office. Thompson said that he still believed that the antenna could go on Angel Island, but not right away. .' Another audience member said that the issue of public safety was two-fold in that many of the people who had signed the petitions against siting the MERA antenna in a residential neighborhood did so for (public) safety reasons. Mayor Gram said the Council understood this. Mayor Gram asked Executive Director Nichols what MERA's position was with regard to [its] ownership of the Mt. Tiburon site. Mr. Nichols said that the MERA Board had voted to buy the site from MMWD and now owned the (Mt. Tiburon) site, as well as the FCC licenses for that site. He said that the MERA Board would vote tomorrow whether or not to proceed with construction at that location depending on what the Town decided to do with regard to the Sugarloaf site. In response to questions from the Council and the audience, Mr. Nichols said that 17 sites had been looked at in the Southern Marin area and that MERA had determined that that they needed to meet certain minimum requirements, such as (a preference that) the land be publicly owned (in order to keep the costs of permits down) and to avoid other land use issues such as conflicts with (the requirements of) open space bonds. Councilmember Berger asked what MERA had concluded about the Gilmartin Open Space location. He asked whether the technical aspects were studied; how tall the tower (antenna) would have to be and whether it would work. Mr. Nichols said that the antenna would have to be exceptionally tall and it would be highly visible. In response to a question from Mayor Gram, Nichols said that siting an antenna there would also require a new EIR. Gram asked whether MERA would be prepared to do one. Mr. Nichols said no. Council member Thompson also noted that there had been neighborhood opposition regarding that location when the Council had discussed the possibility at a previous meeting [April 17]. Vice Mayor Slavitz said he thought it was appropriate to address the questions concerning "the process." He said it looked like MERA had not done any work to find alternate locations after the Planning Commission rejected its application (for Mt. Tiburon) in 2000. Mr. Nichols said that the MERA EIR analyzed two principal sites in Tiburon. He said at first a lower antenna [than Sugarloaf] was specified for the Mt. Tiburon location; then that application' was rejected and MERA' s appeal of that decision was withdrawn (by former Executive Director Brock Arner who subsequently left the agency). Then MERA (and Nichols) looked at the northwest slope ofMt. Livermore on Angel Island at the request of the Town. He said that this location was rejected because the Stale Park wanted to restore the area. He said that MERA then Town Council Minutes # -02 July 31,1001 Page 9 presented a plan (to the State Park Dept.) whereby the facility would be buried and camouflaged on the mountain side but this, too, was rejected according to Nichols. Director Nichols said that the contract with Motorola to install the MERA system would conclude on December 31 (2002). He said that the MERA members were paying for two systems now and that MERA would be unwilling, in his opinion, to "start over." He said that it would take nine months to study the Gilmartin open space location and apply for licenses, etc. Mayor Gram asked whether MERA would be willing to look at other sites if the Council did not approve the Sugarloafsite at the conclusion of the meeting. Mr. Nichols replied that he thought the Board would vote to move forward and build the facility at the Mt. Tiburon location, however, ifthere was a way to finance a new installation in ariother location he thought MERA would be willing to consider it [down the road]. Debbie Boorstyn said that six weeks was not sufficient time to study the Sugarloaf location, and that a lawsuit would certainly cause delays, as well. She questioned the constitutionality of the process. This sentiment was echoed by a question to Nichols that ifMERA knew two and a half years ago that there was opposition in Town to a residential location, why did it not start this "nine month process" then? Mr. Nichols replied that he had to face current realities and that "we can't tolerate further delays." He said it was MERA's desire to build a system outside a residential neighborhood but that the topography ofthis area was not conducive to finding a suitable location in Southern Marin that was not in a residential neighborhood. An unidentified member of the public asked whether the EIR made reference to the Gilmartin Open Space. Mr. Nichols said that it did not. Dr. Lynn Fox commented that the residents paid for this open space and asked why MERA couldn't take this issue up with the County (who now owned it). Mayor Gram asked whether MERA would consider placement ofan antenna in the St. Hilary's Open Space, or another location if the Town could come up with one in the next one to four years. Mr. Nichols said that the Board had voted to build at the Mt. Tiburon location but he said he thought another location could be considered as long as MERA did not have to pay for it. He estimated this cost to be $750,000 plus moving costs, or $800,000-$900,000. Mr. Lantier questioned why the Town could not just adopt another urgency ordinance and offer MERA a 30-day deal for the Gilmartin Open Space. Mayor G"!,,, said that the Gilmartin \, Town Coum:i/ Minutes # -02 July 31.2002 Page 10 J .' " location was not in the original E1R and therefore the Town could not utilize the process of an addendum to the ElR like it was doing with the alternate, Sugarloaf, site. Councilmember Thompson said that the Council had been proactive in dealing with the MERA Board and had told them that they would prefer to have it in open space rather than a residential neighborhood, but that John Roberto (MERA ElR consultant) had objected, citing MERA's exposure to lawsuits ifit were'to build in a designated open space location. Mr. Lantier suggested that MERA could file a negative declaration anyway and let the "tree huggers" stand in line at the courthouse. Mayor Gram said that the Town was obligated to make its annual $65,000 bond and maintenance payment whether or not it was in or out ofMERA. and that the costs of having our own system were prohibitive. Councilmember Thompson noted that even if this were to happen, the Town would be broadcasting on thc existing (police and fire) antennas already located at the Sugarloaf site. An unidentified member of the public asked why neither neighborhood received notice of the pending EIR. Mayor Gram said that the Council did not know about it either and that the Town's representative to the MERA Board voted for it. Dr. Fox asked whether the Motorola equipment was "state of the art." Mr. Nichols said that the system was designed with digital technology, which could be upgraded, and was expected to last for 20 years. Mayor Gram concurred and said that the system was considered "public safety state of the art." Eric Artman asked if the Bolinas site was moved due to local opposition. Mr. Nichols said that the site was moved and a supplemental EIR will be required; however, he said that MERA would be unwill ing to do the same for Tiburon. Mr. Nichols said that the Bolinas facility was not essential to begin operation of the MERA system. In contrast, the Tiburon facility is an essential component of the system. For this reason, MERA must complete construction of a Tiburon site as soon as possible. Another question arose concerning the original rejection of the Sugarloafsite for five reasons and why, or if, those reasons had in ract changed. Mr. Nichols stated simply that the site was rejected in favor afMt. Tiburon. Mayor Gram asked Richard Chuck, MERA engineer, to respond to the question of whether the system would broadcast at its maximum capacity of 1530 walts. Mr. Chuck said that the system as licensed by the FCC had nine channels that could broadcast at 170 walts per channel, but that this would only happen possibly during some big disaster. He said that on a "busy day" the system would be at around 60"10 capacity but that 25-30% capacity would be more typical. Town Council Minutes # -02 July 3/, 2002 Page JI r , '.. ~ .' . .'~ " - ", ::", .'~~ ..... .:';;;. 'j-."\.'"~~' Mr. Letkov asked Mr. Chuck for the engineering source document from which the Town's RF expert worked. Mr. Chuck said that the document was included in the original EIR and that MERA had also given him [Mr. Pellegrini] some infonnation for the other sites. He said that the location and angles used by Pellegrini were detennined at the site based on the drawings used for the site. Councilmember Thompson asked which site offered the best coverage. Mr. Chuck said that the Sugarloaf site offered better coverage because it was higher and had fewer obstructions, although that site had originally been rejected in favor ofMt. Tiburon due to visual and environmental concerns. Mr. Nichols reiterated that both sites met the 97% coverage criteria for the MERA system and confinned that the Sugarloafsite had been rejected due to the visual impacts ofa 100-foot tower, originally specified for that location. In response to a question from the audience, Mr. Nichols said there was no coverage loss by reducing the size of the Sugarloaftower to 50 feet. A question was posed whether the system was '~oice only" and was answered that it was. The subsequent question concerned whether there would be increased wattage or RF's if the system was later enhanced to include data transmission. Mr. Chuck said that no more wattage would be needed, but that generally more sites would be required for data enhancement. Carolyn Friedman asked whether satellite communications had been considered. Mr. Nichols said that a satellite worked from point to point with fixed locations, but that it does not work for moving vehicles or moving people. He said the MERA system was designed to work for mobile radio units. Mr. Lantier asked whether the contract with Motorola actually fixed a date certain. Mr. Nichols said that MERA's attorneys said that it did, and that it was probably contained in the first amendment to the contract. Kirk Hansen asked how long an additional EIR would take (of the Gilmartin Open Space), what the additional costs would be, and whether it was a "no win" situation anyway. Mayor Gram asked if an EIR took nine months, how long would it take to build a new facility. Mr. Nichols said 90 days, and added that if the project was delayed past a certain time, Motorola would do something, such as pull their crews out of the area. Council member Thompson said that MERA had already said it would not consider the Open Space because there was too high a risk of non-approval and lawsuits. Therefore, Thompson said it was the duty of the Council to package an approval the best way it could for the Town and for the future. Mayor Gram added that if the Town tried to stop MERA by filing an injunction for a temporary restraining order, it would probably lose, based upon his understanding of the Jaw which allowed Town Council Minutes # -02 July 3/. 2002 Page J 2 a higher governmental authority to have precedence in the situation. He said that the Town was not in a strong [legal] position. An unidentified member of the public asked how MERA could build in Town without a conditional use permit. He added that if they could go ahead and build without the Town's permission, why did they apply for a permit in the first place. This person asked if the Town could "red tag" the project. Mayor Gram replied that the Town could do so but would still have to file a legal action to stop the work. He concurred with the audience that MERA was "an arrogant gorilla" and that the Town had been outvoted 25-1 or 24-1 on numerous occasions. He said the Town could sue but he thought the Town would lose. Mayor Gram also said this opinion was shared by outside Counsel hired by the Town, and also by MERA's bond counsel. Councilmember Thompson suggested that the Council focus instead on bargaining as many "chips" as it could through the approval process. Someone asked Mr. Nichols whether MERA could work without the Tiburon component. He said it could not. Mr. Hansen reiterated that the Town did not have money to build its own communication system; Councilmember Thompson said that San Anselmo had considered this option as well, but had rejected it as unworkable (for cost and staffing reasons). Mr. Nichols said that even this scenario would preclude communication with other agencies. Dr. Fox questioned how many times inter-agency communications were actually utilized. Councilmember Thompson said all the time. Mayor Gram said the question was not before Council whether or not to withdraw from MERA; he said he believed withdrawal was not an option. Someone asked whether Tiburon was the only residential site for a MERA installation. Mr. Nichols said there was Forbes Hill in San Rafuel and one other, but that one of those was 300 or more feet away from the nearest home. The person asked why those sites had been built that far away from homes. Mr. Nichols said for technical reasons primarily, and that the Mt. Burdell site and many others were using existing communications sites. Mr. Lantier said that the Motorola contract said that MERA was supposed to find the sites so why had the burden shifted to the Town? An unidentified member of the public also asked whether MERA could be forced to accept a [Town] limitation or prohibition against leasing its sites for additional antennas. Mr. Nichols said it would be a three-way deal but "we'd accept it." Town Attorney Danforth said that the provision was included in the draft resolution of approval (for the Sugarloafsite). Council member Fredericks said that was precisely the reason the Town wanting to "keep Town Council Minutes # M02 July 31.2002 Page J 3 bargaining. n Mr. Nichols said that to clarifY an earlier response, the MERA system could operate without the Bolinas facility but not without Tiburon, because the Tiburon site was part of the "backbone" of the system, plus the Bolinas approval process was much farther along than Tiburon's. , .-.- -. Since there were no more auestions. Mayor Gram closed the intormal question and answer period and called for a brief recess prior to the public hearing portion. He said that each speaker would each have three minutes and that the Council would be considering the following questions: . Where we are today? . Shall we turn MERA down and take our chances in court, and would that be fair to the rest of the Town ofTiburon? . Shall we approve a temporary antenna on the Sugarloaf site? Gram also said that it would not do any good to threaten the Town (or others) with litigation. The following is a list of the speakers who addressed the Council and a summary of their remarks: I. Fleming Andriessen, 27 Venado - 9/11 does not apply; towers do not belong in residential. areas but rather commercial or open space 2. Leonard Rifkind, Attorney for "TRAUMAS" - said a significant environmental review had been done of the Mt. Tiburon site and that notice must be given to the affected parties~ also, that no significant review was done of Sugarloaf in order to develop objective criteria to compare the two sites; he said that his clients intended to challenge the decision if Sugarloaf was approved; that Council should not bow to business pressures. He argued that the Town's process was illegal. He also challenged the validity of ME!l-A 's EIR because of failure to provide notice to affected residents. Mayor Gram said that the Town had received Mr. Rifkind's letter. He asked tor Town Attorney Danforth to comment. Ms. Danforth said that the Town had complied with all due notice and hearing requirements established by law. 3. Robert Wilson, 42 Meadowhill-70% of residents were opposed to antenna in residential neighborhoods; would like to see the Council "go to bat for us" and see where it leads; also concern rc noise from HV AC and generator at Sugarloaf site. 4. Judy Binsaca, 9 Tower Point Lane - difficult decision but Council must consider the rest of its constituents in the community as well as all of the citizens of the County and vote for one of the locations for the "good of all of us." 5. Kirk Hansen, fonner Mayor, resident of Old Tiburon, suggested that it was not fair to pit people against people because we all "love this Town;" asked that Council be shown due' respect. Town Council Minutes # -02 July 31.2002 Page /4 _~~[ Del...." r =',"; .'~',,'.~"..' "~..,;_;.,, "..'-;';;.Q....=..:"'".,'., ':"; S..:.:d......-;..;..::~.", 6. Ron Richards, 5 Heathcliff, member of TRAUMAS - supported police and fire and need for MERA system but wanted "due process" in review of Sugarloaf site and asked to keep antennas out of residential areas; asked Council to '~ote their conscience" and stand up to the bully, MERA; said that litigation would buy some time and that they would work with COPAS and the Town to fight MERA; alternatively, if Council voted for Sugarloafsite, asked for full supplemental EIR. 7. Ed Messerly, 6 Place Moulin - called Staff report a '~ustification" of a decision already made and that Council's vote would detennine who they faced in court but offered support if Town voted against MERA. 8. Warner Zimmennan, 2 Place Moulin - spoke of potential dangers of 500-lb. propane tank across the street from his house; asked for protection or encasement or burying it in benn. 9. Steve Gasser, 96 Sugarloaf Drive - asked why Sugarloaf site was not feasible two years ago but now was; therefore other previously rejected sites probably would be, as well; said that ancient Romans poisoned themselves with lead (due to their ignorance of its harmful effects) and that the effects ofRF's were not known. 10. Jewell Richards, 5 Heathcliff-challenged the Council to exercise appropriate leadership in representing the residents against MERA; said that the Staff report lacked quantifiable data concerning the Sugarloaf site. II. Herb Petersen, speaking for Warren Russell, 128 Lyford Drive, read a letter regarding dangers of RF's from a radiologist's viewpoint; supported non-residential MERA site. Councilmember Slavitz said he was confused by some of the comments because the existing antennae at the Sugarloaf location emitted more RF energy to many properties than what was proposed for the MERA installation. He asked, then, why MERA was considered by some as '"unsafe?" 12. George Landau, 82 Sugarloaf - spoke against antenna in residential area based on what . was not known about the dangers of RF's but might be discovered, as with tobacco, later on; said the Town had successfully challenged the IRS in the past; suggested "abstaining" from approval ofMERA. 13. Russ Prall, 95 Mt. Tiburon Road, member of COPAS - goal to not site these antennas in residential neighborhoods; said he was part of the core group ofM!. Tiburon neighbors who had worked with the Town and that the Council had spent and lot of time and done a good job; had record of proceedings with MERA; had spent $200,000 defending their position. 14. Bob Dougherty, 108 Sugarloaf - said Planning Commission "did the right thing" in turning down Mt. Tiburon site because it was in a residential neighborhood; said Staff report used "deception" to prove that there was only one possible location in So. Marin; asked Council to reject Sugarloaf site so that both could be on "equal footing" and defended equally. 15. Eric Artman, Midden Lane - "fed up" with MERA; Town getting ''the shaft"; asked who the Town's MERA representative was; spoke of trend toward corporate accountability and need for governmental accountability. 16. Joe Murray, 102 Lyford Drive - concerned with reversal of expert's reasons for rejection Town Council Minutes # -02 July 31. 2002 Page /5 , > .'f' t ~ : of Sugar loaf site; called them "opinions based on the moment." 17. Kathy Dougherty, 108 Sugarloaf - submitted (previous and new) petitions; talked to , many residents who expressed outrage at th.e process and issue of antenna in residentia\ area; said Town had rules in place and shuuld abide by them; would work with Mt. Tiburon group and MERA to find suitable location. 18. Lynn Fox, 128 Sugarloaf - spent 400 hours on issue for her community; rights violated; health in jeopardy; said RF's were real and hurt people; believes Open Space should be looked at for site; property values affected as well. Council member Thompson said he was not an expert but pointed out the existing antennas at Sugarloaf and that the MERA replacement antenna which would be directed away from Ms. Fox's house rather than the current omni directional energy. Ms. Fox replied that the Town should probably address the existing antennas, as well. 19. Allan Letkov, 131 Sugarloaf - said science does change; MERA said cell phone energy was within "safe" levels and cell phone makers now recommend use of earpiece; said that ifa decision had to be made based on technical data Council would have to select Mt. Tiburon site; said it was not "usual or customary" to pay late fees if you [Motorola] didn't have to do anything as a result of the lateness; said Council could tight these issues. 20. Olivia Decker, former owner of 140 Sugarloaf, real estate expert, said that antenna installation would affect property values. 21. Mahalia Pugatch, 42 Mcadowhill Drive - identified reports on RF dangers; said calculations used by scientists did not measure heat level changes in body; recommended video called "Public Exposure;" challenged "drop-oft" calculations used by Pellegrini; said brain tumors incidences up 300% worldwide. Councilmember Fredericks said that the FCC website contained calculations regarding "drop- offs" and that it was important to use science. 22. Libby Kelly, Committee on Wireless Technology Impacts - issue being addressed internationally more than in US; independent and military scientists challenge FCC guidelines which do not take into account digital technology; asked Board of Supervisors for monitoring of MER A sites but declined to do so. 23. Tyler Phillips, 8 Audrey Court, on Angel Island Association Board of Directors - said the Board was approached by Town and was not opposed to idea; stopped consideration when heard that MERA had withdrawn; believes it is still only right location; Council should go into "holding pattern." 24. Carolyn Friedman, 108 Lyford Drive, President of Marinero Owner's Association - disappointed that neighborhood sites were not immediately rejected; suggested Council should resign; threatened Council recall petition. 25. Brian lontier, 141 Sugar[oaf, former Mayor in New Jersey, quoted St. Ignatius of Loyola, "in God's eyes your words have only the value of your actions;" said he was troubled by July 19 letter from Alex to MMWD. Town Council Minutes # -02 Page 16 July 3/. 2002 ,il.; . ~. ,. ~ >:":_- - 'i",~.'~' ~ . ,-.',-." ,~. 26. Harlan Kleiman, said there was consensus against placement of antenna in residential area; suggested that Council take referendum of entire community; challenged Council to lead. Mayor Gram said that the Council believed that the residents of Mt. Tiburon faced more risk from an antenna sited in their neighborhood than the Sugarloafresidents. He said that if the Town filed a suit against MERA, it would probably lose and have no further recourse. Mavor Gram indicated that he was prepared to vote no on the SUllarloafsite if the neil!hbors at Mt Tiburon and Sugarloaf al!reed that was what they wanted. He asked if the Mt. Tiburon residents wanted to comment. Mary Ellen Wetlesen, 101 Mt. Tiburon Road, provided some background about the struggle of the neighbors in the vicinity of 99-1/2 Mt. Tiburon site. She said they wanled it out of a residential neighborhood and had even looked at a two-site (Southern Marin) solution as an alternative. She said this would have cost $750,000 and that a meeting was held in which the residents of Sugarloaf and Place Moulin Were invited, but that but only one person wanted to "pony up." She said the idea was rejected by MERA in any event. Ms. Wetlesen said the decision, then, came down to one site. She said that the sites were not equal, especially because there were no current antenna installations on the Mt. Tiburon site. Russ Pratt, 95 Mt. Tiburon Road, said he wished the Sugarloaf neighbors had been ''with us two years ago," but that if the Council voted against that location now, they would have lost the ability to impose any conditions on the site. He said that only four or five houses were affected by the Sugarloaffacility, rather than the whole neighborhood by the Mt. Tiburon lacility. Diane Zack, 99 Mt. Tiburon, said they had worked so long for so hard and had not had a good experience dealing with MERA. She said they had prevailed at the Planning Commission level and con finned that the radiation from the antenna would go directly into their children's bedroom, if constructed. Howard Zack, said he felt the situation had boiled down to a "cock fight" between two neighborhoods, but said that they had "lived your [Sugarloafs] pain for the last two and a half years." Supervisor Steven Kinsey, MERA Board President, was asked by Mayor Gram if he wanted to address some of the questions from the audience. Kirk Hansen asked Mr. Kinsey how he could "justifY" MERA's insensitivity towards the Tiburon residents. Mr. Kinsey replied that MERA understood the concerns of the neighbors but that there was an overriding "need" of the MERA system. He said that other options had been explored, the Mt. Tiburon site had been certified, and that it was MERA'sjob to make the system Town Council Minutes # -02 July 3 J. 1001 Page /7 . .' .' t' .;., [' 1. ' .'. ...l. ," r ".,/ .., " .\<~: ~ " - '" ,----.-~:_1 .....-;.,' . .~..., \. -.; ,. Neil Boorstyn suggested that the Council vote against the Sugarloaf site, and join with the neighbors to fight MERA. He said that as a litigator for 40 years, he never predicted the outcome. Mr. Lantier asked whether the location of an antenna on private (versus public) property would trigger an EIR. Mayor Gram said yes. Mayor Gram closed the public hearing. Councilmember Thompson spoke first. He said he did not see the two sites as equal; that the coverage, aesthetics, and less impact ofRF's on surrounding residences ';'ade Sugarloafthe first choice. He said that a "no" vote by the Council for this location would mean a MERA antenna in a residential area forever, and that a temporary solution could be found by approving Sugarloaf now and finding a permanent solution outside of a residential neighborhood. Councilmember Fredericks also explained why a "no" vote (against both sites) would not work. She said the Council would have no authority over the site; that it would lose if litigation was pursued; that power to negotiate with MERA would be lost; that emissions already existed in the Sugarloaf location; and that she had an e-mail from Director Nichols stating that Sugar/oaf was a technically superior location. She said that the Town did not yet have a commitment from MERA regarding approval of that location but it did have the power (to negotiate). Councilmember Berger. former Planning Commissioner, said "we've turned down these things before." He said that the Council and COPAS had worked hard and had challenged the technical and legal limits with regard to the MERA application. He said the people comprising TRAUMAS had experience in finding solutions to difficult problems, and he agreed that more time to study alternate locations was needed. However, Berger said it would be "unconscionable" to hold the rest of Southern Marin "hostage" by holding up the MERA system, and that it was the duty of the Council to ask for a temporary facility on one of the two sites. Mr. Berger said that in comparing the two sites, his thinking was influenced by using visual aids to compare the RF emissions. He said that Sugarloafwas clearly the better site for the temporary location on that basis. Also, he said that the prominence of the antennas on the Mt. Tiburon site, where all the homes surrounding the site would have to look directly at the installation, versus just one home on Sugarloaf, was unacceptable. Vice Mayor Slavitz expressed his frustration at the level of Town Council and Staff"bashing" at the hearing. He agreed that the process had been "bad from the get go" but said that the other options had been evaluated. Slavitz said that the Mt. Tiburon residents would clearly receive more radiation and that aesthetically the Sugarloaf site offered better screening. Slavitz said he like the "temporary" idea but asked what it would cost to find a permanent solution. He said that MERA should listen and follow the Town's lead. Town Council Minutes # -02 July 31, 2002 Page /9 ",.":1""- " ,,'. Slavitz said that the process was not how he envisioned it two years ago while he was on the Planning Commission, but said that the Sugarloaf site was superior in his opinion. . Mayor Gram agreed with the audience that the antenna facility should not be in either location, but he disagreed that they were "equal" sitcs. He said that thc neighbors on Mt. Tiburon were at "extreme risk" and that the Town had no ability to negotiate conditions at that site. The Mayor said that he would either work with the community to find another location (on Angel Island) or get recalled; the decision was theirs. Finally, Mayor Gram said the "tie breaker" for him was the existence of other antennas on the Sugarloafsite, and that approval of that site for the MERA antenna would be a way to "get rid of them." He said a lawsuit would only delay this process and that the community could find another site "if MERA will let us." However, he said it would have to be a community effort to raise the money because the Town did not have it. ' In its discussion of conditions of approval, Town Attorney Danforth agreed to add language to the resolution rellecting the Council's intention to find another, non-residential site to replace the Sugarloaffacility; Councilmember Berger asked for more protection of the propane tank and Mayor Gram asked that it be moved farther away from the neighbor acroSs the street's house; Jewell Richards asked for conditions (a time limit) on MERA to move the site and Council agreed to add language concerning a six-month time limit once a new site was secured. Other changes were to Conditions # 2 (numbers reversed); Condition # 3 (testing will take place at full power); #4 (no additional commercial facilities - further amended to drop the word "commercial"); #8 generator needs a muffler; # 13 (no change). Council also ,?ised the idea of indemnitication of lawsuits if challenged. MOTION: To adopt the resolution accepting the findings ofthc Staff Report regarding the placement of the MERA antenna at 145 Sugarloaf; with modified and expanded conditions of approval. Slavitz, seconded by Thompson A YES: Council member Berger, Fredericks, Thompson, Vice Mayor Slavitz, Mayor Gram Moved: Vote: ADJOURNMENT There being no further business before the Town Council of the Town ofTiburon, Mayor Gram adjourned the meeting at I :22 a.m. on Thursday, August I, 2002, to closed session. CLOSED SESSION Conference with Legal Counsel - Anticipated Litigation Town Council Minutes # -02 July 31. 2002 Page 20 , '. ,.,..",' ......-,. . ~.'" , -~~. :':::"-4- ".~._ '. ....,.,.. ~...., . ,.' ' """ ,.'.' " ":-;.:,,,,;.,. " . .,. ~." , ,;~' ,.. ,.,~ ., , , " l '.. :' ,: ';', " . . (Section 54956.9(c)) Initiation of Litigation (One Case) . '. : ',' ANNOUNCEMENT OF ACTION TAKEN IN CLOSED SESSION. IF ANY .... AD,JOURNMENT .. ' ....1'. ., ~' .' '" .-.\".:;' '. After announcing the no action had been taken. Mayor Gram ~djoumed the special meeti~~ of the Tiburon Town'Council'atl :45 a.m.---;---~-; sine die. :," . . ' ','t',- .., "'. J .' , . . , TOM GRAM, MAYOR , .,. ',. '. . ". A TIEST: DIANE CRANE (ACOPI, TOWN CLERK ,. , ,~. ..,. Town Council Minutes # -02 July 3/. 2002 . Page 2/ ,.,' J,'. ,l~ :'" . ~ '..' ., . i ",J "/' ,. ~ ~ ,- RESOLUTION NO. 51-2002 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON APPROVING THE SOUTHERN MARIN EMERGENCY RADIO FACILITY AT 145 SUGARLOAF DRIVE ASSESSOR PARCEL NO. 58-351-31 WHEREAS, the Town Council of the Town of Tiburon does resolve as follows: Section.L Findings. A. . The Town Council has rcviewed and considered a project (the "Southern Marin Emergency Radio Facility") that would entail the construction and operation of a wircless communications facility on property located at 145 Sugarloaf Drive. Thc property is currently owned by the Marin Municipal Water District (MMWD). The wireless communications facility would be part ofa network ofwircless communications facilities operated by the Marin Emergency Radio Authority (MERA). MERA prepared an environmental impact report for the wireless communications network, which MERA certified in February of2000. As designed, the network requires a wireless communications facility in Southern Marin. The otTicial record for this project is hereby incorporated and madc part of this resolution. The record includes, without limitation, the MERA Initial Study and EIR, all pertinent Staff Reports submitted to the Council in connection with the wireless communications network, minutes, application materials, and all comments and materials received at or before the public hearing on this project and on Town of Tiburon Ordinance No. 469 N.S. and all materials in the record of the Town's consideration ofa conditional use permit for a MERA facility at 99 Y, Mt. Tiburon Road. The record also includes, without limitation, all reports, comments and matcrials for thc April 17, 2002, and June 19,2002 meetings described below, and the minutes thereof. B. On April 17, 2002, the Town Council held a public meeting to discuss potential sites for the Southern Marin wireless communications facility. The Town sent notices of this meeting to all properties located within approximatcly 1000 feet of the three potential sites located within the Town: 99 Y, Mt. Tiburon Road, 145 SugarloafDrive and a third location sited on open space located near Gilmartin Drive. The Council heard reports on these sites and on a fourth site located on Wolfback Ridge in the City of Sausalito. The Council also heard considerable public testimony at this meeting, most of which focused on the Mt. Tiburon and Wolfback Ridge sites. The Council directed staff to pursue the Wolfback Ridge site as thc most appropriate alternative. The Council indicated that Sugarloafwas a potential "back-up" alternative. Unfortunatcly, MERA determined that TIBURON TOWN COUNCil. RESOl.lJTlON NO. 51-2002 JULY 31.2002 S;\adanforth\Resos\MERA Sugarloafresolution.doc the Wolfback Ridge site was not a feasible location. The Town's independent engineer confirmed this 'conclusion. C. In May of2002, MERA condemned the Mt. Tiburon Road site, asserting that by acquiring ownership, it no longer needed Town approval to construct a wircless communications facility on that site. MERA advised Town officials that it would begin construction on the Mt. Tiburon site unless the Town could promptly deliver an alternative site. On June 19,2002, the Town Council held a duly noticed public hearing on a proposed urgency ordinance, pursuant to Sections 36934 and 36937 of the California Government Code, establishing streamlined procedures for the consideration of this project at the Sugarloaf site. After taking public testimony on both the urgency ordinance and the merits of this project, thc Council adopted Ordinance No. 469 N.S., establishing streamlined review procedures for the project by vesting discretionary review authority over the project with the Town Council, exempting the project from all provisions of the Tiburon Zoning Ordinance, and exempting the project from the Tiburon Interim Standards and Criteria for Wireless Communications Facilities, except to the extent that the project is in keeping with the general intent of the Interim Standards. D. The Town Council held a duly-noticed public hearing on the project on July 31, 2002, and heard and considered testimony from interested persons. The Council also received oral and written communication regarding the project in the period bctween thc mcctings of June 19, and July 31,2002. E. The Town Council has found, based upon thc application materials and analysis provided in the July 31,2002 Staff Report and other materials in thc rccord, that the project as conditioncd is, on balance, consistcnt with the applicable polieies of the Tiburon General Plan. Specifically, I. The project, as conditioned, is consistent with Policy LU-9 of the Land Use Element of the Tiburon General Plan, which states that public and quasi-public districts, such as the Governmental Facilities designation for the subject property, "may typically allow parks, educational facilities, governmental.and quasi-public buildings or facilities; utility facilities and similar facilities owned and operated by public/non-profit agencies." The proposed wireless communications facility would be a communications facility operated by a public agency. 2. The project, as conditioned, is consistent with Goal LU-B of the Land Use Element ofthe Tiburon General Plan, which directs the Town "to ensure that all land uses, by type, amount, design, and arrangement, serve to protect and enhance the low-density residential and village character and image of the community." The existing water storage and T1AURON TOWN COUNClL RESOLUTION NO. 51-2002 JULY 31. 2002 2 S :\adanrorth\Rcsos\MERA Sugarloaf.rcsolutioll.doc '. " , ' transmission facility on the subject property is typical of public facilities that are often accepted as necessary uscs within residential neighborhoods. Several public safety antennas are currently mounted on the water tank on this property, and nearly all of these antennas would be removed after the installation of the proposed facility. The installation of the subjcct wireless communications facility at this location would thereforc not significantly alter the usage of this site in a manncr that would be inconsistent with the existing character of thc surrounding neighborhood, while the use of this public communications facility serves to protect the same community character. F. The Town Council has found, based upon the application materials and analysis provided in the July 31, 2002 Staff Report, that the project, as conditioned, is consistent with the general intent of the Town of Tiburon Interim Standards and Criteria for Wireless Communications Facilities. Specifically, I. Section IV.A. of the Town's Interim Standards and Criteria states that "location preference for wireless communications facilities should be givcn to publicly used structures, co-location and sharcd-location sites, and industrial or commercial sites. Applications for new wireless communications facilities should avoid sites located within or near residential areas... unlcss the applications include . information sufticient to demonstrate: the location and type of preferred sites which exist within the proposed or technically feasible coverage area; that good faith efforts and measures were taken by the carrier to secure the preferred location sitcs; spccific rcasons why such efforts and measures werc unsuccessful; and spccific rcasons why thc location of the proposcd facility site is essential to meet the service demands of the carrier." 2. Thc proposcd facility would be installed on the site of a publicly uscd structure, owned and operatcd by the Marin Municipal Water District. Singlc-family residential neighborhoods surround the site on Sugarloaf Drivc, Place Moulin and Mount Tiburon Road. Thc Town, and MERA, have prcviously evaluated a number of other sites for the Southern Marin Emcrgcncy Radio Facility, including the watcr tank at 99\'2 Mt. Tiburon Road, Angcllsland, Woltback Ridgc above Sausalito, and several locations on open space along thc Tiburon Ridgcline. Thcsc altcrnativc sitcs werc rcjected by different agencies, including the Tiburon Planning Commission, the Statc Departmcnt of Parks & Rccreation and MERA, for various reasons, which included proximity to an adjacent residcnce, refusal to use State Park land for such a facility, and the inability offacilities at some locations to provide adequate radio coverage to portions of Tiburon and Sausalito. TIBURON TOWN COUNCIL RESOLUTION NO. 51-2002 JULY 31. 2002 3 s:\adanrorth\Resos\MERA Sugarloafrcsolution.doc ',. ,. ,'" r- . .t, ~ '. ~ .' , "'. Based on the foregoing, staff concludes that a residential site is essential to complete the emergency radio network. 3. Section IV.B. of the Town's Interim Standards and Criteria states that "wircless communications facilities shall be attached or sited adjacent to existing structures... Appropriate types of structures may include, but not be limited to: buildings, water tanks..." The location of the proposed facility adjacent to an e~isting water tank would be compatible with this requirement. 4. Section IV.C. of the Town's Interim Standards and Criteria states that "Monopoles for wireless communications facilities should not be located in residential areas unless technical evidence demonstrates to the satisfaction of the Town that no other alternative facility site or type of antennas support structure is feasible and/or if the use of a monopole for the proposed facility by itself or in combination with other existing, approved, and proposed facilities will avoid or minimize adverse effects relatcd to land use compatibility, visual resourccs, and public safety." As dcscribed previously, other sites at 99\1, Mt. Tiburon Road, on Angel Island, Wollback Ridge and open space areas along the Tiburon Ridgeline were evaluated and rejected. The subject location was chosen as the preferred site for its direct , sight lines to other portions of the MERA system require shorter antenna heights, the terrain and vegetation around the water tank provide better visual screening of the facility, and the radio emissions arc substantially lower than at the Mount Tiburon site. 5. The Interim Standards and Criteria state that WCF's shall not generate electromagnetic frequency (EMF) radiation in excess of the human exposure standards adopted by the FCC. An EMF report has been prepared for the subject facility which predicts the worst case levels of radiation generated by the facility and how these levels compare to the human exposurc standards. The results of the health study indicate that thc subject facility would comply with the required FCC standards, with emissions substantially below FCC standards. Warning signs would be posted near each transmitting antenna which would be visible to workers intending to perform work on the site. 6. The Interim Standards and Criteria state that all WCF structures and equipment "shall be sited, designed, and screened to blend with the surrounding natural or built environment in order to reduce visual impacts to the maximum extent feasible." All equipment would be painted to blend in with the surrounding environment. As set forth in the Staff Report/Addendum to ElR dated July 31, 2002, the facility would have little visual impact to people or property in the RESOLUTION NO, 51-2002 4 llBURON TOWN COUNCIL JULY 31, 2002 S :\adanforth\Resos\M E RA S ugarlua[resol ution. doc immediate vicinity or to the community at large. The antenna tower would be shielded from view by mature trees. 7. Section V. of the Town's Interim Standards and Criteria states that "shared location of wireless communications facilities in residential areas is to be avoided unless absolutely necessary or otherwise essential for the health, safety and welfare of the Town." The Town's approval will prohibit co-location of private communications carriers and ensure that the facility is for the exclusive use of the Southern Marin Emergency Radio Facility. A prohibition against commercial co- location on the site will also be included within the lease for the property to the extent feasible under the law. 8. The subject wireless communications facility would comply with standards requiring minimized on-site lighting, adequate road access, and minimal disruption of existing vegetation. Noise and traffic impacts would be minimized for nearby uses by conditions of approval and by the minimal traffic necessary to maintain the facility. G. The Town Council finds that, based on the Federal Communications Commission's OET , Bulletin 56, the project would not be injurious to public health, safety or general welfarc. 'I I H. The Town Council tinds that, as stated in the findings for Ordinance No. 469 N.S., MERA's wireless communications network is essential for the safety of public safety ! personnel and Marin County residents, including residents of the Town. The current radio systems should be replaced as soon as possible because the risk of missing or blocked radio traffic, or poor interagency coordination and communication puts the public and police officers, fire fighters, paramedics and other emergency response personnel at risk. Timely completion of the network requires a site within the Town of Tiburon. Thc only two feasible sites are 99 Y, Mt. Tiburon Road and 145 Sugarloaf Drivc. For the reasons stated in the Staff Report, the project would have considerably fewer impacts at the Sugarloaf Drive site than it would at 99 12 Mt. Tiburon Road. I.. The Town Council finds that an Environmental Impact Report (EIR), certified on February 24, 2000, studied the Sugarloaf site as an "alternative" to the project and rejected that alternative for'several reasons as set forth in the EIR. The Town Council finds that the reasons for the rejection as set forth in the EIR are refuted by the analysis contained in the Addendum to Environmental Impact Report, dated July 31, 2002, prepared by the Town ofTiburon. J. The Town Council finds that a subsequent or supplemental EIR is not appropriate for this project, based on the following: T1BURON TOWN COUNCIL RESOI.UTION NO. 51.2002 JUL YJ 1.2002 5 S:\adanforth\Resos\MERA Sugarloa[resolution.doc I. There has becn no substantial change to MERA's wirelcss network that would rcquirc major revisions of the environmental impact report. Adoption of the alternative site at 145 Sugarloaf Drive does not require major revisions to the MERA EIR because the change does not involvc ncw significant environmental effects, not discussed in thc MERA EIR, or a substantial increase in the severity of previously identified significant effects. The evidence in the record clearly establishes that the facility's impacts will be considerably reduced at the Sugarloaf site. 2. The evidence in the record does not indicate that, since the certification of the MERA EIR, the circumstances under which the project is being undertaken havc changed to any substantial degree, so as to require major revisions in the environmental impact report. The record does not contain any substantial evidence of new significant cnvironmcntal effccts, not discussed in the MERA EIR, or a substantial increase in the scverity of previously identified significant effects. 3. The evidcnce in the record does not indicate that therc is any significant new information, within thc mcaning ofthc CEQA Guidelines, which was not known and could not have been known at the time the MERA certified its EIR as complcte. K. Tbe Town Council further finds, bascd upon the above-referenced Addendum and in accordance with CEQA Guidelines sections 15162(b) and 15164, that the project, as conditioned, would have less than signiticant impacts on the environment, would have lesser ovcrall environmental impact than the MERA-approved Mount Tiburon facility and that no further environmental rcview is required beyond that contained in thc Addendum. L. The record demonstrates that the emergcncy radio communications systems throughout the County are failing. MERA's cmergency communications network is nccessary for the Town of Tiburon and other MERA members to maintain cmcrgcncy rcsponse service. Accordingly, the project is exempt from CEQA under S l5269(b), I 5269(c) and 15303 (Class C) ofthc CEQA Guidelines. Nevertheless, the Council has studied the environmental and other impacts of the project to ensurc completion of the emergency communications network with the least possible impact on Tiburon residents. Section 2. Adoption of Addendum. Adoption of Sugarloaf Alternative. and Approval of Proiect. NOW, THEREFORE, BE IT RESOLVED that the Town Council ofthc Town ofTiburon does hereby adopt the Addendum to Environmcntal Impact Rcport, dated July 31, 2002, does TIBURON TOWN COUNCIL RESOLUTION NO. 51-2002 JULY 31. 2002 6 S :\adantbrth\Rcsos\M ERA Sugarloaf.rcsolulion.doc . ',.. hereby adopt the Sugarloaf alternative, and does hereby approve the construction, operation, and maintenance of the Southcrn Marin Emergency Radio Facility at 145SugarloafDrive, subject to the following conditions: 1. The project shall be in substantial conformance with the drawings dated July 26, 2002, prepared by Tower Structures, 4 sheets, except that the monopole shall be relocated (perpendicular to Place Moulin) to a position in the immediate vicinity of the existing fence along Place Moulin. Final location of the monopole is subject to MMWD approval based upon the final design of its plan to add and replace water tanks on the site. Minor deviations (up to ten feet horizontally along the fence and two feet vertically) in the location and/or height of facilities is permitted if necessary for the proper functioning of the facility, provided that such deviations do not negatively and substantially increase the visibility of the facility nor substantially increase RF emissions of the facility as measured at FCC- required locations. Iflower heights are determined to be possible while still ensuring proper functioning, then the facility shall be lowcrcd or otherwise reduced in scale or bulk. The facility includes: . Installation of an approximately 13-inch diameter, 48-foot high monopole in the northea~tern portion of the site. Attached to this monopole would be two (2) 14 inch high by 45-inch long by seven (7) inch wide panel antennas mounted on a cross-bar, a four (4) foot diameter microwave dish and a whip antenna extending ten (10) feet above the top of the monopole. . Installation of an approximately 200 square foot (10' by 20') prefabricated equipment shed, an emergency backup generator, and a supporting 499 gallon propane tank on the northwcstcm portion of the site. . Excavation into the natural ridgc on the northwest side of the site and construction of a retaining wall, varying in height from five feet to approximately ten feet. . Trenching across the site to connect the monopole via underground conduit to the ancillary buildings and facilities. 2. The facility's power density and radio cmissions shall remain within ten percent of the projections in the RF Exposure Analysis prepared by Grecn Drake Engineering for the project (July 25, 2002). The Town will retain, at MERA's expense, an independent firm, certified to perform RF exposure and power density analyses. This report must confirm the findings of the RF Exposure Analysis regarding anticipated emissions (within ten pcrccnt) prior to installation of the facility. 3. As soon as the facility becomes operational, the Town will test the facility at full powcr to cnsurc that emissions substantially comply with the projections in the RF Exposure Analysis. The Town will conduct annual testing of the facility after it TIBURON TOWN COUNCIL RESOLUTION NO. 51-2002 JULY 3 1.2002 7 S:\adanforth\Resos\MERA Sugarloafresolution.doc becomes operational to ensure that it continues to operate within FCC limits for emissions. The Town shall conduct further tests upon any modifications to the equipment at the facility that could increase emissions. All of the above tests shall be at MERA's expense. 4. The Town shall enter into an agreement with MERA and MMWD that would guarantee that no additional communications facilities will be located on the property (i.e., the site will not become an antenna farm). 5. A continuous 6 foot fence shall be constructed around the water tank lot, both for security and public safety reasons. 6. MERA will install shielding of the propane tank or other safety measures (including, without limitation, relocating the tank) as approved by the Town Engineer to protect nearby persons and property from harm in the event of a propane explosion. 7. To the extent practicable, the operator of the facility shall reduce height and mass and improve aesthetics of the facility as improvements in technology allow, provided that RF exposure levels do not increase at surrounding properties. 8. The monopole, antennas, equipment shed, and other components of the facility shall be finished in appropriate colors to blend in with thc colors and materials of the adjacent hillside. Said colors and materials shall be approved by the Tiburon Planning Division prior to construction of the facility. The Town may require the monopole/antenna assembly to have an exterior treatment that will resemble, as closely as possible, a living tree similar in appearance to those surrounding the monopole. 9. Noise levels shall, at a minimum, comply with the Town of Tiburon noise compatibility guidelines as set forth in the General Plan Noise Element. In addition, to the extent feasible, decibel levels significantly below these levels shall be achieved. The equipment shed shall be designed to have ventilation or other characteristics that will servc to reduce the need for air conditioning. T~e air conditioning unit on the equipment shed shall use the quietest of available machines as of this approval; shall be placed on the equipment shed in thc location where the least noise shall be heard by neighboring homes; and shall employ solid fences, baffles, covers, shields or other noise reduction packages or sound-reducing devices to further reduce noise heard at adjacent homes, particularly the residences at I Place Moulin and 2 Place Moulin. The back-up generator shall be enclosed with a sound-attenuating enclosure and shall also TIRURON TOWN COUNCIL RESOLUTION NO. 51-2002 JUI.Y 31. 2002 8 S:\adanforth\Resos\MERA Sugarloaf.rcsolution,doc employ solid fences, baffles, covers, shields or other passive sound-reducing devices if necessary to minimize noise during its limited operations. 10. The backup generator is allowed to be tested once a week for a IS-minute interval during a mid-weck morning no earlier than 10:00 AM. Outside of this testing period, it is authorized to operate only in the event of a power outage and in that case only for the minimum time necessary until regular power is restored. 11. Vehicles accessing the site for testing, monitoring or other MERA purposes shall to the extent feasible park inside the gatcs to reduce traffic congestion on the narrow streets in the vicinity. 12. There shall be no exterior lighting of the MERA facility. 13. Warning signs in conformance with FCC adopted guidelines shall be posted on or near the antennas to inform workers of potential hazards from close proximity. 14. It is acknowledged that some trce thinning and/or removal oftrees may be required for propcr opcration ofthc facility. Building on the Arboricultural Report dated July 29, 2002, attached as Exhibit "A" hereto, a Tree Protection and Landscape Screening Enhancement Plan shall therefore be prepared for review and approval by the Town ofTiburon Public Works Department prior to installation of the facility. This plan shall ensure that the redwood trces on the site shall be preserved to the maximum extent feasible during site preparation, installation, and operation. The Plan shall be implemented as soon as practical to ensure maximum survivability of the trees. This Plan shall provide improved screening of the facility from oft~site, primarily but not exclusively from the properties located at 1 Place Moulin and 141 Sugarloaf Drive. It shall, at a minimum, contain provisions for replacement of lost, dead or dying trees with the intent that landscape screening is a critical ongoing element to the successful co- existence of this facility in a residential area. Construction mitigation measures contained within Exhibit "A" shall be incorporated. 15. All cxisting antennas on the site, excepting one, shall be removed upon successful installation of the facility. 16. Permittee shall operate and maintain the site to industry standards. This condition is in lieu of a standard performance agreement and seeurity deposit with the Town as set forth in the Interim Standards & Criteria. 17. This permit shall expire and become null and void within one year of final approval unless vested. This timc limit shall be tolled by lawsuits or moratoria. TIBURON TOWN COUNCIL RESOLUTION NO. 51-2002 JULY J 1.2002 9 S:\adanforth\Rcsos\MERA Sugarloafrcsolution.doc " IS. The Agreement referenced in Condition 4 shall provide that if the Town of Tiburon identifies a feasible, non-residential alternative site for the facilities, secures the necessary permits therefore and provides the financing for . construction of the alternative facility, MERA will, once the alternative site is operationaI and MERA has obtained any necessary FCC licenses, transfer emergency communications operations to the alternative site and cease operations at the temporary site within six months. MERA will be permitted to re-locate equipment and structures at the temporary site to another location. The agreement will also require MERA to cooperate and assist in the search for an alternative, non-residential site and assist in the permitting process for that site and to promptly take any measures required to obtain FCC licenses for the site. ,. PASSED AND ADOPTED at a special meeting ofthe Tiburon Town Council on August S, 2002, by the following vote: ~ A YES: ' COlJf)CILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: TOM GRAM, MAYOR TOWN OF TIBURON ATTEST: DIANE CRANE IACOPI, TOWN CLERK shared\adanforth\MERA.resolution.doc TIBURON TOWN COUNCIL RESOLUTION NO, 51-2002 JUl.Y JI. 2002 10 S :\adanforth\Resos\M ERA Sugarloaf.resolution.doc .' ;:'t , ~ -- ()~ T0 '- 1fiiV.~ Town of Tiburon STAFF RE'PORT AGENDA ITEM ~ . . ... . . ... . .. . .. . . . . . .. . . . . . . . . . . . .. . . .. . .. . . . TO: MAYOR AND MEMBERS OF THE TOWN COUNCIL FROM: ANN DANFORTH, TOWN ATTORNEY SUBJECT: MERA FACILITY AT 145 SUGARLOAF DRIVE ADOPTION OF JULY 31,2002 MINUTES AND RESOLUTION MEETING DATE: AUGUST 8,2002 REVIEWED BY: . . . . . . . . . . . . . . . . . . . .. ........... BACKGROUND On July 31, 2002, the Town Council held a public hearing on a proposal to construct a wireless communications facility at 145 Sugarloaf Drive ("Project"). The Project would be a critical component of the Marin Emergency Radio Authority's communications network for public safety personnel. After a six and one-half hour public hearing, with lengthy public comment, th~ Council adopted a resolution making findings, adopting the staff report as an addendum to the EIR and approving the Project. On August 1, 2002, a group of neighborhood opponents to the project, organized under the name Tiburon Residents against Unfair MERA Antenna Siting ("TRAUMAS") filed a lawsuit to block the project. Both parties have agreed to an expedited hearing schedule to resolve the merits. To meet this deadline, Len Rifkind, counsel for the petitioners, has requested that we deliver the record of the project approval by Friday, August 9, 2002. To meet that deadline, we have noticed this special meeting, for the Council to approve the July 31st minutes and the final form of the Council resolution approving the project. ANALYSIS 1. Council Minutes. The Mayor has asked that I address the Council's legal duties with respect to minutes for its public meetings. There are few legal requirements. Section 36814 of the California Government Code provides the following: Journal of proceedinqs The Council shall cause the clerk to keep a correct record of its proceedings. At the request of a member, the city clerk shall August 7,2002 1 of 3 ( . Town of Tiburon STAFF REPORT AGENDA ITEM . ........ . ... . .. . ... . ... ............ . . . . . .. .. . enter the ayes and noes in the journal. There is no legal requirement that the minutes contain a complete, verbatim, transcript of the public meeting. The Council's may lawfully adopt the minutes if a majority of the Council believes that they are a fair and accurate description of the meeting. The Council is not required to accommodate requests to modify the draft minutes unless the Council believes that changes are necessary to fairly describe the proceedings. The Town has a tape recording of the July 31, 2002, meeting. If any person wishes a more complete record of the proceedings, they may obtain a copy of the tape from the Town Clerk. We are under considerable time pressure to complete the administrative record for the TRAUMAS litigation, which must include the approved minutes. According, we recommend that any changes the Council makes to the minutes be limited to corrections of misstatements or significant omissions. 2. Resolution ApprovinQ the Proiect. Staff presented the Council with a draft resolution at the July 31st meeting. The Council directed a number of changes to the resolution before adopting it. Upon circulating the revised resolution, the Mayor and staff identified several errors and ambiguities. Accordingly, staff believes it proper to return the revised resolution to the Council for final approval. I summarize the changes below: Section 1. Findina C: We have clarified the need for expeditious resolution of the siting problem, as set forth in the June 19, 2002 staff report. We have also clarified the statutory basis for the urgency ordinance as Sections 36934 and 36937 of the California Government Code. Several comments at the July 31st meeting indicate confusion regarding the statutory basis, due to a clerical error in Section 7 of the ordinance (a non-substantive section) mis-citing the statutory authority. Section 1. Findina F.2: We have added "and Sausalito" to the end of this section, to more accurately reflect the problems with the rejected sites. Section 1, Findina F.5: We have amended this section to note that (a) the EMF report predicts the worst case emissions; and (b) the facility emissions will be substantially below FCC standards. H:\ManagerlMERA\145 sugar/oaf SR. Minutes & Revised Reso.doc August 7. 2002 2 of 4 .. -~ , Town of Tiburon , STAFF REPORT AGENDA ITEM .. ........ . .. . .. . . .. . . . . . . . .. . .. ..... ... . .. . .. Section 1. Findinq F.6: We have added a sentence to the end of the finding noting that the antenna would be partially shielded from view by mature trees. Section 1. Findinq F.6: We have deleted the word "commercial" from the last sentence, extending the ban on co-location as directed by Council. Section 2. Condition 5: We have clarified that the 6-foot fence will be located , around the water tank lot (rather than merely the MERA facility). Section 2. Condition 6: As directed at the meeting, we have added the requirement for safety shielding and/or relocation of the propane tank, to reduce the likelihood of an accident and protect persons and property from harm in the event of an explosion. Section 2, Condition 9: We have clarified that the air conditioning unit shall be placed on the equipment shed in the location where the least noise shall be heard from neighboring homes, and that a high quality of muffler with best practices sOl;lnd attenuation be provided for the generator. Section 2. Condition 11: We have clarified that the'vehicle restriction applies only to MERA-related traffic. Section 2. Condition 11: We have clarified that the lighting restriction applies only to the MERA facility. Section 2. Condition 14: We have clarified this condition to apply to the site's redwood trees. We have also provided that the subject Tree Protection and landscape Screening Enhancement Plan shall be implemented as soon as practicable to ensure maximum survivability of the trees. Section 2. Condition 15: We have corrected this condition to state that only one antenna shall remain after the MERA facility is complete. Section 2. Condition 18: At the July 31st meeting, Council directed staff to add this condition, requiring MERA to relocate the antenna facility if the Town located a new, non-residential site and obtained permits and financing. We have clarified that MERA would not literally move the Sugarloaf antenna but would construct a new facility at the alternate site, then de-activate and remove the Sugarloaf facility. We have also clarified that MERA would assist in locating the site and obtaining permits and would be responsible for any necessary FCC licenses. H:\ManagerlMERA\145 sugar/oaf SR, Minutes & Revised Reso,doc August 7, 2002 3 of 4 -" ,. ..,.......,......" "-'" "'.....-..,. .....-~:.;.--'.. ,'.:;',.,-' '.~"--.y. ;~., ", -.>.~: ',"" -.' ,,' , Town of Tiburon STAFF REPORT AGENDA ITEM ... ........ ...... ..... ...."......... .... .... .... . RECOMMENDATION " We recommend that the Council take public testimony and then proceed to: 1. Adopt the minutes of the July 31, 2002 meeting; and 2. Adopt the corrected Resolution adopting the EIR Addendum and approving the project with conditions. EXHIBITS 1. Draft Minutes 2. Draft Resolution H:lManagertMERA\145 sugar/oef SR, Minutes & Revised Reso,doc ,:' August 7, 2002 4 of 4 " , RESOLUTION NO. A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON APPROVING THE SOUTHERN MARIN EMERGENCY RADIO FACILITY AT 145 SUGARLOAF DRIVE ASSESSOR PARCEL NO. 58-351-31 WHEREAS, the Town Council of the Town of Tiburon does resolve as follows: Section I. Findings. A. The Town Council has reviewed and considered a project (the "Southern Marin Emergency Radio Facility") that would entail the construction and operation of a wireless communications facility on property located at 145 Sugarloaf Drive. The property is currently owned by the Marin Municipal Water District (MMWD) The wireless communications facility would be part of a network of wireless communications facilities operated by the Marin Emergency Radio Authority (MERA). MERA prepared an environmental impact report for the wireless communications network, which MERA certified in February of2000 As designed, the network requires a wireless communications facility in Southern Marin. Th'e official record for this project is hereby incorporated and made part of this resolution The record ineludes, without limitation, the MERA Initial Study and EIR, all pertinent Staff Reports submitted to the Council in connection with the wireless communications network, minutes, application materials, and all comments and materials received at or before the public hearing on this project and on Town of Tiburon Ordinance No. 469 N.S and all materials in the record of the Town's consideration ofa conditional use permit for a MERA facility at 99 y, Mt. Tiburon Road. The record also includes, without limitation, all reports, comments and materials for the April 17, 2002, and June 19, 2002 meetings described below, and the minutes thereof. B. On April 17, 2002, the Town Council held a public meeting to discuss potential sites for the Southern Marin wireless communications facility. The Town sent notices of this meeting to all properties located within approximately 1000 feet of the three potential sites located within the Town: 99 y, Mt. Tiburon Road, 145 SugarloafDrive and a third location sited on open space located near Gilmartin Drive. The Council heard reports on these sites and on a fourth site located on Wolfback Ridge in the City of Sausalito. The Council also heard considerable public testimony at this meeting, most of which focused on the Mt. Tiburon and W olfback Ridge sites. The Council directed staff to pursue the Wolfback Ridge site as the most appropriate alternative. The Council indicated that Sugarloafwas a potential "back-up" alternative. Unfortunately, MERA determined that TIBURON TOWN COUNCIL RESOLlJTION NO. JULY 31,2002 I G:\Shared\adanforth\Planning, Gcncral\MERi\ Sugarloafrcsolution.doc ~ the Wolfback Ridge site was not a feasible location. The Town's independent engineer confirmed this conclusion. C. In May of 2002, MERA condemned the Mt. Tiburon Road site, asserting that by acquiring ownership, it no longer needed Town approval to construct a wireless communications facility on that site. MERA advised Town officials that it would begin construction on the Mt. Tiburon site unless the Town could promptly deliver an alternative site On June 19, 2002, the Town Council held a duly noticed public hearing on a proposed urgency ordinance, pursuant to Sections 36934 and 36937 of the California Government Code, establishing streamlined procedures for the consideration of this project at the Sugarloaf site. After taking public testimony on both the urgency ordinance and the merits of this project, the Council adopted Ordinance No. 469 N.S., establishing streamlined review procedures for the project by vesting discretionary review authority over the project with the Town Council, exempting the project from all provisions of the Tiburon Zoning Ordinance, and exempting the project from the Tiburon Interim Standards and Criteria for Wireless Communications Facilities, except to the extent that the project is in keeping with the general intent of the Interim Standards. D. The Town Council held a duly-noticed public hearing on the project on July 3 I, 2002, and heard and considered testimony from interested persons. The Council also received oral and written communication regarding the project in the period between the meetings of June 19, and July 31, 2002. E. The Town Council has found, based upon the application materials and analysis provided in the July 31, 2002 Staff Report and other materials in the record, that the project as conditioned is, on balance, consistent with the applicable policies of the Tiburon General Plan Specifically, I. The project, as conditioned, is consistent with Policy LU-9 of the Land Use Element of the Tiburon General Plan, which states that public and quasi-public districts, such as the Governmental Facilities designation for the subject property, "may typically allow parks, educational facilities, governmental and quasi-public buildings or facilities; utility facilities and similar facilities owned and operated by public/non-profit agencies." The proposed wireless communications facility would be a communications facility operated by a public agency. 2. The project, as conditioned, is consistent with Goal LU-B of the Land Use Element of the Tiburon General Plan, which directs the Town "to ensure that all land uses, by type, amount, design, and arrangement, serve to protect and enhance the low-density residential and village character and image of the community." The existing water storage and TIUURON TOWN COUNCIL RESOLUTION NO. JULY 31, 2002 2 G:\.."iharcd\adanforth\Planning, Gcneral\MERA Sugarloat:rcsollltion.doc transmission facility on the subject property is typical of public facilities that are often accepted as necessary uses within residential neighborhoods Several public safety antennas are currently mounted on the water tank on this property, and nearly all of these antennas would be removed after the installation of the proposed facility. The installation of the subject wireless communications. facility at this location would therefore not significantly alter the usage of this site in a manner that would be inconsistent with the existing character of the surrounding neighborhood, while the use of this public communications facility serves to protect the same community character. F. The Town Council has found, based upon the application materials and analysis provided in the July 31, 2002 Staff Report, that the project, as conditioned, is consistent with the general intent of the Town of Tiburon Interim Standards and Criteria for Wireless Communications Facilities Specifically, I. Section IV.A. of the Town's Interim Standards and Criteria states that "location preference for wireless communications facilities should be given to publicly used structures, co-location and shared-location sites, and industrial or commercial sites. Applications for new wireless communications facilities should avoid sites located within or near residential areas... unless the applications include information sufficient to demonstrate: the location and type of preferred sites which exist within the proposed or technically feasible coverage area; that good faith efforts and measures were taken by the carrier to secure the preferred location sites; specific reasons why such efforts and measures were unsuccessful; . and specific reasons why the location of the proposed facility site is essential to meet the service demands of the carrier." 2. The proposed facility would be installed on the site of a publicly used structure, owned and operated by the Marin Municipal Water District. Single-family residential neighborhoods surround the site on Sugarloaf Drive, Place Moulin and Mount Tiburon Road. The Town, and MERA, have previously evaluated a number of other sites for the Southern Marin Emergency Radio Facility, including the water tank at 99'/, Mt. Tiburon Road, Angel Island, Wolfback Ridge above Sausalito, and several locations on open space along the Tiburon Ridgeline These alternative sites were rejected by different agencies, including the Tiburon Planning Commission, the State Department of Parks & Recreation and MERA, for various reasons, which included proximity to an adjacent residence, refusal to use State Park land for such a facility, and the inability of facilities at some locations to provide adequate radio coverage to portions of Tiburon and Sausalito. TIDURON TOWN COUNCIL RESOLUTION NO. JULY 31. 2002 3 G:\Shared\adanforth\Planning, Gencral\MERA Sugarloa!:rcsolution.doc ~ Based on the foregoing, staff concludes that a residential site is essential to complete the emergency radio network.. 3. Section IV.B. of the Town's Interim Standards and Criteria states that "wireless communications facilities shall be attached or sited adjacent to existing structures... Appropriate types of structures may include, but not be limited to: buildings, water tanks..." The location of the proposed facility adjacent to an existing water tank would be compatible with this requirement. 4. Section lV.C of the Town's Interim Standards and Criteria states that "Monopoles for wireless communications facilities should not be located in residential areas unless technical evidence demonstrates to the satisfaction of the Town that no other alternative facility site or type of antennas support structure is feasible and/or if the use of a monopole for the proposcd facility by itself or in combination with other existing, approved, and proposed facilities will avoid or minimize adverse effects related to land use compatibility, visual resources, and public safety." As described previously, other sites at 99V, Mt. Tiburon Road, on Angel Island, Woltback Ridge and open space areas along the Tiburon Ridgeline were evaluated and rejected. The subject location was chosen as the preferred site for its direct sight lines to other portions of the MERA system, which require shorter antenna heights, the terrain and vegetation around the water tank provide better visual screening of the facility, and the radio emissions are substantially lower than at the Mount Tiburon site 5. The Interim Standards and Criteria state that WCF's shall not generate electromagnetic frequency (EMF) radiation in excess of the human exposure standards adopted by the FCC An EMF report has been prepared for the subject facility which predicts the worst case levels of radiation generated by the facility and how these levels compare to the human exposure standards. The results of the health study indicate that the subject facility would comply with the required FCC standards, with emissions substantially below FCC standards Warning signs would be posted near each transmitting antenna which would be visible to workers intending to perform work on the site. 6. The Interim Standards and Criteria state that all WCF structures and equipment "shall be sited, designed, and screened to blend with the surrounding natural or built environment in order to reduce visual impacts to the maximum extent feasible." All equipment would be painted to blend in with the surrounding environment As set forth in the Staff Report/Addendum to EIR dated July 31, 2002, the facility would have little visual impact to people or property in the TlBURON TOWN COUNCIL RESOLUTION NO. JULY 31, 2002 4 G:\Shared\adantorth\Planning, Gcm:ral\MERA Sugarloafrcsolution.doc immediate vicinity or to the community at large. The antenna tower would be partially. shielded from view by mature trees. 7. Section V of the Town's Interim Standards and Criteria states that "shared location of wireless communications facilities in residential areas is to be avoided unless absolutely necessary or otherwise essential for the health, safety and welfare of the Town" The Town's approval will prohibit co-location of private communications carriers and ensure that the facility is for the exclusive use of the Southern Marin Emergency Radio Facility. A prohibition against co-location on the site will also be included within the lease for the property to the extent feasible under the law. 8. The subject wireless communications facility would comply with standards requiring minimized on-site lighting, adequate road access, and minimal disruption of existing vegetation. Noise and traffic impacts would be minimized for nearby uses by conditions of approval and by the minimal traffic necessary to maintain the facility. G. The Town Council finds that, based on the Federal Communications Commission's OET Bulletin 56, the project would not be injurious to public health, safety or general welfare H. The Town Council finds that, as stated in the findings for Ordinance No. 469 N.S., MERA's wireless communications network is essential for the safety of public safety personnel and Marin County residents, including residents of the Town. The current radio systems should be replaced as soon as possible because the risk of missing or blocked radio traffic, or poor interagency coordination and communication puts the public and police officers, fire fighters, paramedics and other emergency response personnel at risk. Timely completion of the network requires a site within the Town of Tiburon. The only two feasible sites are 99 Y2 Mt. Tiburon Road and 145 SugarloafDrive. For the reasons stated in the Staff Report, the project would have considerably fewer impacts at the Sugarloaf Drive site than it would at 99 Y2 Mt. Tiburon Road. . 1.. The Town Council finds that an Environmental Impact Report (EIR), certified on February 24, 2000, studied the Sugarloaf site as an "alternative" to the project and rejected that alternative for several reasons as set forth in the EIR The Town Council finds that the reasons for the rejection as set forth in the ErR are refuted by the analysis contained in the Addendum to Environmental Impact Report, dated July 3 r, 2002, prepared by the Town ofTiburon J The Town Council finds that a subsequent or supplemental EIR is not appropriate for this project, based on the following: TIBURON TOWN COUNCII, RESOLUTION NO. JlJLY31.2002 5 G:\Sharcd\adanforth\Planning, Gcncral\MERA Sugarloaf.rcsolution.doc 1. There has been no substantial change to MEM's wireless network' that would require major revisions of the environmental impact report. Adoption of the alternative site at 145 Sugarloaf Drive does not require major revisions to the MERA ElR because the change does not involve new significant environmental effects, not discussed in the MERA ElR, or a substantial increase in the severity of previously identified significant effects. The evidence in the record clearly establishes that the facility's impacts will be considerably reduced at the Sugarloaf site 2. The evidence in the record does not indicate that, since the certification of the MERA ElR, the circumstances under which the project is being undertaken have changed to any substantial degree, so as to require major revisions in the environmental impact report. The record does not contain any substantial evidence of new significant environmental effects, not discussed in the MERA EIR, or a substantial increase in the severity of previously identified significant effects. 3. The evidence in the record does not indicate that there is any significant new information, within the meaning of the CEQA Guidelines, which was not known and could not have been known at the time the MERA certified its EIR as complete. K. The Town Council further finds, based upon the above-referenced Addendum and in accordance with CEQA Guidelines sections l5l62(b) and 15\64, that the project, as conditioned, would have less than significant impacts on the environment, would have lesser overall environmental impact than the MERA-approved Mount Tiburon facility and that no further environmental review is required beyond that contained in the Addendum. L The record demonstrates that the emergency radio communications systems throughout the County are failing. MERA's emergency communications network is necessary for the Town of Tiburon and other MERA members to maintain emergency response service. Accordingly, the project is exempt from CEQA under 9 15269(b), I 5269(c) and J 5303 (Class C) of the CEQA Guidelines. Nevertheless, the Council has studied the environmental and other impacts of the project to ensure completion of the emergency communications network with the least possible impact on Tiburon residents. Section b Adoption of Addendum. AdOPtion of Sugarloaf Alternative. and Approval of Proiect. NOW, THEREFORE, BE IT RESOLVED that the Town Council of the Town of Tiburon does hereby adopt the Addendum to Environmental Impact Report, dated July 3\, 2002, does hereby adopt the Sugarloaf alternative, and does hereby approve the construction, operation, TIBURON TOWN COUNCIL RESOUITION NO. JULY 31, 2002 6 G :\Sharcd\adanlorth \1'1 annin g. Gencral\M E RA S u garloaf.rc.~() lu tion, doc ~ , . and maintenance of the Southern Marin Emergency Radio Facility at 145 SugarloafDrive, subject to the following conditions: I. The project shall be in substantial conformance with the drawings dated July 26, 2002, prepared by Tower Structures, 4 sheets, except that the monopole shall be relocated (perpendicular to Place Moulin) to a position in the immediate vicinity of the existing fence along Place Moulin. Final location of the monopole is subject to MMWD approval based upon the final design of its plan to add and replace water tanks on the site. Minor deviations (up to ten feet horizontally along the fence and two feet vertically) in the location and/or height offacilities is permitted if necessary for the proper functioning of the facility, provided that such deviations do not negatively and substantially increase the visibility of the facility nor substantially increase RF emissions of the facility as measured at FCC-required locations Iflower heights are determined to be possible while still ensuring proper functioning, then the facility shall be lowered or otherwise reduced in scale or bulk. The facility includes: . Installation of an approximately 13-inch diameter, 48-foot high monopole in the northeastern portion of the site. Attached to this monopole would be two (2) 14 inch high by 45-inch long by seven (7) inch wide panel antennas mounted on a cross-bar, a four (4) foot diameter microwave dish and a whip antenna extending ten (10) feet above the.top of the monopole. '. Installation of an approximately 200 square foot (10' by 20') prefabricated equipment shed, an emergency backup generator, and a supporting 499 gallon propane tank on the northwestern portion of the site. . Excavation into the natural ridge on the northwest side of the site and co'nstruction of a retaining wall, varying in height from five feet to approximately ten feet . Trenching across the site to connect the monopole via underground conduit to the ancillary buildings and facilities. 2. The facility's power density and radio emissions shall remain within ten percent of the projections in the RF Exposure Analysis prepared by Green Drake Engineering for the project (July 25,2002). The Town will retain, at l\1ERA's expense, an independent firm, certified to perform RF exposure and power density analyses. This report must confirm the findings of the RF Exposure Analysis regarding anticipated emissions (within ten percent) prior to installation of the facility. 3. As soon as the facility becomes operational, the Town will test the facility at full power to ensure that emissions substantially comply wi.th the projections in the RF. Exposure Analysis. The Town will conduct annual testing of the facility after it becomes operational to ensure that it continues to operate within FCC limits for emissions. The Town shall conduct further tests upon any modifications to the TIBURON TOWN COUNCIL RESOLUTION NO. nJl.Y 31, 2002 7 G:\Shared\adanforth\Planning, Gencral\MERA Sugnrloaf.resolution.doc . equipment at the facility that could increase emissions. All of the above tests shall be at MERA's expense 4. The Town shall enter into an agreement with MERA and MMWD that would guarantee that no additional communications facilities will be located on the property (i.e., the site will not become an antenna farm). 5. A continuous 6 foot fence shall be constructed around the water tank lot, both for security and public safety reasons. 6. MERA will install shielding of the propane tank or other safety measures (including, without limitation, relocating the tank) as approved by the Town Engineer to protect nearby persons and property from harm in the event of a propane explosion. 7. To the extent practicable, the operator of the facility shall reduce height and mass and improve aesthetics of the facility as improvements in technology allow, provided that RF exposure levels do not increase at surrounding properties 8. The monopole, antennas, equipment shed, and other components of the facility shall be finished in appropriate colors to blend in with the colors and materials of the adjacent hillside. Said colors and materials shall be approved by the Tiburon Planning Division prior to construction of the facility. The Town may require the monopole/antenna assembly to have an exterior treatment that will resemble, as closely as possible, a living tree similar in appearance to those surrounding the monopole. 9. Noise levels shall, at a minimum, comply with the Town of Tiburon noise compatibility guidelines as set forth in the General Plan Noise Element In addition, to the extent feasible, decibel levels significantly below these levels shall be achieved. The equipment shed shall be designed to have ventilation or other characteristics that will serve to reduce the need for air conditioning. The air conditioning unit on the equipment shed shall use the quietest of available machines as of this approval; shall be placed on the equipment shed in the location where the least noise shall be heard by neighboring homes. A high quality of muffler with best sound attenuation practices shall be provided for the generator, including, without limitation, solid fences, baffles, covers, shields or other'noise reduction packages or sound-reducing devices to further reduce noise heard at adjacent homes, particularly the residences at 1 Place Moulin and 2 Place Moulin. The back-up generator shall be enclosed with a sound-attenuating enclosure and shall also employ solid fences, baffles, covers, shields or other passive sound- reducing devices if necessary to minimize noise during its limited operations. TIBURON TOWN COUNCIL RESOLUTION NO. JULY 31, 2002 8 G:\Sharcd\adanforth\Planning, Gcncral\MERA Sugarloaf.rcsolution.Joc ^ . ;' .' .,. 10. The backup generator is allowed to be tested once a week for a IS-minute interval during a mid-week morning no earlier than 10:00 AM. Outside of this testing period, it is authorized to operate only in the event of a power outage and in that case only for the minimul!1 time necessary until regular power is restored. II. Vehicles accessing the site for testing, monitoring or other MERA purposes shall to the extent feasible park inside the gates to reduce traffic congestion on the narrow streets in the vicinity. 12. There shall be no exterior lighting of the MERA facility. 13. Warning signs in conformance with FCC adopted guidelines shall be posted on or near the antennas to inform workers of potential hazards from close proximity. 14. It is acknowledged that some tree thinning and/or removal of trees may be required for proper operation of the facility. Building on the Arboricultural Report dated July 29, 2002, attached as Exhibit "A" hereto, a Tree Protection and Landscape Screening Enhancement Plan shall therefore be prepared for review and approval by the Town of Tiburon Public Works Department prior to installation of the facility. This plan shall ensure that the redwood trees on the site shall be preserved to the maximum extent feasible during site preparation, installation, and operation. The Plan shall be implemented as soon as practical to ensure maximum survivability of the trees. This Plan shall provide improved screening of the facility from off-site, primarily but not exclusively from the properties located at I Place Moulin and 141 Sugarloaf Drive. It shall, at a minimum, contain provisions for replacement of lost, dead or dying trees with the intent that landscape screening is a critical ongoing element to the successful co-existence of this facility in a residential area. Construction mitigation measures contained within Exhibit" A" shall be incorporated. 15. All existing antennas on the site, excepting one, shall be removed upon successful installation of the facility. 16. Permittee shall operate and maintain the site to industry standards. This condition is in lieu of a standard performance agreement and security deposit with the Town as set forth in the Interim Standards & Criteria. 17. This permit shall expire and become null and void within one year of final approval unless vested. This time limit shall be tolled by lawsuits or moratoria. TlBURON TOWN COUNCIL RESOl.UTION NO. JULY 31. 2002 9 G:\Shared\adanforth\Planning, Gencral\MERA Sugarloafrcsolution.doc " i, i 18. The Agreement referenced in Condition 4 shall provide that if the Town of Tiburon identifies a feasible, non-residential alternative site for the facilities, secures the necessary permits therefore and provides the financing for construction of the alternative facility, MERA will, once the alternative site is operational and MERA has obtained any necessary FCC licenses, transfer emergency communications operations to the alternative site and cease operations at the temporary site within six months. MERA will be permitted to re-locate equipment and structures at the temporary site to another location. The agreement will also require MERA to cooperate and assist in the search for an alternative, non- residential site and assist in the permitting process for that site and to promptly take any measures required to obtain FCC licenses for the site. PASSED AND ADOPTED at a special meeting of the Tiburon Town Council on July 31, 2002, by the following vote: AYES: COUNCILMEMBERS NOES COUNClLMEMBERS: ABSENT: COUNCILMEMBERS: TOM GRAM, MAYOR TOWN OF TlBURON , ATTEST DIANE CRANE IACOPI, TOWN CLERK \shared\adanforth\MERA.resolution.doc TIDURON TOWN COUNCIL RESOLUTION NO. JULY 3 1.2002 10 G:\Shared\adanforth\Planning, General\MERA Sugarloafrcsolution,doc r) '/ (" ./ Il1IVfT5f TOWN OF TIBURON Town Council Chambers 1505 Tiburon Boulevard Tiburon, CA 94920 August 21, 2002 7:15 PM - Closed Session 7:30 PM - Regular Meeting ASSISTANCE FOR PEOPLE WITH DISABILITIES In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact the Town Clerk at (415) 435-7377. Notification 48 hours prior to the meeting will enable the Town to make reasonable arrangements to ensure accessibility to this meeting. AVAILABILITY OF INFORMATION- Copies of all agenda reports and supporting data are available for viewing and inspection at Town Hall and at the Belvedere-Tiburon Library located adjacent to Town Hall. PUBLIC HEARINGS Public Hearings provide the general public and interested parties an opportunity to provide testimony on these items. If you challenge any proposed action(s) in court, you may be limited to raising only those issues you or someone else raised at the Public Hearing(s) described later in this agenda, or in written correspondence delivered to the Town Council at, or prior to, the Public Hearing(s). TIMING OF ITEMS ON AGENDA While the Town Council attempts to hear all items in order as stated on the agenda, it reserves the right to take items out of order. No set times are assigned to items appearing on the Town Council agenda. AGENDA CLOSED SESSION CONFERENCE WITH LEGAL COUNSEL - EXISITNG LITIGATION (Section 54956.9(a)) Tiburon Residents (TRAUMAS) v. Town of Tiburon and MERA Xanadu v. Town of Tiburon CALL TO ORDER AND ROLL CALL Councilmember Berger, Councilmember Fredericks, Councilmember Thompson, Vice Mayor Slavitz, Mayor Gram \ ....~ '. Agenda - Town Council Meeting August 21 , 2002 Page 3 of 3 '> PUBLIC HEARING 7. ApPJlal of Design Review Board Decision - Approval of a new single-family dwelling located at 3 Palmer Court - (Hearing continued to September 4, 2002) Assessor's Parcel Nos. 55-201-01 Applicants - Thomas & Olivia Kress Appellants - Art & Florence Kenney COUNCIL. COMMISSION AND COMMITTEE REPORTS WRITTEN COMMUNICATIONS Town Council Weekly Digest - August 9, 2002 Town Council Weekly Digest - August 16, 2002 ADJOURNMENT FUTURE AGENDA ITEMS . Recommendation by Director of Public WorksfTown Engineer - Introduction of ordinance concerning further regulation of gas-powered leaf blowers - (September 4) . Interviews - Jt. Recreation Committee - Jim Hermann, 52 Red Hill Circle; Tara Sullivan, 345 Ridge Road - (September 4) . Recommendation by Town Manager - Proclamation in opposition to CAUTRANS installation of Soundwall at Highway 101 and East Blithedale - (September 4) /" ./ . Agenda - Town Council Meeting Aug ust 21, 2002 Page 2 of 3 ORAL COMMUNICATIONS Persons wishing to address the Town Council on any subject not on the agenda may do so now. Please note however, that the Town Council is not able to undertake extended discussion or action tonight on items not on the agenda. Matters requiring action will be referred to the appropriate Commission, Board, Committee or staff for consideration and/or placed on a future Town Council meeting agenda. Please limit vour comments to no more than three (3) minutes. CONSENT CALENDAR All items on the Consent Calendar may be approved by one motion unless a request is made that an item be transferred to the Regular Agenda for separate discussion and consideration. Any item on the Regular Agenda may be moved to the Consent Calendar. 1. Recommendation by Director of Administrative Services - Accept Town Monthly Investment Summary for July, 2002 2. Recommendation by Senior Planner - Adopt Resolution of Town Council decision to Deny Appeal of Design Review Board approval of a parking deck at 1859-1865 Mar West Street a) A Resolution of the Town Council of the Town of Tiburon Denying an Appeal by Gary and Linda Lisk of the Approval of A Site Plan and Architectural Review and a Variance for Property located at 1859 & 3865 Mar West Street 3. Recommendation by Director of Community Development - Authorize Future Annexation Agreements in the Vicinity of Teaberry Lane and Paradise Drive a) 4 Teaberry Lane (Nelson) - AP No. 58-081-06 b) 7 Teaberry lane (Barton) - AP No. 58-091-12 c) 8 Teaberry Lane (Goldstein) -AP No. 58-081-05 d) 17 Teaberry Lane (Radu) - AP 58-091-05 e) 3330 Paradise Drive (Ivey) - AP No. 58-051-16 4. Recommendation by Town Attorney - Amicus Brief Requests a) Richmond v. Shasta Community Services District b) Topsail Court Homeowners Association v. Soquel Creek Water District, et al. c) Border Business Park, Inc. v. City of San Diego d) Eastburn v. Regional Fire Protection Authority e) Chavez v. Martinez 5. Recommendation by Town Attorney - Authorize Responses to Marin County Grand Jury a) Presale Inspections in Marin County - (May 30, 2002 Grand Jury Report) b) Emergency Management and Operations - (June 19, 2002 Grand Jury Report) 6. Recommendation by Director of Public WorkslTown Engineer - Purchase of Public Works Department Sweeper for Downtown Area a) Authorize Budget Amendment e Town of Tiburon STAFF REPORT AGENDA ITEM ~ lI'.' . . .. . . FROM: Mayor and Members of the Town Council . Heidi McVeigh, Director of Administrative Services TO: SUBJECT: Monthly Investment Summary - July 2002 ~ MEETING DATE: August 21, 2002 REVIEWED BY:~ TOWN OF TIBURON Institution/Agency Investment Amount Interest Rate Maturity State of California Local Agency $8,566,350.75 2.714% Liquid Investment Fund (LAIF) Total Invested: $8,566,350.75 e TlBURON REDEVELOPMENT AGENCY Institution/Agency Investment Amount Interest Rate Maturity State of California Local Agency $824,965.95 2.714% Liquid Investment Fund (LAIF) Bank of America Other $0 Total Invested: $824,965.95 Notes to Table Information: State of California Local Agency Investment Fund (LAIF): The interest rate represents the effective yield for the month referenced above. The State of California generally distributes investment data reports in the third week following the month ended. Acknowledgment: This summary report accurately reflects all pooled investments of the Town of Tiburon and the Tiburon Redevelopment Agency, and is in conformity with State laws and the Investment Policy adopted by the Town Council. The investment program herein summarized provides sufficient cash flow liquidity to meet next month's estimated expenditures. e Heidi McVeigh cc: Town Treasurer August 1, 2002 1 of 1 e e . LA IF Performance Report Page I ot I Philip Angelides, State Treasurer ~ Inside the State Treasurer's Office .. Local Agency Investment Fund LAIF Performance Report 08/08/02 08/07/02 2.69% 2.61% 2.69% 209 Reporting Date: Effective Date: Quarter Yield: Daily: Year: Life: Quarter Ending 06130102 Apportionment Rate: 2.75% Earnings Ratio: .00007525855286315 Fair Value Factor: 1.002780144 Monthly Average FO€2:714% ~ Pooled Money Investment Account Portfolio Composition $45.6 Billion 71311112 Reverses Loans -0.72% 9.68% Treasuries 15.60% Corporate Bonds 5.35% . Treasuries MO;~;~S 0 Mortgages I::] Agencies . CD's!8N's o Time Deposits Agencies (;] Bankers Acceptances 22.15% . Repo . Commercial Paper D Corporate Bonds o Loans . Reverses Commercial Paper 21.28% CD's!8N's 15.32% !rI Adobe PDF version of LAIF Performance. e e e Town of Tiburon STAFF REPORT ;;l AGENDA ITEM ..... .... . . .. ... . .. .. ... ........ .. TO: MAYOR AND MEMBERS OF TOWN COUNCIL DANIEL M. WATROUS, SENIOR PLANNER 1859 & 1865 MAR WEST STREET ADOPTION OF RESOLUTION DENYING APPEAL OF APPEAL OF DESIGN REVIEW BOARD DECISION TO APPROVE SITE PLAN AND ARCHITECTURAL REVIEW FOR THE APPROVAL OF A PARKING DECK, WITH A VARIANCE FOR REDUCED FRON~D SETBACK AUGUST 21, 2002 REVIEWED BY: ~ FROM: SUBJECT: MEETING DATE: SUMMARY On August 7, 2002, the Town Council held a public hearing on an appeal of the Design Review Board's decision to approve a Site Plan and Architectural Review application for the construction of a parking deck, with a Variance for reduced front yard setback, on property located at 1859 & 1865 Mar West Street. At that meeting, the Town Council voted (4-0) to deny the appeal. A resolution has been prepared memorializing this decision, and is attached. RECOMMENDATION Adopt the attached resolution denying the appeal. EXHIBIT 1. Draft resolution August 21. 2002 1011 e RESOLUTION NO. A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON DENYING AN APPEAL BY GARY AND LINDA L1SK OF THE APPROVAL OF SITE PLAN AND ARCHITECTURAL REVIEW AND A VARIANCE FOR PROPERTY LOCATED AT 1859 & 1865 MAR WEST STREET WHEREAS, on June 6, 2002, the Design Review Board held a public hearing to consider the approval of a Site Plan and Architectural Review application for the construction of a parking deck, with a variance for reduced front yard setback, on property located at 1859 & 1865 Mar West Street, proposed by the owners of 1865 Mar West Street, the Bille Trust ("Applicants"); and; WHEREAS, after receiving public testimony, the Design Review Board determined that the parking deck as proposed did not create significant view impacts on the home at 1859 Mar West Street, and that this parking configuration was an appropriate solution for the parking demands of the home at 1865 Mar West Street; and WHEREAS, on June 6,2002, the Design Review Board voted (2-1-1) to conditionally approve this application; and e WHEREAS, on June 14, 2002, the owners of the property at 1859 Mar West Street, Gary and Linda Lisk ("Appellants"), filed an appeal of the Board's decision to approve the application for Site Plan and ArchitE?ctural Review and a Variance for 1859 & 1865 Mar West Street; and WHEREAS, on August 7, 2002, the Town Council of the Town of Tiburon held a duly-noticed public hearing on the appeal; during which public testimony was heard regarding the subject construction and the Design Review Board's review of the application; and WHEREAS, after hearing all testimony and reviewing all documents in the record, the Town Council agreed with the Design Review Board that the proposed project would not create significant view impacts for nearby homes, and was an appropriate parking solution for this property. WHEREAS, based on the above findings, the Council determined to deny the appeal by the Owner and uphold the Design Review Board's approval of the project (a vote of 4-0). NOW, THEREFORE, BE IT RESOLVED that the Town Council of the Town of Tiburon memorializes that the appeal of Gary and Linda Lisk was denied on August 7, 2002, as set forth in this resolution. " PASSED AND ADOPTED at a regular meeting of the Town Council on August 21, 2002, by the following vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: e TIBURON TOWN COUNCIL RESOLUTION NO. 6/5/02 1 e e e ATTEST: DIANE CRANE IACOPI, TOWN CLERK TIBURON TOWN COUNCIL RESOLUTION NO. TOM GRAM, MAYOR TOWN OF TIBURON 6/5/02 2 e e e Town of Tiburon STAFF REPORT AGENDA ITEM :3 (2-) -C~ ) TO: MAYOR AND MEMBERS OF THE TOWN COUNCIL FROM: SCOTT ANDERSON, DIRECTOR OF COMMUNITY ~ DEVELOPMENT SUBJECT: FUTURE ANNEXATION AGREEMENTS FOR FIVE PROPERTIES LOCATED IN THE VICINITY OpEABERRY LANE AND PARADISE DRIVE \~ ~ ~~~~~~~T.E:. ~~~~S.T.2~,.2~~2. . . ~~I~~D.~Y.: . .~~. . . . . . BACKGROUND At its meeting of June 5, 2002 the Town Council received a report on Paradise Drive annexation issues and was informed that approximately 15 properties in the Teaberry Lane vicinity of Paradise Drive would be filing shortly for "future annexation agreements" that would enable them to hook into the public sewer system without immediate annexation to the Town of Tiburon. The Town Council, after discussion, agreed that it would continue to process and approve such agreements. To date, eight (8) agreements have been approved by the Town Council. Five more are now ready for approval. ANALYSIS The five subject properties are as follows: . 4 Teaberry Lane (Nelson); existing residence . 7 Teaberry Lane (Barton); existing residence . 8 Teaberry Lane (Goldstein); existing residence . 17 Teaberry Lane (Radu); existing residence . 3330 Paradise Drive (Ivey); existing residence Each of the subject properties is located on, or in the vicinity of Teaberry Lane off Paradise Drive, far from current Town boundaries (see Exhibit 1). The Local Agency Formation Commission (LAFCQ) has approve the annexation to the Sanitary District #5 contingent upon execution of the annexation agreement. August 21. 2002 1012 e e e Town of Tiburon STAFF REPORT AGENDA ITEM . .. .. ., .. . . .. .,. . .... .... ... .... . . .. .. ... .. .. . The five owner-executed agreements are attached as Exhibits 2, 3, 4, 5 and 6. RECOMMENDATION Staff recommends that the Council approve the Agreements and authorize the Town Manager to execute them. EXHIBITS 1. Vicinity map of subject properties. 2. Agreement with 4 Teaberry Lane owners. 3. Agreement with 7 Teaberry Lane owners. 4. Agreement with 8 Teaberry Lane owners. 5. Agreement with 17 T eaberry Lane owners. 6. Agreement with 3330 Paradise Drive owner. \scott\4 teaberry lane report.doc Augusl21, 2002 2012 rn :0\\ . \~\ __ , 3T \~. . "-.:----~ l:2. \;" :lJ . ...;\ \~.:-~ ;, ~\ ~'~'I:rJ~:"&\ / ~~:lJ.\/~1-- \~[,;,,~ ~ l' ~. \ 1/(1'"O....'j.. :A~ 'ew.-/ .. .---1',-- I........r-...J 0 1/ \ I d" I ,.l-- en r, -- o "8,c~IL irH ('- \ ~~~-"d en ~ -. ~~.... 17 ~r7!~rlf\*lsJx \ '\~Y ; ~ ():9JV :1"Y~ ~~O\ - . '_I~ "C ;;~~ ,,>)<" ~ )\~ , . (l . r C?~OK ~~ ~J'-J ~ ,~ 1~ " )~y'\ V-' '''tJ,-, ~ ~ ~j~ ~ t: ~ / }~ " v. \ ~"7 ~ 0- c..' -"if / V- ~ . '- rr'~C :r-I'.?- . 1--..-\ r . / ) 1/1 /,0>.. \~___{_j( 'IJf:, - t::J 0 Y l/ :lJ----y~_~',f:~'fA\ '~~ .. ~\ '-. ~ ~ ~(<7'VJ;.- \ -- --..:,y( ~ ~ /\ ~ rA- . /, \ ,~ 07R?ci i\3/U"~~~'i~:;;j~~~~ C% ((';--:\...1. ~/7~1 ~ ' vi ~ !..~~.. ~ ~~I- V ._....... "'4'/.. ~ _ 17i~ ~ ~~. ,'A'l "j<.J;.- - II.. ~~. ' --- _ U~--{t~ I I':. t()~r7.-',:I5-!., ~ \ (!~\ ~i"J '\: '-J J ~ ~'- /~~L /'f1~ \ ~ ~-,/ 1".2--::1'6 '~ ,~'" / ~"""'-. 0 . "<>> ' \ \ en )) ~~. l?' ~ ~.A~ ---' 7f?i[Vi ~.1 [f.~ /1 ~ 'U i.... ~~ j= _. ~ . - ~' ;r.g' i) 7L ~ 7/ 7--;:};\ :_ ~~ ........ "-.. <' ',--" q/ . j -- H~'Ar \ \ ~~ ) ....;;:tL I ~'-l'"~ /: - C~fh \ ! \ :t, / ~, \ (\(~. ~f , \ I . \~I y ) fl' uit..!Ii!- i I :....,.,,'.~. ~i X \ ~ , .' [~It~". ' I.l i~~;(~rl>1\ .~~ ," /-#-0 ~~ tJ~J{Jr~ ::. EXHIBr'1' NO.J ~ -, ./ I , . ~ - ,I::' e ..,.... ":.. APN NO. 58-081-06 ".-' ." Recording Requested By: . " .':.' , TOWN OF TillURON Return to: Planning Director Town of Tiburon 1505 Tiburon Blvd. Tiburon, CA 94920 . This document is for the benefit of the Town of Tiburon. DOCUMENT TITLE AGREEMENT REGARDING ANNEXATION OF REAL PROPERTY COMMONLY KNOWN AS 4 TEABERR Y LANE TO THE TOWN OF TillURON . EXHIB1TNO,~_ e e e ,.., <,.. : AGREEMENT REGARDING ANNEXATION OF REAL PROPERTY TO THE TOWN OF TffiURON This Agreement is made and entered into this 19th day of June, 2002 by and between the ToWn of Tiburon, a municipal corporation, ("Town" hereafter) and Lilly E. Nelson ("Owner" hereafter) and is based upon the following facts: (a). Owner holds title to that certain real property ("the Property" hereafter) described in Exhibit "A" attached hereto and shown for illustrative purposes only on the attached Exhibit "B"; and .... (b) Owner desires to connect to the public sewer system provided by Sanitary District No.5. As a result of the Marin Local Agency Formation Commission (LAFCO) dual annexation policy, Owner would be required to annex to the Town of Tiburon concurrently with annexation to the Sanitary District unless the policy is waived. Town recognizes that at this time, annexation of this non-contiguous property would result in inefficient provision of Town services to the property, but that at some point in the future, the Town may desire annexation. (c) The Town has agreed to defer annexation of the Property and recommend such to the Local Agency Formation Commission on the conditions set forth in this Agreement. NOW, THEREFORE, IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS: 1. Owner agrees on behalf of himself, his heirs, successors and assigns that, in the event any future proceedings for the annexation of the property to the Town shall be initiated by the Town, Owner shall neither directly nor indirectly oppose or protest such annexation. 2. Owner agrees that his obligations hereunder shall run with the Property and that the Property shall be held, conveyed, hypothecated, encumbered, leased, rented, used and occupied subject to the provisions of this Agreement and that the obligations undertaken by Owner hereunder shall be binding on all parties having or acquiring any right, title, or interest in the Property. 2 ~ " . ~ . . .....,. -'... . OWNER: ..~'/(/ I: 172&/t1.?/ .' Lilly E. Nelil6n . . Subscribed. and sworn to before me this . -tL. cay 0 : -:::r V~2002..- Notary Public Ofnce. Mann CounIy OWNER: .' .,': .,'...., TOWN OF TffiURON: By: . Alex McIntyre, Town Manager ATTEST: By: Diane Crane Iacopi, Town Clerk APPROVED AS TO FORM: By: Ann R. Danforth, Town Attorney Attachments: Exhibits "A" and "B". 1~~~~&&~~~~~~~~t I JAMES CURRY' ... .' COMM. # 1263365 .;!: fti NOTARY PUBLIC-CALIFORNIA !B ::e SAN FRANCISCO COUNlY .:. ~I . My Commission Expires MAY 11,2004 IJ. T.............T'Y...............TTY 4 teaberry annex ,doc 3 EXHIBIT "A" All that certain real property situate in the county of Marin, State of California, more particularly described as follows: e BI::GINNING at a point on the Southerly line of the County Road leading from Paradise Cove to Tiburon, at the most Northerly corner of the parcel of land described in the Deed from Thomas l.l. Deffebach, et al, to Phil F. Reedstrom, et al, recorded January 14, 1947 in Liber 538 of Official Records, at page 409, Marin County Records; running thence along the Northeasterly line of the parcel of land described in said deed, South 40. 22' East 156.3 feet to a point; thence leaving said line and running South 80. 38' West 93.328 feet and North 40. 22' h'est 126.345 feet to a point on the Southerly line of the County Road, above referred to; running tL1.ence along the last named line, North 62. 23' 30" East 82.024 feet to the point of beginning. e . TOGE'fHER iHTli an easement for ingr.3ss and egress over that certain parcel of land described as follows: BEGINNING at a point which bears South 40. 22' East 156.3 feet and South 80. 38' West 93.328 feet from the most [';ortherlv corner of the parcel of land described in the Deed from 'fhomas B. Deffebach, et al, to Phil F. Reedstrom, et aI, recorded January 14, 1947 in Liber 538 of Official Records, at page 409; and running thence North 40. 22' West 20.0 feet and thence souti1.westerly along tile arc of a curve to the left, the center 'of whidl bears South 40.22' East 45.0 feet, for a distance of 69.9 feet; running thence Southerly along the arc of a curve to the right, the center of which bears South 48. 38' \~est 120.0 feet, for a distance of 115.774 feet; running thence along the arc of a curve to the left, having a radius Qf 58.795 feet, for a distance of 78.63 feet to a point which bears South 29. 17' h'est 20.0 feet from the most Northwesterly terminus of the course set fortn as, "Soutil 60.43' East 18.00 feet" in ti1.e Deed from Thomas B. Deffeuach, et aI, to Phil F. Reedstrom, et aI, recorded January 14, 1947 in Liner 538 of Official Records, at page 409; running thence i"orth 29. 17' East 40.0 feet to a point; running tilence Norti'lerly along the arc of a curve to the right, the center of which bears North 29. 17' East 47.54 feet, for a distance of 56.46 feet; running thence Northerly along the arc of a curve to the left, having a radius of 140.0 feet, for a distance of 114.19 feet; running thence Northerly along the arc of a curve to the right, having a radius of 25.0 feet, for a distance of 38.83 feet to the point of beginning. ALSO TOGETUER NITti an easement for ingress and egress over a strip of land with a uniform width of 40.0 feet, lying equally on either side of a line described as follows: e BEGDINING at a point on the Southerly line of the parcel of land described in the Deed from Thomas B. Deffenach, et aI, to Phil F. Reedstrom, et aI, recorded January 14, 1947 in Liber 538 of Official Records, at page 409, at the most ,.jortnwesterly terminus of the course set fort!1. in said Deed as "South 60.43' East 18.00 feet"; and running thence along said South- erly line, the following courses and distances; South 60. 43' East 18.00 fee't; thence along the arc of a curve to the left having a radius of 80' feet, for a distance of 99.69 feet; thence 1I0rtil 47.53' East, 7.70 feet; thence along the arc of a curve to the right having a radius of 60 f",.e_t_, for a di.st~~e ~f 73.-70-.-i~~.t.;-.--an.d- th~n-c-e- South 610 44"' East 2~...33 feet to a point on ble Northwesterly line of the County Road leading f~om Paradise Cove to Tiburon. BOOK 2216 PACE 598 e . f'~~\S( OIlS.J( . 57 ,'OO"'H 98.84 EXHIBIT "B'" . OINT OF BEGINNING GOLDSTEIN APN 058-081-05 , . 93.33 Ra45.00 L\.a8lr59'5S" La69.90' 50' , o SCALE: 50' 100' , 1 .. = 50' APRIL 24, 2002 .~ e APNNO.58-091-12 Recording Requested By: TOWN OF TIBURON Return to: Planning Director Town of Tiburon 1505 Tiburon Blvd. Tiburon, CA 94920 .. " - ~-. ,'. , 'e ,:_' ,". .' , . ',. .' ,i--,.. ~:', " . .,':: ... , . e This document is for the benefit of the Town of Tiburon. tit DOCillv1ENT TITLE AGREEMENT REGARDING ANNEXATION OF REAL PROPERTY COMMONLY KNOWN AS 7 TEABERRY LANE TO THE TOWN OF TIBURON - ',... EXHTRIT 1\:"0..-3.. ;;~~[; ,,'-":. . '.~:>".. e " ..,,,'^ . . AGREEMENT REGARDING ANNEXATION OF REAL PROPERTY TO THE TOWN OF TffiURON This Agreement is made and entered into this 19th day of June, 2002 by and between the Town of Tiburon, a municipal corporation, ("Town" hereafter) and James A. Barton and Lisa T. Barton ("Owner" hereafter) and is based upon the following facts: . (a) Owner holds title to that certain real property ("the Property" hereafter) described in Exhibit "A" attached hereto and shown for illustrative purposes only on the attached Exhibit "B"; and " .. '. (b) . Owner desires to connect to the public sewer system provided by Sanitary District No.5. As a result of the Marin Local Agency Formation Commission (LAFCO) dual annexation policy, Owner would be required to annex to the Town of Tiburon concurrently with annexation to the Sanitary District unless the policy is waived. Town recognizes that at this time, annexation of this non-contiguous property would result in inefficient provision of Town services to the property, but that at some point in the future, the Town may desire annexation. (c) The Town has agreed to defer annexation of the Property and recommend such to . the Local Agency Formation Commission on the conditions set forth in this Agreement. NOW, THEREFORE, IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS: 1. Owner agrees on behalf of himself, his heirs, successors and assigns that, in the event any future proceedings for the annexation of the property to the Town shall be initiated by the Town, Owner shall neither directly nor indirectly oppose or protest such annexation. . 2. Owner agrees that his obligations hereunder shall run with the Property and that the Property shall be held, conveyed, hypothecated, encumbered, leased, rented, used and occupied subject to the provisions of this Agreement and that the obligations undertaken by Owner hereunder shall be binding on all parties having or acquiring any right, title, or interest in the Property. 2 e e e '-....., . . ". ~;. ,-' , OWNER: a~.~ IameS"i\. Barton ;:.: OWNER: ....~~ .~. Barton. ~,' . By: JZ~;2~S'.,~~:c . 'I '- . ...., .' '';_J: (;.... "-',' ", ;,/ ','- , -' :. . h'~""',", . \.>:., .~ C? "'. '.",.,r'~/O' '':::-'..~~.,-.~'..' . ~..' '.' 'I" .. : ::.~~><:~: ::,.:-~~'..., '.... ,,;,:,,":-> , <:. ".// !f\f',..JS ,,,\ .~'I" 'I .;:; I ,.,,\. . J",;,;,,\,,' - OF TIDURON: Alex McIntyre, To anager ATTEST: By: o~ (Sj,de. 0+ Vt - ~Uh~ ,i= Or<tj0 APPROVED AS TO FORM: ~--- . n R. Danforth, Town A~ ,,".-', .. Attachments: Exhibits "A" and "B". 7 teabeny annex.doc 3 "'.' e OWNER: ....:r.' James A. Barton OWNER: .:. '. Lisa T. Barton 'T TOWN OF TIBURON: By: Alex McIntyre, Town Manager e ATTEST: By: Diane Crane Iacopi, Town Clerk APPROVED AS TO FORM: By: Ann R. Danforth, Town Attorney Attachments: Exhibits "A" and "B". 7 teaberry annex.doc e 3 e e e EXHIBIT A All that certain real property situate in the County of Marin~ State of California, described as follows: PARCEL ONE: BEGINNING at a point in the center line of a road 40.0 fe'et wide, said point being the Northwesterly corner of the property described in the Deed from Harold A. Onstad. et ux, to H. H. Horne, et ux. recorded May 11, 1948 in Book 582 of Official Records. at Page 393, Marin County Records; running thence along the Westerly boundary line of said property in the Deed to Horne, South 120 32' West 195.92 feet to the Southwesterly corner thereof; thence leaving said iine and running South 860 West 40.0 feet to the Southeasterly corner of the property described as Parcel One in the Deed from Hugh J. Downey. et ux to Robert C. Cruickshank, et ux. recorded July 25, 1957 in Book 1130 of Official Records. at Page 381, Marin County Records; running thence along the Easterly line of said property in said Deed to Cruickshank, North 7027' West 187.9 feet to the Northeasterly comet" thereof; said point being in the center line of the aforementioned 40.0 foot road; thence Easterly along said center line to the point of beginning. PARCEL TWO: A NON-EXCLUSIVE easement for driveway purposes over, along and across the following described parcel of land: BEGINNING at a point on the Southerly line of a 40 foot road known as Teaberry Lane (formerly Tredogo Road), at its intersection with the Westerly line of the lands conveyed to Elmer G. Hale, et ux, by Deed recorded March 10. 1959 in Book 1261 of Official Records, at Page 138, Marin County Records; running thence South 70 27' East along the Westerly line of said lands of Hale 160 feet to the most Southwesterly corner of said lands; running thence North 860 East along the Soun--tv line of the said lands of Hale, 40 feet; running thence South 29040' 19" West 70 feet; running thence North 160 50' West 202 feet, more or less, to the said Southerly line of Teaberry lane; running thence Northeasterly along said line 47 feet, more or less, to the point of beginning. PARCEL THREE: BEGINNING at the Northernmost point common to the lands of Harris as described in Document No. 90- 0058083, Marin County Records, and the lands of WItZel as described in Book 2556 of Official Records, at Page 290, Marin County ~ds; thence along the line common to said properties, South 710 27' 00" East. 119.22 feet; t~ leaving said line, North 290 SO' 0" West, 31.85 feet; thence North 160 50' 00" West. 75.13 feet, to the centerline of Teaberry lane; thence Northeasterly along said centerline, along a curve concave to the Northwest, whose center bears North 350 36' 01" West, radius 125.00 feet, through a central angle of 50 54' 51", an arc length of 12.90 feet; thence North 480 29' 00" East, 13.98 feet; thence along a tangent curve to the right, radius 100.00 feet. through a central angle of 10 12' 14" an arc length of 2.10 feet to the point of beginning. . . tit , ,0 ... if Q:: o /;t 9 il 'S~O~f' ~oo.9t.~os "b Cl ~ '" ~., ::o- m'" ~* o Zz ~!ll 8 8 ....... ...... II . ...... Cl "BII EXHIBIT N o o N - N. N -l 0:::: (L <t: ul ~ . p~ \ .~.\ . ~ 0- ... ~ iil , , '" ., H ':'8 ~z ~ e ;,.:.-'...: APNNO.58-081-05 .. ~ . " "0, .., . '. ,.t "",j;': ~.. . f", 'Recording Requested By: Return to: '. TOWN OF TffiURON Planning Director Town ofTiburon 1505 Tiburon Blvd. Tiburon, CA 94920 e This document is for the benefit of the Town ofTiburon. . , :., ::;.'~,~" ",-~, " e DOCUMENT TITLE AGREEMENT REGARDING ANNEXATION OF REAL PROPERTY CO~ONL Y KNOWN AS 8 TEABERRY LANE TO THE TOWN OF TffiURON ,'.,' EXHIRITNO~ e ".;. , e e AGREEMENT REGARDING ANNEXATION OF REAL PROPERTY TO THE TOWN OF TffiURON This Agreement is made and entered into this 19th day of June, 2002 by and between the Town ofTiburon, a municipal corporation, ("Town" hereafter) and Michael Goldstein and Barbara Goldstein ("Owner" hereafter) and is based upon the following facts: . (a) Owner holds title to that certain real property ("the Property" hereafter) described in Exhibit "A" attached hereto and shown for illustrative purposes only on the attached Exhibit "B"; and ' (b) Owner desires to connect to the public sewer system provided by Sanitary District No.5. As a result of the Marin Local Agency Formation Commission (LAFCO) dual annexation policy, Owner would be required to annex to the Town of Tiburon concurrently with annexation to the Sanitary District unless the policy is waived. Town recognizes that at this time, annexation of this non-contiguous property would result in inefficient provision of Town services to the property, but that at some point in the future, the Town may desire annexation. (c) The Town has agreed to defer annexation of the Property and recommend such to the Local Agency Formation Commission on the conditions set forth in this Agreement. NOW, THEREFORE, IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS: 1. Owner agrees on behalf of himself, his heirs, successors and assigns that, in the event any future proceedings for the annexation of the property to the Town shall be initiated by the Town, Owner shall neither directly nor indirectly oppose or protest such annexation. 2. Owner agrees that his obligations hereunder shall run with the Property and that the Property shall be held, conveyed, hypothecated, encumbered, leased, rented, used and occupied subject to the provisions of this Agreement and that the obligations undertaken by Owner hereunder shall be binding on all parties having or acquiring any right, title, or interest in the Property. , ~";' 2 e . ~"''l:'' e e " . . :t.,. ',.: ...-<-',' Michael Goldstein c,,',; OWNER: ......,.... .'.''', ,...,,: " :'"' .,\ "'cfJatbw.- '~~~ . ,..' -.:.l;"~,i'- .... , , Barbara Goldstein TOWN OF TIBURON: By: . Alex McIntyre, Town Manager ATTEST: By: Diane Crane Iacopi, Town Clerk APPROVED AS TO FORM: By: ,,", ',.' . ,.....-; -"" Ann R. Danforth, Town Attorney Attachments: Exhibits "A" and "B". 8 teaberry artnex .doc 3 I e MARIll COUllTY OFFICIAL RECORDS , DeSCRIPTION AI that certain real ",operty situute in the . County of Marin. State of California. described as foUows: PARC8.. ONE: BEGINNING at a point on the Southerly line of the County Road leading fTom Paradise Cove to Tiburon. dist3nt thereon South 620 23' 30" West 109.48 feet and South 760 21' West 98.84 feet from the most ,.."d.."iy comer of the parcel of land des,ribed in the Deed from Thomas B. Oeffebach. et al. to Phil F. RHJ...~... at aI. recorded ~ 14. 1947 in Book 538 of Official Racords. at Page 409. Marin County Records; thence leaving said road and ruming along the Westerly line of said parcel of land South 40 36' East 139.00 feet to a point; thence Ieavjng said Westerly &ne and running North 68" 53' 30" East 105.20 feet to a point; running thence along the arc of a curve to the right. the C2ftter of which bears South 21" 52' East 90.0 feet for a distance of 61.156 feet: thence continuing along the arc of a curve to the right. having a radius of 30.0 feet. for a dbt.o..c.e of, 17.575 feet to a point; running thence along the arc of 8 curve to the rigitt, the center of whicb bears North soo 38' East 45.0 feet, for a c6stance of 69.9 feet to a point on the Southwesteriv ine of the paroeI of land described in the Deed from James :. Egger. et ux. to Rita Lane WiIIiaInsOn. ,.,..." ded Novembe< 21. 1956 in Bool< 1075 of Official Records. at Page 30. Marin County ReCords; 1henCe along said last ..~.bu.led &ne North 400 22' West 106.345 feet to the Southerly line of the County Road, abcve referred to; thence along said Sootf1erly line South 62023' 3D" West 27.456 feet and South 760 3~' West 98.84 feet to the point of beginning. PA.RC8.. TWO: AN EASEMENT for ;,y-=" and egress eve< that certain parcel of land described as follows: IlEGINNING at a point which bears South 40022' East 150.3 feet and South 80038' West 93.32 leet from the most Nuolhc.iy comer of the parcel of land described in the Deed fTem Thomas B. Deffebach. et al. to Phi F. Reeohuom. et aI. recorded January 14. 1947 in Book 538 of Official Records. at Page 409. Marin County Racords. and running thence North 400 22' West 20.0 feet and thence Southwesterly along the arc of a C<JrYe to thJ left. the center of whic:h bear.; South 400 22' !2sl 45.0 feet for a distance of 59.9 feet. running thence Southerty aIang the arc of a curve to the right. the center of which bears South 500 38' West 120.0 feet, for a db~..... of 115.774 feet. running thence along the arc of a curve to the left having a radius of 58.795 feet for a dist3nce of 78.63 feet to a point which bears South 290 17' West 20.0 feet from the most Nor1hwesteriv tenninus of the course set forth as "South 500 43' East 18.00 feet" in the Deed from Thomas B. o..rM>....h. et aI. to Phil F. ReeJ,...~... at aI. recorded January 14. 1947 in Book 538 of Official Records. at Page 409. Marin County Records; running thence North 290 17' East 40.0 feet to a point. running tbooolCl! N...d.edy along the arc of a curve to the right. the C2lttef of which bears North 290 17" East 47.54 feet. for a &.t-.ce of 56.46 feet. running thence Nu. d.edy along the arc of a curve to the left having a mdius of 114.19 feet; n.n1ing thence ,.."docrfy along the arc of a curve to the right having a RIdius of 25.0 feet. for a &.1'....... of 38.83 feet to the point of ~..;..... PARCEl. rriREE: AN EASEMENT for ingress and egress over a strip of land having a uniform width of 40.0 feet. lying equally on either side of a ine descrmed as fclaws: BEGINNING at a point on the Southerly tine of the parcel of land described in the Deed from Thomas B. Deffebach. et aI. to PlliI F. R<. .h...~n. et ai. reconled January 14. 1947 in Book 538 of Official Records. e:: "-.'J:'; e e , ..'''. ..,', !lARIJI ~ OUICUL lll!ClliIIllS . lit Page 409. Marin County Records. at1he _Nonh_....llo.ltttenninusof1he course set forth in said Deed .. -South 600 43' East 18.00 ~ and IWIIW>g __ along said Southerly Iin8 the following coursas _ At..~: SOUTH 600 43' East 18.00 feel. __ along the an: of. cwveto the left having B radius of 80 feet, for .. oLtaolCll of 99.69 feet; tI-.ence Nortto 470 53' East 7.70 feet; 1benca along the arc of a curve to the right ' ,hIMng . .-. of 60 feet. for a ~~ at 73.70 ~ -.I u-.ce South 61 ~ 44' East 21.33 feet to a paint on the ""'d._~1lc<I., ... at 1he County R<..a Ibadio... fnm> P....dba Cove to Tiburon. PARCH. FOUR: AlII E,$S -rr .-Mar r91t at...., _ _ forth .. the An.....dt.d ~....nt #'33-"31;4 daIed May 14. 1970, at the ~ Court... the County at Marin, over the -F1_tr .""".~ to as lane- and "Reserve Beach- -.I -PIn. r.... Lot 4-;as the same ie bal__. ...ua.. ...... _to lDts 13 and 14, shown on that cenain ~....aidbd. -..... at P.....s- Cove~'" - :. ~. Marin County. Cait.-, re=tded I\Iovember 16, 1939 in IIaGI< 5 of ......., lit Pa!ie 81. Marin County RecanIs.. A Certified copy of said An-_.do.d ~......lt __ re=odl>d May n. 1978 in BooI< 3378 of Officiai Re=rtIs, lit Page 601, Marin County Records. e e e ALL-PURPOSE ACKNOWLEDGEMENT State of California } County of ,4 M IAi SS, _ On UJ/L /1-, ~OJ.. ~efore me, ' fh /r)J[ CIl;:;/l/E. )/'1-('017 personar:::!:r~D~rb' Ate d uf ('~ d.~ ,,,,,,", Sll::\ERISJ o personally known to me ~d to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signalUres(s) on the instrument the person(s). or the entity upon behalf of which the personls) acted. execuccd the instrument. - OR - .l.~DIANE CRANE IACDPI ~ - Comm, # 1286660 UJ. '" NOTARYPUBlIC,CAlIFORNIA III . Marin County - My Comm. Expires Dec. 8. 2004 .... OPTIONAL INFORMATION Th~ information below i.... not rC4uireJ by taw. However, it 'i.:ouIJ prevent frauuulent attachm-:nt of [hi.'" acknnwl- edgemt::l1t to an unauthorizcd oO<.:ument. ' CAPA~ITY CLAIMED BY SIGNER (PRINCIPAL) IJY\'NDIVID\;.-\L o CORPOR..\TE OFFICER DESCRIPTION OF ATTACHED DOCUMENT ~y:a~~ TITLE OJY',/~'J:C ~ ~ -f':.~~(jMc;,.,/;(,y DATE~V~~ ~dtJ2- rlTLlOlSI o PART:'<IERIS) o ATTORNEY-IN-FACT o TRUSTEE,S) o GUARDIA:'<I/CONSERVATOR o OTHER; OTHER SIGNER IS REPRESE:'ITING: NAME OF PERSONIS, ()R E",rlTYIIESJ . 1 RIGHT TH\;VIBPRI'JT OF SIGNER is E ~ -; ~ ;2 APi\ jjl}9 V,\LLEY-SIERR.-\. ~oo_)tl~_.\.'/)l) e e e ALL-PURPOSE ACKNOWLEDGEMENT County of On o personally known to me - OR - ~ ~OIANE CRANE IACOPI ~ - Comm, , '286660 00-.1> NOTARYPUBUC,CAlIFORNIA m ~ Mann County ... My Camm. Expjrlll Dec:. 8. 2004 t } 55 /hf}-I1I~ UAtVr .Df(d4"' (fa; I;,\Ot'.\RY, proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized 'capacity(ies). and that by his/her/their signatures(s) on the instrument the pers~n(s). or thc entity upon beh~If of which the pcrson(s) acted. cxccutcd the instrument. OPTIONAL INFORMATION The information belo\v is not r~qtlircJ by law. Howevt.:r. it l.;oulJ .pr~v~nt frauduknt :JJ{~II.;h1llt.:nt of this ~H:kllowl- t:dgcment to :.m unauthorizeJ document. CAPJCITY CLAIMED BY SIGNER (PRINCIPAL) [j"INDIViDUAL o CORPORATE Or-FiCER TITLE1S1 o PARTl'IERISl o ATTORNEY.iN.FACT o TRUSTEEISl o GUARDIAN/CONSERVATOR o OTHER: SIGNER [S REPRESENTING: NAME OF PERSONr$) OR E;'\lTITYIIESI AP:\ 5/99 DESCRIPTION OF ATTACHED DOCUMENT ~ttc:h~ ~J- TITHR TYPE OF DO~ ' iTN~~~9 D~J[~i~~tJ 2-- OTHER RIGHT THUMBPRINT OF SIGNER . . - j " J V,\LLEY.SIERR.\. :<()()..1n~._'.'t11J .,...."'..:: .,....::,:11'"" e e e . ',':, '\'" APNNO.58-091-05 Recording Requested By: , TOWN OF TffiURON Return to: Planning Director Town ofTiburon 1505 Tiburon Blvd, Tiburon, CA 94920 This document is for the benefit of the Town ofTiburon, DOCUMENT TITLE AGREEMENT REGARDING ANNEXATION OF REAL PROPERTY COMMONLY KNOWN AS 17 TEABERR Y LANE TO THE TOWN OF TffiURON EXHIBIT NO.~ e :' ': ~- " ,:, AGREEMENT REGARDING ANNEXATION OF REAL PROPERTY TO THE TOWN OF TffiURON This Agreement is made and entered into this 19th day of June, 2002 by and between the Town ofTiburon, a municipal corporation, ("Town" hereafter)'and James A. Radu and Donna A Radu ("Owner" hereafter) and is based upon the following facts: (a) (b) (c) e ~ . '..- -.. Owner holds title to that certain real property ("the Property" hereafter) described in Exhibit U A" attached hereto and shown for illustrative purposes only on the' attached Exhibit "B"; and Owner desires to connect to the public sewer system provided by Sanitary District No.5. As a result of the Marin Local Agency Formation Commission (LAFCO) dual annexation policy, Owner would be required to annex to the Town of Tiburon concurrently with annexation to the Sanitary District unless the policy is waived, Town recognizes that at this time, annexation of this non-contiguous property would result in inefficient provision of Town services to the property, but that at some point in the future, the Town may desire annexation, The Town has agreed to defer annexation of the Property and recommend such to the Local Agency Formation Commission on the conditions set forth in this Agreement. NOW, THEREFORE, IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS: I. Owner agrees on behalf of himself, his heirs, successors and assigns that, in the event any future proceedings for the annexation of the property to the Town shall be initiated by the Town, Owner shall neither directly nor indirectly oppose or protest such annexation, 2. Owner agrees that his obligations hereunder shall run with the Property and that the Property shall be held, conveyed, hypothecated, encumbered, leased, rented, used and occupied subject to the provisions of this Agreement and that the obligations undertaken by Owner hereunder shall be binding on all parties having or acquiring any right, title, or interest in the Property. e 2 e .-:'. ,; .,\ ~... ," e " .:,.';.>,-;;,~ " ,Donna '.:,', ", > TOWN OF TffiURON: By: ATTEST: By: Alex McIntyre, Town Manager Diane Crane Iacopi, Town Clerk APPROVED AS TO FORM: By: ......,'-....., . ." Ann R. Danforth, Town Attorney Attachments: Exhibits "A" and "B". ,.-. h". ",,' 17 teabcrry annex.doc 3 e e e ;... .0( " ) ,HJiBIT '--.' - (:.~.r~ . , ( "A" DESCRIPTION All that certain real property situate in the City of Tiburon, County of Marin, State of California, and is described as follows: PARCEL ONE: Beginning at an angle point in the Northwesterly line of the County Road, known as Tiburon Boulevard, formed by the two courses "South 46' 12' West 71.14 feet and South 41' 50' West 85,39 feet" and running thence along said road line, South 41' 50' West 85,39 feet and South 29' 28' West 72.25 feet; thence leaving Tiburon Boulevard, North 55' 38' West 281,986 feet to the center line of a 40 foot road right of way; thence along said center line on a curve to the right whose center bears North 78' 36' 10" West and whose radius is 80 feet, distance 14,153 feet; thence South 21' 32' West 145.586 feet; thence South 55' 38' East 107,508 feet; thence North 34' 22' East 155.4 feet; thence North 55' 38' West 144,186 feet to the point of beginning, PARCEL TWO: Beginning at a point in the center line of a 40 foot road right of way, said point being the Southwesterly corner of Parcel Two, in that certain Deed from Hugh J, Downey"et ux to Robert G. Cruickshank, et ux, recorded July 25, 1957 in Book 1130 of Official Records at Page 380, Marin County Records; thence along said center line on a curve to the left whose center bears North 78' 36' 10' West and whose radius is 80 feet, a distance of 42,896 feet and North 19' 19' 30" West 15,847 feet; thence leaving said road center line, North 86' East 24,39 feet and South 27' 14' 43" East 121,511 feet to a point on the Southerly line of the lot conveyed to Cruickshank above referred to; thence running along said Southerly line, North 55' 38" West 86,967 feet to the point of beginning, PARceL THReE: A right of way for road purposes over and across the existing roadways, 40 feet wide; running from the above described property to the County Road, PARCEL FOUR; An easement in or right to use the property referred to as "Reserved Beach" and "Lane" as described by that certain Amended Judgment of Quiet Title under Marin Superior Court Case No, 33364, recorded May 25, 1978 in Book 3378 of Official Records at Page 601, Marin County Records and more particularly described as follows: Beginning on the Northerly line of Paradise Drive at the Easterly line of the "Lane" through Lot 14, as shown upon that certain Map entitled "Map of Paradise Cove Subdivision", filed for record November 16, 1939 in Volume 5 of Maps, at Page 81, Marin County Records; thence along said lane, North 27' 34' east 228,04 feet and North 0' 45' West 215,63 feet; thence North 62' 45' East 58.91 feet; thence North 27' 15' West, 47 feet, thence South 62' 45' West, 33.45 feet; thence North 164,87 feet; thence South 84' West 60,33 feet; thence South 188.1 feet; thence North 89' 45' West, 100 feet; thence South 0' 15' East 47 feet; thence South 89' 45' East, 111.28 feet; thence North 62' 45' East 30.63 feet, thence South 0' 45' East 200,61 feet; thence South 27' 34' West 205,11 feet; thence South 61' 19' West, 103,24 feet t9 the Northerly line of Paradise Drive; thence Easterly along said Northerly line to the point of beginning, i/ e ',,'."1<.1 ...'~ o bf i5 ~ ~ e e - 2 2 ""- .... 0 II . ""- lLJ -.J 0 U CI) ,S.Oi:{' ~OO'9{',.OS a '0 C'\j ., ~.. ,,- "'l'l ~~ o ~~ liB" EXHIBIT C"l o o C"l - C"l C"l -l 0::: n.. <( a o .... 'i '5 \ ~ .~-\ ,:fI, 0- ~ &/ ,I I ., .. !;;: ~'i' 'f8 ;/~ 61}- ':0, . , e e e .........,-, ALL-PURPOSE ACKNOWLEDGEMENT State of California At H/;1/ Cf ~o~c ...,...__'A_. }ss LtJO'Z- before me ' I?? A-}/E C/(Ail/E , IJdfi/Ald- /J .1411J SIG"<ER,SI County of On personally appeared o personally known to me - OR - l@DIANE CRANE IACDPI ~ -. Comm, # 1286660 UJ' Ai NO,^RY'U811C,CAlIfORNIA (J) ~ Mann COllnlV - M... Comm. rrxpirlS Dec. 8, 2004 ... I.'OT.\RYJ :L;1('()~ 0-1lroved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. .'.;lH.\R'l S.'iltj,\',\I'LRL OPTIONAL INFORMATION The information below is not required by law. However. it could pr~vent frauduient ;J.tt;lchmcnl of this acknowl- edgement to an unauthorized documenr. CAPACITY CLAIMED BY SIGNER (PRINCIPAL) ~VlDl!AL o CORPORATE OFFICER TITlE1Sl o PARTNERISI o ATTORNEY. iN-FACT o TRUSTEEiS) o GUARDIAN/CONSERVATOR 0' OTHER: SIGNER IS REI'RESENTING: NAME OF PERSONI51 OR P.NTITYlIESI AP.\5jt}4 DESCRIPTION OF ATTACHED DOCUMENT ~Jk4~ ~ TITLE OR TYPE OF DOCUMENT J f-F~ 4~~ NUMBER OF PAGES ~ r;t .21),1 L- DArE OF dOCUMENT OTHER RIGHT THUMBPRINT 'OF SIGNER . ~ " ii ~ g " ~ oS VALLEY-SIERRA. XO(J-3o~-.\311'1 .... e e .......;.... e ."" or- .4""'_-'-'. ALL-PURPOSE ACKNOWLEDGEMENT State of Cali fomi a: , J County of A Iti( (IV On Cf~ll/ personally appeared .L.tJ01.. before me, ~;q.~.BJ o personally known to me - OR - ~~DIANE CRANE IACOPI ~ - Comm, # 1286660 lJl Ul' . NOTARY PUBUC,CALlFORNIA . MllinCounty - ~ My Comm. Elpilll D.c. 8. 2004 r , }ss. o A-A/t CMt1/E IAcd/Z Jl . ~ /f tJ cJ "'''\KY, SI<.;",ERISI ~ed to me on the basis of satisfactory evidence to be the person(s) whose namc(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same In his/her/their authorized capacity(iesl. and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. W[TNE~~~~. Sl)I.\RY'SSll0;,\Tl.RE OPTIONAL INFORMATION The information below is not required by taw. However. it could prevent fraudulent attachment of this a\..:knowl- edgemem to an unauthorized document. CAPACITY CLAIMED BY SIGNER (PRINCIPAL) ~IDUAL o CORPORATE OFFICER "nTLE.\S\ o PARTNER(S) o ATTORNEY-iN-FACT o TRUSTEEIS) o GUARDIAN/CONSERVATOR o OTHER: SIGNER IS REPRESDITING: NA.\1EOF PERSON(S) OR E~TrTY(IESI APAS/99 DESCRIPTION OF ATTACHED DOCUMENT ~~M~ ~/- TITLE OR TYPE OF DOCUMENT J- r [~ Jr r--(; NUMBER OF PAGES ~F[!~~~~Z- arHER RIGHT THUMBPRINT OF SIGNER " '" ~ c "- ~ ~ " ~ '" VALLEY-SIERRA. MlXJ-362-J:3flQ e . e ( " APNNO.58-051-16 ..", . ".,..,'.' , Reco[di~g RequestedBy: . ". .. . ~, '. ....... ". ," '- . '.,:<:"":;:, TOWN OF TIBURON , Return to: Planning Director Town ofTiburon 1505 Tiburon Blvd, Tiburon, CA 94920 " ," _,r;. .' . " . . .:,;;~'- ," This.document is for the benefit of the Town ofTiburon. DOCUMENT TITLE AGREEl\IlENT REGARDING AL'lNEXATION OF REAL PROPERTY COMMONL Y KNOWN AS 3330 PARADISE DRIVE", " TO TEE TO)VN OF TffiU~ROt' '....,.. . R.YTU~!T NO.~ -.".' e AGREE?vIENT REGARDING ANNEXATION OF REAL PROPERTY TO THE TOWN OF TffiURON , This Agreement is made and entered into this 19th day ofJune, 2002 by and between the ,TownofTiburon, a municipal corporation, ("Town" hereafter) and Douglas K Ivey ("Owner" hereafter) and is based upon the following facts: (a) 'Owner holds title to that certain real property ("the Property" hereafter) described in Exhibit "A" attached hereto and shown for illustrative purposes only on the attached Exhibit "B"; and ~i.", '. ~, -,~:\; :'(b) Owner desires to connect to the public sewer system provided by Sanitary District NO.5, As a result of the Marin Local Agency Formation Commission (LAFCO) dual annexation policy, Owner would be required to annex to the Town of Tiburon concurrently with annexation to the Sanitary District unless the policy is waived, Town recognizes that at this time, annexation of this non-contiguous property would result in inefficient provision of Town services to the property, but that at some point in the future, the Town may desire annexation, . (c) The Town has agreed to defer annexation of the Propeny and recommend such to " the Local Agency Formation Commission on the conditions set fonh in this Agreement, NOW, THEREFORE, IT IS HEREBY AGREED BY Ai'iD BETWEEN THE PARTIES HERETO AS FOLLOWS 1. Owner agrees on behalf of himself, his heirs, successors and assigns that, in the event any future proceedings for the annexation of the property to the Town shall be initiated by the Town, Owner shall neither directly nor indirectly oppose or protest such annexation. -~,'.' ,,-, 2. Owner agrees that his obligations hereunder shall run with the Property and that the Property shall be held, conveyed, hypothecated, encumbered, leased, rented, used and occupied subject to the provisions of this Agreement and that the obligations undertaken by Owner hereunder shall be binding on all parties having or acquiring any right, title, or interest in the Property, e 2 e'~ .....~~ Douglas K. ::'1:( ":,. , ';, OWNER: '. ~.' ,,'-' -, ',' TOWN OF TffiURON: e By: ., Alex McIntYre, TOwn Manager ATTEST: By: Diane Crane Iacopi, Town Clerk -.,:/;i~;~~\0~~~~'~~:~ :':;~;':~;-;:..:,..,.: '.' "" ." . .,,~, ,<",., ":,",':,' '''',::>'APPROVED AS TO FORtV' '~"';.:J':'~,.'rF.-' -. ,'-'.,. .... By: " ~., .'"\ ..' ..' Ann R. Danforth, Town Attorney, Attachments: Exhibits "A" and "B". e '.,,1 " ").. '".,",' 3330 pllt:ldisc :1nnex .doc 3 ,CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT, I' I' ".' C'aJk-+D\~o. County of ~ .cwd::ro... .e.nsto- On .j\lQv 17( 'd-0Od-. before me, \ Data Name and nus of Officer (e.g.. "Jane 't)Ot.Ls \D-S \<., ~I~~') , 0 personally known to me - OR - }j=j3roved to me on the basis of satisfactory evide~ce to be the persony.l' , ( " whose name(~ is/al'e subscribed to the within instrument and acknowledged to me that hei.hgl.thg~' executed the , same in hisiRelfll'l6ir authorized capacity(ieer. and that by , hislRsr.'tReir signature!s}on the instrument the person~ , or the entity upon behalf of which the person(~acted, executed the instrument. . \-\~ \ ) .,Slateof personally appeared (, I I I ~ l'ij ,~ ::$ '~da ,~ ~ ~ Signature 0' Notary Publlc ~ ~ OPTIONAL ~ ~ Though the information below is not required by law. it may prove valuable to persons relying on the document and could prevent ~,',~ ~ fraudulent removal and reaffachment of this form to another document, ' ~ _~I"..Descri~tion of Attached Document I ~, Title or Type of Document: ~ ~ ~ 10'i, ',~ ?'i Document Date: Number of Pages: ,;) 1",,'1,:, ~Signer(S) Other Than Named Above: ~ ~ ~ @ Capacity(ies) Claimed by Signer(s) ~ , ~ Signer's Name: Signer's Name: ~ ,I~ ~" ~ 0 Individual 0 Individual " ,~ 0' Corporate Officer 0 Corporate Officer @ ~ Title(s): Title(s): I ~ 0 Partner - 0 Limited 0 General 0 Partner - 0 Limited 0 GeneralJ ~ 0 Attorney.in.Fact 0 Attorney-in-Fact ~'.':I ~ 0 Trustee 0 Trustee ~ 0 Guardian or Conservator O' 0 Guardian or Conservator ~ 0 Other: Top of Ihumb hee. 0 Other: Top of thumb he'e ~' ~ ~ ~~'I,',.I, ~ Signer Is Representing: Signer Is Representing: Iii: ~ ~ ~ ~ e~ ~' ~ I ~~~~~(<<<<'<2-Z.~~~g~"('~~~<<'G~~~'Q.;.'G<::~~<<~~~-g:.~;g;~~Z;-:'Q3.~-g:..~:g:'<X.~~~'C<:.~~g~<:;;;x-qR 10 1995 ~Jalianill NOlary A~~aclahan' 8:36 Remmel Ave.. P.O. Box 7184' Canoga P<lfX. CA 91309.7184 Prod. No. 5907 Rl'IOIoer: Call TolI.free 1-800-876-6821 [, l@" - Z.~.~~c" -I Commission # 1325766 j' Notary Public -Califcmi3, .. ~ , f Cont", Cosla County . f ' My Corml, F"'llires Oct 18, 2005 ------------ WiTNESS my hand and official seal. I' 1 ;, , I, ".." , EXHIBIT ~A" e -' All that certain real property situated in the County of Marin, Slate of California described as follows: '. Beginning at the southwesterly corner of Lot 12 as shown on that certain map entitled Map of Paradise Cove, Marin County, California, filed for record in Volume 5 of Record Maps at Page 81, Malin County Records; thence along the northerly right of way of Paradise Drive (5RM81) and the boundary of SanitarY District No. 5;North 680ITOO"West, 105.85 feet, thence continUing along said northerly right of way (5RM81) and said boundary of Sanitary District No.5, along a curve to the right having a , radius of 54.17 feet, through a central angle 'Of 40055'38", an arc length of 38.69 feet; thence leaving said northerly right ofway(5RM81) and boundary of the Sanitary District No.5, North I 9024' 15"East, 607.52 feet; thence South30.00'00"East, 166.32 feet to the northwest comer of Lot 12(5RM81) and said boundary of Sanitary District No.5; thence along said westerly boundary of Lot 12( 5RJ.'v181) and said boundary of Sanitary District No, 5, South06009'00"West, 522.93 feet to the point of beginning. Contains 1.55 acres more or less. . . ,~ :~'li;ll:~~I;!jt -",,"..' _P',.' " ., -'-,:' !;',t.;L',.;.;" '_'_~_L.,."_~':.,,:: _e' ','. .;.. ~.~;~~fi~~'"<,, ''''V~~q:,"l.'''-,,",l-', .. ..f ,'" '~~~;Z~{~~1)~i~;~}1:~1:jj'~~~j<~~\:i~~\,:,;':, :.. " iljftrilii~ .'!f~~~~~~~Irj""'~Y;':>!:"::\:~:"I!(' . I I +i:;':l~~?~~~~~l' " ".," . ;':'~ ',' , ," :;p. " ,- ;,:'\1 'or ,,,I J '... ,,-,,~,,_~.,,,,,,,,,~,,,.., ~'-C,' " ';:~+j'/"/ . . : ':"-. ~ ',. . '/ '.!'.-' "-.. . .:....... " -. ',. , c'(:;'?:'." ...... ,.' .~ ,...;::~~*t!t~);:i":".,,', .,',". '._- ',:.. EXHIBrr:~~~~'" , :' -;\. '.,-:_~',;._:<~',::,:..: . ,- ""_"'"0" .'_' ...,.c--":....... ~. .;" ',' .'. 0.:.- ",;- ~.' . ~:)F,~~<,"" .~. ,-' ;-C-',',,' .~",;, ~.. . ~~ ,: ~ :j~)~:~.::~.r.~:;:.. ::.. I: '..'~~j;~;;\ . .-'. ~, ,.',' "'T'.."" "'.,--'- .'" ;.::i:,:~i;~~~~~::~~ t_~':., ".,.... .:" :... '" . '" . -'" . '" ~ ,..... . 0 g", ;z A.P.N. 58-05-16 ~ 8M . cr. gcti .(\J :glfl '" '.'... 3330 ,".ON'. :-; ~~~.;:.::..:'i{.F;::~~}::. _;,..~; 'J. ~: .;;ji~~<~'i'::;:..:;~ '. .....'..,. .......;...." "';,-,::,,;.-;-,.:..; ;,::.:~~~~~%f;; , .::,":. ,"~S~;;~.~~f~,;,,' , I I , . '~~;~:;fi:!~:';:- ;'.~.' ,;:S8S'45'00'E 155.10' (' & ~ too' o L.~':" : 100' o " SCALE1n=100' /YOl]' ;", , I;>., ~~/S~OS.l];O'"" Dt;>ilIt e PCB JANUARY 25. .-._~-- --'--.-. 200' , 2002 Ci[yof ROHN~RI e City Council Armando F. Flores Mayor James J. Reilly. Jr. Vf=eMa;~ Jake Mackenzie VICki Vidak.Martinez CouncilmembelS Joseph 0, Netter City Manager e e Z/eflL!1J(). rCd} f6)~@~~w~rm m1 AUG - 2 2002 W TOWN ATTORNEY'S OFFiCe TOWN OF TIBURON August I, 2002 RE: Request to Join Amicus Brief: Important Proposition 218 Case Richmond v. Shasta Community Services District Dear California City Attorney: The Legal Advocacy Committee of the League ofCalifurnia Cities has authorized filing an amicus curiae brief in the appeal of Richmond v. Shasta Community Services District. I write to request that you join the brief that will be filed with the California Supreme Court in this important Proposition 218 case, The case ,involves the following issues of importance to all California cities: . The meaning of the development fee exemption in Proposition 218; . The application of Proposition 218 to water connection fees; . The types of assessments that are covered by Proposition 218; and . The application of Proposition 218 to fees adopted prior to July 1,1997 that have been neither extended nor increased since that date. The Shasta Community Services District adopted awater connection fee to fund certain capital improvements necessary to expand the District's facilities for new users. The District imposed the fee as a condition of development. The District's .--__, water connection fee had three component parts, . Of the three, the fire suppression charge and a water connection charge were chailenged, l'vlr. Richmond challenged the water connection charge component as an unlawful Proposition 218 assessment; and the fire suppression component as an unlawful fee for general governmental services, The District argued that the connection charge was a development fee within the meaning of Proposition 2I8's exemption for "fees imposed as a condition of development." The Court of Appeal concluded that the water connection component of the fee was not an assessment subject to Proposition 218, but rejected the District's argument because the fee was in effect prior to the adoption of Proposition 218, The Court invalidated the fire suppression component of the fee pursuant to the provision of Proposition 218 that prohibits local governments from imposing a property-related fee to fund general governmental services, such as fire 6750 Ccxnmerce Boulevard. Rohnert Park CA. 94928-2486. (707) 588-2226. Fax (707) 588-2263 WMV,rpcity,org 1 e suppression.l All development fees adopted prior to November 1996 are put at risk by the Court of Appeal's decision. ' Michael Colantuono of Colantuono, Levin, and Rozell, is representing the Shasta Community Services District in its appeal to the Supreme Court. The District's brief explains that: (I) The water connection charge is not an "assessment" because it is not imposed on the basis of special benefit to real property; (2) The water connection charge is a development fee that is specifically exempted from Proposition 218; and (3) although not favored by the District, if the Court chooses to analyze the water connection charge by dividing into its component parts, the fire suppression component is an exempt development fee and/or, a fee that is not otherwise subject to Proposition 218 because it was adopted prior to July 1, 1997 and has not been increased or extended since that date. e The amicus curiae brief will support the District's brief by (I) emphasizing that a wide spectrum of California local governments (including cities, counties, water districts, community services districts, and fire districts) impose connection charges to defray the cost of expanding capital infrastructure to serve new development; (2) reviewing the law relating to the imposition of development fees and the basis for the development fee exemption in Proposition 218; and (3) reminding the Court that Proposition 218 only applies to a specific subset offees, charges and assessments: fees that are "property-related" and assessments on real property based upon special benefit. This third section of the brief will set forth the differences and distinctions between the variety of types of fees and assessments imposed by local governments, The County Counsels Association, the Association ofCalifomia Water Agencies, and the California Special Districts Association have agreed to join in the amicus curiae brief I urge you to do the same by returning the enclosed form no later than August 20, 2002, Thank you for your consideration. If you have any questions, or need additional information, please do not hesitate to call. Sincerely, b~~ City Attorney City of Rohnert Park munilaw@aol.com c: Michael Colantuono Alisa Fong e 1 CatConst. art. XIIID, Section 6(b)(5), 2 e . . u~ }/o.1 (1) JENKINS & HOGIN, LLP ALA W PARTNERSHIP MICHAEL JENKINS CHRISTI HOGIN GREGG KOVACEVICH AUG 1 2 2002 ~ ~ TOWN ATTOF1Nt:V'S OFFICIO TOWN OF Tlil.lAON MANHATIANTOWERS 1230 ROSECRANS AVENUE, SUITE 110 MANHATIAN BEACH, CALIFORNIA 90266 (310)643-8448 . FAX (310) 643-8441 WWW.LOCALGovLAW.COM o WRITER'S EMAIL ADDRESS: CHOGIN@LoCALGovLAW.COM August 8, 2002 Re: Request to Join Amicus Brief Defending Applicability of Local Zoning to Water District Owned Property - Topsail Court Homeowners Association v, Soquel Creek Water District, et aI, Dear California City Attorney: I am writing on behalf of the League of California Cities to requcst your support for the amicus brief that will soon be filcd with the California Supremc Court in the above-entitled action, At issue in this case is whcther watcr treatment facilities are excmpt from local building and zoning ordinances under Governmcnt Code 9 53091. That scction reads, in pcrtinent part: ...Building ordinances of a county or city shall not apply to the location or construction of facilities for the production, generation, storage, or transmission of watcr, wastewater... ...Zoning ordinances of a county or city shall not apply to thc location or construction of facilities for the production, gcneration, storage, or transmission of water.... The case, Topsail Court Homeowners Assn. V. County of Santa Cruz (2002) 95 Cal. App.4th 835, 116 Cal.Rptr.2d 145, arose after Soquel Creek Water District (SCWD) purchased a lot in a four-parcel, single-family residential subdivision where it sought to construct a well along with a treatmcnt plant that would remove contaminants from the extracted ground water. When the County of Santa Cruz rcfused to apply its building and zoning ordinances to the proposed project, the homeowncrs association filed the underlying action. August 8, 2002 e Page 2 Noting that the Legislature failed to exempt "treatment" facilities in section 53091, the Appellatc Court correctly applied standard rules of statutory construction and concluded that it was the duty of thc court to construe strictly the exccptions that did appear in the statute. ,Because onlya liberal intcrpretation ofthe language would have permitted the court to conclude 'that the section 53091 exemptions included water treatment facilitics, thc court refused to accept the water district's position. Thc potential implications of a reversal in this case arc enormous. If the Supreme Court accepts thc Water District's position, there would be no mechanism to prcvent water districts from placing large centralized facilities wherever they choose. While the WatcrDistrict relies heavily on the argument that co-location of wells and treatment facilities is an economic necessity, a blankct exemption would not only afford districts the opportunity to co-locate such facilities, but would also allow for the construction of large ccntralized facilities in any area, regardless of economic considerations. e The amicus brief argues (I) that thc statutory construction urged by the Water District would require an expansion of the language beyond what thc Legislature logically intcnded; (2) that the construction of section 53091 urged by the Water District would lead to absurd results and run contrary to established principles of statutory construction; (3) that the Legislaturc has not indicated that water treatment facilities must be placed in the most cost-efficient location at the expense of the local govcrnment's authority to formulate and implement its own land use policies; (4) that the Water District's economic efficiency argument is illusory; and (5) that the legislative history demonstratcs thc Legislature's intent to solidify local zoning control through section 53091. The League of California Cities urges you to join in our effort to defend local governments' just authority in this vcry sensitive area. If you would like to add your city's name to the brief, plcase complcte the enclosed authorization and fax it to (310) 643-8441 by August 15,2002, Thank YOll very much for your anticipated support. Very truly yours, Cfbij~ e T~;(/o. C/CC) e DONALD R, LINCOLN KENNETH C. TIlREK HENRY E, HEATER DAVID SEMELSBERGER JAMES C. ALLEN LINDA B. REICH ERIN M, WINDSOR KJMBERL Y K, HARRIS ENDEMAN, LINCOLN, TUREK & HEATERLLP ATTORNEYS AT LAW 600 "B" STREET, SUITE 2400 SAN DIEGO, CALIFORNIA 92101-4582 TELEPHONE (619) 544.0123 FACSIMILE (619)544.9110 WEB SITE www.dthlaw,COlll OF COUNSEL RONALD L ENDEMAN August 8, 2002 EMAIL dlincoln@elthlaw.com ATTENTION ALL CITIES! This Case Could Severely Impact Your Ability to Plan Projects Ann R. Danforth, Town Attorney 1505 Tiburon Blvd. Tiburon, CA '94920 1o)~@~~W~\m lffi AUB 1 nM2 W ,oWN ATIO.RkE'N; bFFI~li iOWN of. rlBtJRflN e Re: Border Business Park, Inc. v. City of San Diego, California Court of Appeal, Fourth Appellate District, Division One, No. D039225 Dear City Attorney: The Legal Advocacy Committee of the League of California Cities has approved the preparation of an Amicus Brief in support of the City of San Diego ("San Diego") in the above-entitled case. In addition, the League is urging other cities to join in on that brief. 1, and other members of my firm, will be drafting the Amicus Brief and request that your City join in that Brief due to the issues of major significance to all California Cities. Case Summary This is an appeal from a state Trial Court ruling which found San Diego liable for approximately $100 million in damages for inverse condemnation based on (1) San Diego's activities relating to its planning for a possible international airport to be located near the property owner's property, and (2) San Diego's activities relating to the re-routing of commercial truck traffic onto public streets adjacent to the property owner's property in order to reach a federal border crossing. e e e e City Attorney August 8, 2002 Page 2 In 1983 Plaintiff Border Business Park, Inc. ("Border B.P.") purchased 320 acres of undeveloped land in Otay Mesa, a rural area south of San Diego and adjacent to the Mexican border. Border B.P. planned to develop 312 acres into an industrial business park. On October 16, 1986, Border B.P. and San Diego entered into a Development Agreement. On September 22, 1995, Border B.P, filed suit in the San Diego Superior Court aIleging that San Diego had breached the 1986 Development Agreement and engaged in other conduct that was so disruptive that it amounted to unconstitutional taking of its property. SpecificaIly, Border B. P. claimed that San Diego had acted "recklessly" by publicly investigating a proposal to build a new international airport in the Otay Mesa area without first taking appropriate steps to verify that th~ project was viable. The Trial Court agreed finding that San Diego was liable under inverse condemnation law for temporarily diminishing the marketability of Border B.P.'s property. In addition, the Trial Court ruled that San Diego was also liable under inverse condemnation law for exacerbating the traffic near Border B.P.'s property by re-routing commercial truck traffic onto adjacent public streets in order to reach a federal border crossing. The jury found that San Diego had breached the Development Agreement, and awarded $29.2 million in damages for "breach of contract," $25.5 million for the airport planning "taking," and $39.8 for the traffic diversion "taking." After the verdict, the Trial Judge recused himself. The case was transferred to a new Judge, who ordered a new trial on the "breach of contract" cause of action. The Court, however, denied San Diego's Motion for a New Trial or Judgment NOY on the portion of the Judgment dealing with its liability for inverse condemnation. With interest, this remaining portion of the Judgment against San Diego exceeds $91 million. Issues of Maior Sh!nificance to California Municipalities Statewide The issucs raised in this case are important to all California municipalities. As to the first issue, all that occurred was the planning and the study of a proposed airport which "could" have impacted Border B.P.'s property if the airport project had proceeded forward. San Diego never passed a formal resolution or took other procedural steps to condemn the property. 1fthe Trial Court decision stands, the ability of cities to engage in municipal planning and studies could be seriously impaired. The issue involving the truck traffic arose after the federal government diverted all commercial truck traffic from the existing San Y sidro border crossing to the new Otay Mesa border crossing. Because San Diego had jurisdiction over the public streets leading to the new Otay Mesa border crossing, San Diego was forced to quickly determine the best method of redirecting this truck traffic. After considering all feasible alternatives, e e e City Attorney August 8, 2002 Page 3 San Diego determined the best alternative was to use a street adjacent to Border B.P.'s property. Border B.P. was never denied access to its property. San Diego's decision merely increased traffic along the adjacent street. If the Trial Court decision stands, every city could be at risk for inverse condemnation damages every time it changes traffic patterns. Even more important than the two specific issues discussed in the Trial Court ruling this case potentially impacts broader legal questions about a City's liability for adverse impacts on private property where no physical invasion has occurred. The Amicus Brief The primary purpose of the Amicus Brief will be to explain to the Court of Appeal the potential impact its decision will have on the actions of municipalities throughout California. It will also discuss the legal standards a Court should use in determining whether a municipality is liable under inverse condemnation when its actions or inactions have adverse impacts on private property where no physical invasion has occurred. San Diego's Appellant's Opening Brief was filed on June 24, 2002. Border B.P.'s Respondent's Brief is currently due by September 23, 2002. We are planning to file the Amicus Brief after the filing of Border B.P.'s Brief, or at approximately the same time as San Diego's Reply Brief is filed, If you have any questions concerning the case or the position to be taken in the Amicus Brief, please call me. We would be happy to provide you .with a copy of San Diego's Opening Brief on Appeal if you believe it would be helpful in making your decision as to whether or not to join in the Amicus Brief. If you do agree to join in this Amicus Brief, please send me an Authorization of Representation, which includes your state bar number, as soon as possible, c/L Donald R. Lincoln DRL/mrs e MICHAEL M. POLLAK SCOTT J. VIOA GIRARD FISHER. DANIEL P. BARER. JUDY L. McKELVEY REBECCA E. ORLOFF ANNA L. B1Re>>SAUM WILLIAM L. BATTlES POLLAK, VIDA & FISHER If~ JJo. y (d) (~) ATTORNEYS AT LAW 1801 CENTURY PARK EAST 26TH FLOOR LOS ANGELES, CALIFORNIA 90067.2343 TELEPHONE (310) 551-3400 FAX (310) 551-1036 E-MAIL law@pvandf.com INTERNET www.pvandf.com . CEIlTIFIEDspeCI...LIST....PPELL...TEL...W STATE OAIl OF CALIFORNIA 80ARO OF LEClAL SPECIALIZATION August 9,2002 fD)~~~~w~rm lffi AU G 1 2 2002 l!}J TOWN ATIOf.lN!5Y'S d~I'ICe tOWN Qf! tlB4ReN OF COUNSEL: MICHAEL R. NEBENZAHL Ann R. Danforth Town Attclrney 1505 Tiburon Blvd. Tiburon, CA 94920 IMMEDlA IE A TIENTION REOUESTED Re: Request for Participation in California Supreme Court Amicus Brief and United States Supreme Court Amicus Brief Eastburn v, Regional Fire Protection Authority California Supreme Court No. S 107792 Chavez v. Martinez U.S. Supreme Court No. 01-1444 . Dear Ms. Danforth: I write to ask your city to join in two amicus briefs that we are preparing on behalf of California's Cities: . Eastburn, pending in the California Supreme Court; and . Chavez, pending in the United Stales Supreme Court. The League of California Cities has asked our firm to prepare both briefs. I will write the Eastburn brief. My partner, Girard Fisher, will wrote the Chavez brief. The League does not submit amicus briefs in its own name. Instead, it encourages individual cities to lend their names. Therefore, we are asking all California cities to join as amici. . THE CHA VEZ BRIEF IS DUE SEPTEMBER 5. 2002. PLEASE RESPOND BY FAX (310-551-1036) NO LATER THAN WEDNESDAY. AUGUST 28,2002. e e e THE CASES Eastburn v. Regional Fire Protection Authority Minor plaintiff Felicia Eastburn was electrocuted while taking a bath. Her parents called 911. Plaintiffs allege that the 911 dispatcher delayed in sending emergency services to the scene, exacerbating Felicia's injuries. They sue the public entity dispatcher (the Regional Fire Protection Authority) and the City ofVictorville for failing to send help earlier. The trial court threw the case out on demurrer. It found that the defendants owed no duty to the plaintiffs. In a published opinion7, the appellate court affirmed. It held that the plaintiffs COuld not sue thecntity for proviGing inadequatc service; and thai Health & Safety Code section 1799.107 (which immunizes "emergency personnel" from liability unless they are grossly negligent or act in bad faith) applies to 911 operators. On both points it expressly disagreed with a case from another California appellate court, Ma v, City and County of San Francisco (2002) 95 CaLApp.4th 488 [115 Cal.Rptr.2d 544]. On July 31, 2002, the California Supreme granted review in Eastburn, to decide the split in authority between Eastburn and Ma. Eastburn poses these core issues: . Government Code section 815(a) says that public entities cannot be held liable except by statute. No statute holds public entities directly liable for providing 911 emergency dispatch services negligently. Nevertheless, does a public entity enter into a "special relationship" with each of its constituents requiring it to provide prompt emergency services in response to 911 calls -- and exposing it to liability ifit fails to do so? . Does Health & Safety Code section 1799.107 protect 911 operators and dispatchers from liability (and their public entity employers from vicarious liability) for ordinary negligence? This case will affect the liability of all public entities that provide or participate in 911 dispatch services. Under state law, all public entities must provide or participate in 911 systems. An appellate decision for the plaintiffs would therefore expose every city to suit by any citizen who believes the response to his 911 call was not fast enough. 7 Eastburn v. Regional Fire Protection Authority (2002) 98 Cal.App.4th 426 [119 CaLRptr.2d 655]. e e e Chavez v. Martinez During a scuffle, plaintiff Oliverio Martinez grabbed the investigating officer's gun. A backup officer shot Martinez several times. While Martinez received emergency treatment, defendant Sergeant Chavez interrogated him. Chavez failed to read Martinez his Miranda rights. He continued the interview for over 45 minutes, even though Martinez told him he did not want to talk and complained of extreme pain. In a section 1983 damages case, the District Court found that Chavez's emergency-room interrogation violated Martinez's Fifth and Fourteenth Amendment rights. The Ninth Circuit affirmed. On June 3, 2002 the United States Supreme Court granted review. The Ninth Circuit's Martinez opinion expands cities' liability in two important respects. . The United States Supreme Court has explicitly stated that a Fifth Amendment violation can only occur at tria!.3 Nevertheless, Martinez holds that the very act of coercion triggers liability, even if the statement is never used against defendant.4 . Since the Fifth Amendment is only a trial right, the remedy for its violation is the exclusion of illegally obtained statements from court, not payment of monetary damages.5 Chavez, however, establishes a novel civil remedy for violation of either the Fifth or Fourteenth Amendments.. Under Chavez, an interrogation subject need not suffer palpable legal, physical, or mental harm to successfully sue a city under Section 1983. Even a mere technical violation of Miranda may now result in a substantial damage award. 3 United States v. Verdugo-Urquidez, (1990) 494 U.S.259, 264108 L. Ed. 2d 222 [110 S.Ct. 1056] 4 Martinez v, City of Oxnard (2001) 270 F.3d 852, 857. 5 Withrow v. Williams (1993) 507 U.S. 680, 692 123 L. Ed. 2d 407 [113 S. Ct. 1745]; Martinez, supra. at 856. · Martinez. supra, at 856 n2. e REOUEST It is important to get the cities on board. We want to let the Supreme Courts know that these cases affect every city in California -- and that those cities oppose these attempts to expand their liability. If your city is willing to participate, please complete and return the enclosed authorization to my office. We request that you respond within two weeks of this letter's date. In any event, because the Chavez brief must be filed by September 5, 2002, we request that if you wish to be included in that brief you respond no later than August 28, 2002. Thank you. Very truly yours, POLLAK, VIDA & FISHER ~ ~ DANIELP. BARER e DPB:rp Enclosure e e e e . ~,.'.. Town of Tiburon STAFF REPORT ST2 J D'" . ' .. , ' AGENDA ITEM . . . . . . . . . . . . . . . . . . .. ................. To: From: Subject: MAYOR AND TOWN COUNCIL ANN R. DANFORTH, TOWN ATTORNEY RESPONSE TO REPORT OF MARIN COUNTY GRAND JURY PRESALE INSPECTIONS IN MARIN COUNTY August 21, 2002 Date: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BACKGROUND On May 30, 2002, the Marin County Civil Grand Jury issued a report entitled "Residential Pre-sale Inspections - Should Marin County also Require Them?" As suggested by the title, the Report's primary focus is the County of Marin. However, in the course of its inquiry, the Grand Jury reviewed the existing pre-sale inspection processes of Marin County cities and towns. Several of the Grand Jury's findings and recommendations pertain to those existing process and the Grand Jury has requested 'that we respond to them. By law, our response to Finding Nos, 6, 1 and li and to Recommendation Nos. 2 and 1 is due on August 28, 2002. I have attached the Town's draft response for the Council review and approval. The response is the product of extensive consultation with the Town Building Official. ANALYSIS 1. Grand JUry Findinl!s. Under 9 933.05 of the Penal Code, the Town is required to either state that it (a) agrees with the finding; or (b) disagrees wholly or partially with the finding. In the latter case, we must include an explanation of the portion of the finding that is disputed and include an explanation ofthe reasons therefore. In Finding No, 6, the Report states that, based on a sampling of jurisdictions, actual scope of pre-sale inspections in many jurisdictions appears to bear little relationship to the enabling legislation ofthe local Municipal Code and state law, We do not know ifthe TownofTiburon was one of the sample jurisdictions. However, we believe that the Town's process is firmly grounded in state law and the Town's Municipal Code, as explained in the draft response. In Finding No, 7, the Grand Jury finds that the scope of pre-sale inspections varies widely from jurisdiction to jurisdiction, This frustrates realtors who often work in multiple jurisdictions. We I e e e explained in greater detail in connection with Recommendation No.3, the Town's first concern must be the safety and welfare of persons and property in the Town. In Finding No.8, the Grand Jury found that the costs to perform the inspection/reports appear to be covered by the fees collected (thus the process is relatively neutral) and can be undertaken with minimal staff. The Town agrees with the first half of this statement. However, depending on the activity ofthe real estate market and the thoroughness of the inspections, the inspections and reports can be a time consuming process requiring additional staff. 2. Grand JUry Recommendations. In responding to the Grand Jury's Recommendations, Penal Code 9 933.05 requires the Town to report one of the following actions: (a) The recommendation has been implemented, with a summary regarding the implemented action. (b) The recommendation has not been implemented, but will be implemented in the future, with a timetable for implementation. (c) The recommendation requires further analysis, with an explanation and the scope and parameters of an analysis or study and a timeframe for the matter to be prepared for discussion by the officer or head of the agency or department being investigated or reviewed, including the governing body of the public agency when applicable. This timeframe shall not exceed six months from the date of publication of the Grand Jury Report. (d) The recommendation will not be implemented because it is not warranted or is not reasonable, with an explanation therefor. In Recommendation No.2, the Grand Jury suggests that the Marin County cities and towns have their attorneys review existing practices and code provisions and make any appropriate revisions to the codes or practices of the inspectors, The Town has implemented this recommendation, In Recommendation No.3, the Grand Jury suggests that the jurisdictions that require pre-sale inspections should either establish a new study committee or utilize an existing organization such as the Marin County Codes Advisory group to meet with representatives of the Marin Association of Realtors to discuss the feasibility of standardizing the pre-sale inspection process. Staff recommends that the Town decline to implement this recommendation as unwarranted. The current process serves the Town well. Given that fact, we believe undertaking the type of initiative that the Jury recommends would be an inappropriate use of the Town's very limited resources. However, we would recommend that the Town consider changes to its process, 2 e e e ,,'." ' [Town ofTiburon - 1505 Tiburon Boulevard, Tiburon CA 94920] August22,2002 $/0) 1JIJ4J#j' The Honorable Lynn O'Malley Taylor Marin County Superior Court Post Office Box 4988 San Rafael, CA 94913-4988 Mr. Lowell W, Smith, Foreperson Marin County Grand Jury 3501 Marin Civic Center Dr., Room 303 San Rafael, CA 94903 Re: Response to Grand Jury Report 2001-2002- Pre-Sale Inspections Dear Hon.orable Judge Taylor and Mr. Smith: This letter explains in detail the Town of Tiburon's response to the Grand Jury Report dated May 30,2002. The Report directs the Town of Tiburon to respond to Findings Nos. 6, 7 and 8 and Recommendations Nos. 2 and 3. These findings and recommendations involve a number of jurisdictions other than the Town of Tiburon. This letter is intended only to apply to the Report's findings and recommendations insofar as they pertain to the Town of Tiburon. Findina No.6: Based on a sampling of jurisdictions, the Grand Jury found an appearance that the actual scope of pre-sale inspections in many jurisdictions bear little relationship to the enabling legislation of the local Municipal Code and state law. The Town has no opinion regarding the practices of other jurisdictions in Marin County. However, the Town's own pre-sale inspection practices are perfectly legal, closely tracking Chapter 13-A of the Town's Municipal Code. In 1994, atter considerable research and consultation, the Town Attorney and Building Official recommended that the Town Council repeal the then-existing Municipal Code Chapter 13-A-Reports of Residential Building Records and adopt a completely revised process. The Tiburon Town Council adopted the current Chapter 13-A on December 5, 1994. This Chapter sets forth the procedure used by the Building Department today in preparing and issuing pre-sale reports. e e e Hon. Taylor and Foreperson Smith August 21, 2002 Page 2 of 3 FindinQ No.7: The Grand Jury found that currently the scope of pre-sale inspections varies widely from jurisdiction to jurisdiction. This frustrates realtors who often work in multiple jurisdictions. The Town believes that the scope of pre-sale inspections may well vary from jurisdiction to jurisdiction. We are not in a position to say whether this causes realtors some level of frustration. However, as explained in greater detail in connection with Recommendation No.3, the Town's first concern must be the safety and welfare of persons and property in the Town. FindinQ No.8: The Grand Jury found that the costs to perform the inspection/reports appear to be covered by the fees collected (thus the process is relatively neutral) and can be undertaken with minimal staff. The Town agrees that the Town's process is revenue neutral. Depending on the activity of the real estate market and the thoroughness of the inspections, it can be a time consuming process requiring additional staff. Recommendation No.2: The Grand Jury recommends that the Marin County cities and towns have their attorneys review existing practices and code provisions and make any appropriate revisions to the codes or practices of the inspectors. The Town has implemented this recommendation. The Town Attorney researched the legality of Chapter 13-A of the Municipal Code in 1994, before recommending that the Town Council adopt it. Our review has not revealed any change in the law in this area since 1994. After receiving the Grand Jury's Report, the Town Attorney reviewed the inspectors' practices with the Town's Building Official and confirmed that those practices comply with Chapter 13-A of the Municipal Code. Recommendation No.3: The Grand Jury Report recommends that the jurisdictions that require pre-sale inspections should either establish a new study committee or utilize an existing organization such as the Marin County Codes Advisory group to meet with representatives of the Marin Association of Realtors to discuss the feasibility of standardizing the pre-sale inspection process. e e e Hon. Taylor and Foreperson Smith August 21, 2002 Page 3 of 3 The Town does not believe that this recommendation is warranted with respect to the Town of Tiburon at this time. The Town's existing process serves Town residents, present and future, well. Our inspection process provides an increased level of safety and general welfare by reducing the number of accidental fires, injuries and accidents. We believe that this result justifies our inspection and report requirements. Incidental frustration by realtors would not justify any reduction in the level of safety enjoyed by the residents of Tiburon. In addition, the Town does not have the resources to take the kind of initiative in this area that is suggested by the Grand Jury. We do not have surplus staff and the officials most knowledgeable in these matters - the Building Official and the Building Inspector - are fully occupied with the operations of the Town's Building Department. That said, the Town Council is certainly willing to consider changes to its process for the benefit of realtors, providing that those changes do not reduce the current protection of residents. If a Countywide committee or task force develops a standardized process equivalent to the Town's existing procedure, we would be happy to review it. .*.** The Tiburbn Town Council reviewed and approved this response on August 21, 2002. If you have further questions on this matter, please do not hesitate to call. Very truly yours. ALEX D. MciNTYRE Town Manager c: Town Council Town Attorney Planning Director Building Official e 2001-2002 MARIN COUNTY GRAND JURY TITLE OF REPORT: Residential Pre-Sale Inspections - Should Marin County Also Require Them? Date of Report: May 30, 2002 . Reports Issued by the Civil Grand Jury do not identify Individuals Interviewed. Penal Code Section 929 requires that reports of the Grand Jury not contain the name of any person, or facts leading to the Identity of any person who provides Information to the Civil Grand Jury. The California State Legislature has stated that It Intends the provisions of Penal Code Section 929 prohibiting disclosure of witness Identities to encourage full candor In testimony In Civil Grand Jury Investigations by protecting the privacy and confidentiality of those who articl ate In an Civil Grand Ju Investi atlon. e e . e Residential Pre-sale Inspections - Should Marin County Also Require Them? ,May 2002 RESIDENTIAL PRE-SALE INSPECTIONS - SHOULD MARIN COUNTY ALSO REQUIRE THEM? SUMMARY The Grand Jury leamed that, except for houseboats, the County of Marin has never required pre-sale inspections of residential properties. At the same time, pre-sale inspections are required for residential properties in all 11 Marin cities or towns; and some have had the requirement for almost 30 years. Novato was the final city to adopt a presale inspection requirement, and did so in 1988. Pre-sale inspections are intended to serve as both a consumer disclosure mechanism, providing potential buyers with information on Zoning issues and Building and Fire Code violations that may exist, and also as a way of identifying potentially hazardous conditions. They would enable the buyer and sellers to negotiate these issues prior to close of escrow and, indeed, afford the buyer the opportunity to make a more informed decision as to whether or not to purchase the property at all. Pre-sale inspections by County staff would also alert buyers to pOSSible future problems they could encounter if they later seek County permits to improve the property. Pre-sale inspections would enable the County to build up a public record history, over time, of conditions 0t1 and changes made to residential properties. The County currently has only limited records on residential properties other than houseboats - primarily where building permits, septic permits or other County entitlements have been applied for and obtained. A requirement for pre-sale inspections by County staff might also deter some property owners from doing construction without permits since they would know that, when a property is sold, a County inspector would go through the property and check for non-permitted construction, code violations, and possible safety hazards. Both the fees for and scope of the reportslinspections in Marin's cities and towns vary considerably. A representative of the real estate profession (who routinely deal with the existing city requirements) strongly urged that an attempt be made to standardize the process from jurisdiction to jurisdiction. Based upon a sampling of jurisdictions by the Grand Jury, it appears that the actual scope of the pre-sale inspections in many jurisdictions goes beyond the limitations set by governing Municipal Code provisions and applicable State laws and court decisions. In many jurisdictions the process appears to have evolved over time, without corresponding revisions being made to the Municipal Code. ENV-2 1 e e e Residential Pre-sale Inspections - Should Marin County Also Require Them? ,May 2002, From the Grand Jury's investigation of the issue, it appears that a requirement for pre-sale inspections/reports at the County level could have merit and certainly deserves further study. BACKGROUND It was disclosed during an interview with a staff member from the Code Enforcement Division of the Marin County Community Development Agency that the County has never had a requirement for pre-sale inspections of residential properties. At the same time, pre-sale inspections are required for residential properties in all 11 Marin cities or towns - some for almost 30 years. The Grand Jury decided to look into the existing pre-sale residential inspection process used by Marin cities and towns in order to determine whether the County should similarly require inspections of residential properties by Community Development Agency staff prior to the completion of a sale. METHODOLOGY As part of its investigation of this issue, the Grand Jury reviewed the pre-sale inspection forms used by the 11 Marin cities or towns to determine the scope of their inspections/reports. Information on fees charged for providing the service was also obtained to determine whether those programs are revenue neutral. Interviews were . ~ conducted with relev!lnt County staff, including members of the Building Inspection and Zoning Enforcement Divisions of the County Community Development Agency. The Grand Jury interviewed several members of the County Board of Supervisors to obtain their opinions on the potential benefits/problems if the County required pre- sale inspections. The Grand Jury also interviewed staff responsible for conducting or overseeing pre-sale inspections in three other jurisdictions (San Rafael, Novato and Corte Madera) and interviewed a representative of the real estate profession regarding the pre-sale inspection process used by other Marin jurisdictions. ENV-2 2 e . e Residential Pre-sale Inspections - Should Marin County Also Require Them? May 2002 DISCUSSION btJc/ , /' L(( /1'./) (/5LJ.. IrA /0 Legal Authority for Requiring County Pre-sale Inspections 4 rJ ~ [) In response to questions from the Grand Jury regarding enabling legislation, several cities or towns cited California Government Code 938780 that specifically authorizes cities to enact ordinances that require pre-sale reports. The Grand Jury sought a legal opinion as to whether there is a provision of state law that would allow a county to require pre-sale reports on residential properties in unincorporated areas. The Grand Jury was advised that Government Code 925846 states that counties may also require such building reports subject to the provisions of 938780 (which requires a seller to provide to the buyer a report showing the regular authorized use, occupancy, and zoning classifications of such property). The Jury was further advised that the purpose of this law is to protect purchasers from not being able to use their property in the manner that the sellers represented prior to sale (Grenell v. City of Hennosa Beach 103 Cal. App.3d 864). The Grand Jury was cautioned, however, that if the intention is to use the general .police power" for the purpose of enforcing building and zoning codes, such use would raise the question of whether an inspection could be conducted without the property owner's pennission. Sections 38780 and 25846 of the Government Code do not give a city or county the right to enter the property for the purpose of an inspection. Indeed neither statute specifically authorizes (or even mentions) an .inspection.. The United States Supreme Court has held that residential property cannot be inspected without either the owner's pennission to inspect or a warrant from the court (Camera v. Municipal Court of the City and County of San Francisco 387 U.S. 523). -~ The Grand Jury was advised that cities or towns doing physical inspections as part of the pre-sale report procedure probably rely more on the seller's eagerness to sell than any specific legal authority for doing so. Typical Information on Forms Used by Marin Cities and Towns All of the cities and towns within Marin County currently require a Residential Building Record/Residential Inspection prior to the sale of residential property. While the process varies considerably from one city to another, most cities and towns include the following in their reports: ' ENV-2 3 e e e Residential Pre-sale Inspections - Should,Marin County Also Require Them? May,2002 . Property information 1 . Planning and Zoning information2 . Codes and permits3 . Building Inspection information4 The scope of the inspections varies greatly among the cities and towns. San Rafael's inspections, for example, focus on identifying immediate health and safety hazards. In general, they do not cite substandard work based on present building code requirements if that work was undertaken based on a different code requirement. They consider all work in the context of the building codes in existence at the time the work was undertaken. However, if there is a dangerous situation, the City will require remedial action. Most cities and towns operate under the premise that inspections are limited in scope, and the inspector does not try to overextend his authority. In contrast, it was reported to the Grand Jury that a few cities or towns, as a result of pre-sale inspections, require that code violations in a dwelling be remedied. The Grand Jury was advised that there may be no legal basis for such requirements. 1 Prooerty information . Name of Owner/Applicant . Address of property . Parcel number . Number of living units . Realtor/office . 2 Plannino and Zonino information . Zoning districUclassification . Permitted uses . Authorized uses . Setback requirements . Parking requirements . Whether the property is located within a designated flood hazard zone 3 Codes and oermits . A historic record of new construction, conversions, or alterations . For each permit, the permit number, the date and usually a description of the WOIk done as well as whether the work conforms, is legal nonconforming, or is illegal nonconforming. . Arllndication of what further action is required: no correction; correction required and retroactive permit; or abate work. 4 Buildino Inspection information · Electrical (e.g. exterior disconnects, splicing, location, fuses, panel label) . Building (e.g. handrails. smoke detectors, fireplace/spark arrestor, visible address, garage firewall, tree limbs) . Mechanical (e,g, hot water heater, furnace, gas lines, solar system) . Plumbing (e,g. traps, drain vents) ENV-2 4 5 Jurisdiction Belvedere Corte Madera Fairfax Larkspur Mill Valley Novato Ross San Anselmo San Rafael Sausalito Tiburon ' e ENV-2 e e Residential Pre-sale Inspections - Should Marin County Also Require Them? May 2002 Fees Charged by Other Jurisdictions for Pre-sale Inspections Just as the scope of pre-sale inspections/reports varies greatly from jurisdiction to jurisdiction, so also do the fees charged for the service. They range from a low of $90 in Sausalito to a high of $174 in San Anselmo for a single-family home. The current fees average about $130.5 City staffs interviewed by the Grand Jury felt that the fees they are charging cover their costs of providing the service and, if anything, some jurisdictions are actually generating profit from the fees. Existing County Residential Pre-sale Inspections Marin County currently conducts only a very limited number of pre-sale inspections of residential properties. For some time the County Code has required pre-sale inspections of houseboats located in unincorporated areas. The County currently perfonns 35-40 houseboat inspections each year. These inspections cover life safety issues only, such as electric wiring, water heaters without pressure'relief valves, broken windows, inadequate heating facilities, sewage connections, sewage injection pumps, smoke alarms, GFI outlets in bathrooms and sometimes in the kitchen (depending on the date of the original construction), room ventilation, etc. The harbonnaster where the houseboat is located notifies the boat owner of the requirement for a pre-sale inspection. The buyer is required to acknowledge, in writing, receipt of a copy of the report issued by the County. This report lists the deficiencies found during the inspection. A re-inspection may be required to cure major deficiencies. The report is kept in a pennanent file maintained by the County for each houseboat. It was reported that real estate agents frequently go to the County to review these reports before listing a houseboat for sale. ~ , While not required, voluntary inspections of residential properties can be requested. The County only performs about 15 to 20 of these inspections each year. Most of the inspections are initiated as a result of tenant complaints and not the sale of a property. The County will also do an inspection if a new buyer insists on one, but Fee $150 $120 single family/first unit + $50 for each additional unit. $125 single family/first unit + $35 for each additional unit. $120 single family, $80 condo, $80 first apartment + $40 for each additional unit $150 single family/first unit +$50 for each additional unit $118 single family. $90 first apartment + $37 for each additional unit $140 $174 single family + $19,50 for each additional unit $100 single family, $75 condo, $100 first apartment + $11 for each additional unit $90 $150 5 e e e Residential Pre-sale Inspections - Should Marin County Also Require Them? May, 2002 only about three or four of these are perfonned each year. These inspections are also limited to life safety issues, and no re-inspection is perfonned. The County currently charges' $125 for voluntary inspections. The reports on these inspections are not indexed in the County's property file, but are maintained only in a general correspondence file. Currently there are no property records kept on residential properties in the unincorporated portion of the County unless a, building pennit or other entitlement has been applied for and approved. Prior Proposals for Pre-Sale inspections at the County Level The last proposal for requiring pre-sale inspections in unincorporated areas was apparently made in the mid-1980s. The then Chief Building Official supported the proposal, as did the Assessor, who saw it as a way to find escaped valuation from non-pennitled construction. The Board of Supervisors did not approve the proposal. At that time there was reportedly significant opposition from West Marin residents who were opposed to any county employee inspecting their property. Comments from County Staff In general, County staff indicated that they thought the concept of pre-sale inspections would be a good idea. However, several concerns were raised: · Some from the Building Inspection Division of the Community Development Agency qualified their support by saying that they would be supportive only if a separate department was set up to handle the inspections. The current Building Inspection Division staff consists of four field inspectors and two in- office plan ch~ers who double as field inspectors when the need arises. · Some County officials expressed concern that wf:lile there probably would be public health and safety benefits from such inspections, such a requirement would place additional burdens on an already taxed Building Inspection Division staff and would require office space that is not available within the Division's work area. · One individual recommended that, if pre-sale inspections were required, they should be done by 'outsourcing" the activity to minimize staff and space problems. Other County staff members, however, disagreed and expressed the opinion that outsourcing would not be beneficial because the County would lose control and consistency, and inspections would tend to be non- unifonn. · Concern was expressed that trying to limit the inspections to life safety issues would not work since the inspector would be bound to report any code violations observed during a life safety inspection. It was felt that doing these inspections would require a -lot of enforcement effort and activity and more ENV-2 6 e e e Residential Pre-sale Inspections - Should Marin County Also Require Them? May, 2002 attorneys would be needed to handle enforcement hearings that would be required to cure or validate the found deficiencies. In response to the concerns expressed by County staff regarding staffing, the Grand Jury learned that San Rafael and Novato each have a single inspector responsible for residential pre-sale inspections. The San Rafael inspector performs 98% of all the pre-sale inspections (on condos, apartments, and single family dwellings), spending approximately half his time on pre-sale inspections, which in 2001 totaled, 662. Novato's results are similar. There the one full-time inspector performs between 600 and 700 inspections annually. These numbers of inspections compare favorably to the reported number of annual residential sales in the unincorporated area.6 In San Rafael most inspections are completed in about 15 minutes, although some may take up to 40 minutes if problems are discovered. Novato estimates that the typical inspection takes 15 minutes plus travel time to and from the site. Driving to and from inspections can consume significant time. The inspectors usually conduct ' up to four inspections a day in San Rafael and six in Novato. They usually combine pre-sale inspections with other inspections and try to concentrate on one geographic area at a time. Staff from the Current Planning Division of the Community Development Agency indicated to the Grand Jury that, assuming there is a political will for such a program, and also that it could be properly implemented from both a staff and financial standpoint, it would be a good idea to have County residential properties inspected for basic life safety issues. They also saw a value in being able to use the inspection information to build up a historic record on residential properties in the County's files. Comments from County Supervisors County Supervisors interviewed by the Grand Jury indicated that, based only on their initial reaction and not on a thorough study of the matter, the concept of requiring residential pre-sale inspections has merit from a public health and safety perspective. At the same time, however, one Supervisor expressed concern that pre-sale ' inspections might have a detrimental effect on the availability of needed moderate to lower cost housing stock if such inspections resulted in the removal of illegal units. For example, it was reported to the Grand Jury that, at the direction of City management, San Rafael uses its pre-sale inspections to aggressively pursue illegal units. When these units are found, they are turned over to Code Enforcement. 6 According to the Marin County Assessor-Recorder, for the period December 2000 - November 2001, there were 670 sales of conventional detac/')ed dwellings and 77 sales of condominiums/townhouses in the unincorporated area, ENV-2 7 e e e Residential Pre-sale Inspections - Should Marin County Also Require Them? ,May 2002 Other Interview Comments The Grand Jury also interviewed a representative of the real estate industry. Because all 11 cities or towns (which includes a large portion of the County population) already require pre-sale inspections, this representative stated that most realtors are already familiar with the requirement and the process and often express surprise that the County does not have a similar process. The Grand Jury was told that while groups such as the Marin Association of Realtors (MAR) had no formal position on the issue of pre-sale inspections at the County level, it could be anticipated that realtors might be against the requirement because of the cost to the seller, the time required to conduct the inspection, the fact that most realtors recommend that a private inspection be purchased in most of the larger transactions, as well as the general belief that "the less government the better". However, it was also noted that realtors might welcome a greater involvement of public agencies in the disclosure process, as this might lessen a realtor's potential liability. There was a strong feeling that realtors would prefer greater uniformity among the jurisdictions requiring inspections, such as a uniform checklist that could be utilized in every municipality. However, it was also noted that city inspectors have historically resisted such a level of cooperation and, although there are regular joint meetings among the staff involved in inspections (through the Marin Codes Advisory group), little has ever come out of the meetings to foster uniformity. Concern was also expressed about the timeliness of the inspections based upon complaints from some realtors that it takes too long to schedule and complete the inspections in some of the jurisdictions. This could be a particular problem when there is a short escrow period. Likewise, city staff currently involved in the inspection process indicated that the main concerns they heard', from realtors about the process include lack of uniformity between jurisdictions' and delays caused by slow responses to requests for inspections. These city staff members felt that realtors generally support the process since it provides another level of protection for them. Staff members also stressed the importance of their efforts to establish and maintain a cooperative working relationship with realtors; realtors can be supportive and expedite the inspection process in return for timely response by the City in carrying out the inspections. Existing inspection staff stressed that representatives of the Marin Association of Realtors should be included in any discussions to modify the existing programs or develop one for the County. An argument can be made that the real property disclosure laws enacted since the city pre-sale inspection requirements were first established may serve the same purpose in protecting purchasers of real property. However, those currently involved in the process generally did not agree with this assertion and felt (in some cases fairly strongly) that requiring pre-sale inspections was important from a life safety standpoint and served a largely different function. ENV-2 8 e e e Residential Pre-sale Inspections - Should Marin County Also Require Them? May 2002 The Grand Jury observed that city inspection staffs were generally enthusiastic regarding the benefits of pre-sale inspections and believe that pre-sale inspections, may deter homeOwners from undertaking construction projects without required permits. However, they wamed that some jurisdictions might exploit the fees as a revenue source and try to require work that may not be legally justified under present statutes. A frequent complaint heard by the Grand Jury was that those municipalities that require upgrades to bring properties into compliance with current codes incorrectly interpret the Uniform Building Code (UBC). The UBC actually mandates that buildings be maintained in conformance with the code edition under which the construction was installed (Section 3402 of the 1997 UBC). Potential Benefits from Pre-sale Inspections ,The Grand Jury learned that pre-sale inspections can serve as both a consumer disclosure mechanism providing potential buyers with information on Zoning (Le. use, setback, parking and conditions, of prior entitlements), and Building and Fire Code violations that may exist with the property, and as a way of identifying potentially hazardous conditions. This allows remedies to be negotiated between buyers and sellers prior to close of escrow and allows buyers to make more informed decisions as to whether or not to purchase a property. Pre-sale inspections also alert buyers to problems they may encounter if they Jater seek permits to improve the property. Pre-sale inspections would allow the County to build up a public record history, over time, of conditions on and changes made to residential properties similar to those that exist in cities and towns. In the cities and towns, realtors and prospective buyers often specifically ask to review previous presale reports as an initial step in their investigation of a p-roperty. The County currently has only limited records on residential properties:'other than houseboats - primarily where building or septic permits or other Courtty entitlements have been obtained. A requirement for pre-sale inspections by County Community Development Agency staff might also deter some property owners from undertaking construction projects without required permits, knowing that when a property is sold, a County inspector will inspect the property and check for non-permitted construction, code violations and possible safety hazards. FINDINGS 1. Because pre-sale inspections/reports are already required by all 11 cities or towns (which include a large portion of the Marin County population), most realtors are already familiar with the requirement and the process and are often surprised that the County does not have a similar requirement. ENV-2 9 e . e Residential Pre-sale Inspections - Should Marin County Also Require Them? May 2002 2. Because the actual scOpe of the inspections/reports in many of Marin's cities and towns appears to have little relationship to the enabling legislation of the local municipal code and applicable State laws, the cities and towns should have their City or Town Attorneys review existing practices and code provisions and make any appropriate revisions either to the codes or to the practices of the inspectors. 3. The jurisdictions that require pre-sale inspections should either establish a new study committee or utilize an existing organization such as the Marin County Codes Advisory group to meet with representatives of the Marin Association of Realtors to discuss the feasibility of standardizing the pre-sale inspection process. REQUEST FOR RESPONSES Pursuant to Penal Code section 933.05, the Grand Jury requests: 1. A response to Findings 1-5 and Recommendations 1 and 3 from the County Board of Supervisors. 2. A response to Findings 6, 7 and 8 and Recommendations 2 and 3 from the City or Town Council of each of the 11 Marin cities or towns. The Grand Jury also invites a response to this report from the Marin Association of Realtors. -, -- -- ENV-2 11 e e e ....".;;-,.. ......_;..,... "-"-',..:--:-,;,:-.';; .- ,"'. ',"., -:l':,~ ',< . ,. ......... .,....,... o Town of Tiburon STAFF REPORT AGENDA ITEM ~('l7) PJI - . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . To; From: Subject; MAYOR AND MEMBERS OF THE TOWN COUNCIL ANN R. DANFORTH, TOWN ATTORNEY RESPONSE TO GRAND JURY REPORT 2001-2002 EMERGENCY MANAGEMENT AND OPERATIONS AUGUST 21, 2002 Date: BACKGROUND On June 19, 2002, the Marin County Civil Grand Jury issued a report entitled "Emergency Management and Operations in Marin County." The Report analyzes the County's disaster planning and facilities, emphasizing problems with the County's Emergency Operations Center, Command and Organizational Structure and Public and County Apathy. However, the report also discusses the need for the completion of the Marin Emergency Radio Authority system by locating an antenna in the Town ofTiburon and the reasons for the delays in constructing that antenna. Finding No, 14 and Recommendation No. 10 involve the MERA antenna issue and the Grand Jury has requested that we respond to them. By law, our response is due on September 17, 2002.' I have attached the Town's draft response for the Council review and approval. ANALYSIS 1, Grand Jurv Findinl!s, Under 9 933.05 of the Penal Code, the Town is required to either state that it (a) agrees with the finding; or (b) disagrees wholly or partially with the finding. In the latter case, we must include an explanation of the portion of the finding that is disputed and include an explanation of the reasons therefore, The Grand Jury found the MERA system is designed and partially completed. The report states that final antenna installation is mired in a legal and neighborhood dispute over the selected site that could delay its completion beyond the end of2002. The Grand Jury does not explicitly I The letter ro the Council from Grand Jury Foreperson Lowell W, Smith erroneously staies that our response is due 60 days from the date of the Report, In fact, under the Califomia Penal Code, the deadline is 90 days from the date of the report, The 60-day deadline applies only to the County's response, 1 e e e assign blame for the delay. However, the text of the report appears to imply that the Town of Tiburon and its residents are, at fault. The Town of Tiburon agrees that the system is designed and partially completed. The Town also agrees that legal and neighborhood disputes have delayed completion of the Tiburon peninsula antenna and that this delay could conceivably continue past the end of the current year. However, the Town rejects any suggestion that it is responsible for the delay in completing the system. The tone of the report appears to trivialize the problems with MERA's original antenna site, dismissing the Town's concerns as "political.'" In fact, the problems with the Mt. Tiburon site are considerable and the Town has taken action to remedy those problems in the face of considerable political opposition, as set forth in the draft response. 2. Grand Jurv Recommendations, In responding to the Grand Jury's Recommendations, Penal Code 9 933.05 requires the Town to report one of the following actions: (a) The recommendation has been implemented, with a summary regarding the implemented action, (b) The recommendation has not been implemented, but will be implemented in the future, with a timetable for implementation, (c) The recommendation requires further analysis, with an explanation and the scope and parameters of an analysis or study and a timeframe for the matter to be prepared for discussion by the officer or head of the agency or department being investigated or reviewed, including the governing body of the public agency when applicable, This timeframe shall not exceed six months from the date of publication of the Grand Jury Report. (d) The recommendation will not be implemented because it is not warranted or is not reasonable, with an explanation therefor. In Recommendation No.9, the Grand Jury Report states the following: MERA should continue to work toward resolving the stalemate with affected parties in the Town of Tiburon relating to the construction of a fixed antenna. The involved parties should, to the extent that they are not already, be made aware, 2 The text of the report states that during the EIR process neither Tiburon nor its residents objected to the location of the antenna, despite the inclusion of simulated photographs of the tower in the EIR. In fact, MERA failed to notify affected Tiburon residents that the project included an antenna in their neighborhood, so they had no opportunity to object at that time, Further, the EIR did not show the full visual impact of the tower as it would be seen from the residence at 99 Mt. Tiburon Road and the nearby public hiking traiL These impacts only became known after MERA applied to the Town for a CUP, As noted in the Grand Jury Report, the Town's Planning Commission denied this application, The Report fails to note that MERA chose not to appeal that decision, 2 e e e that delays in constructing the antenna in Tiburon compromises activation of the system for the entire county. The first sentence of this recommendation is directed at MERA. However, we must note that the Town has worked diligently and proactively to resolve the siting problem. We respect to the second sentence, the Town has already implemented the recommendation, holding multiple hearings on the issue. The Town has approved an alternate site with lesser impacts that the site proposed by MERA. The current delay is the result of litigation filed by parties opposed to the alternate site. We expect that litigation to be resolved in favor ofMERA and the Town at the September 5, 2002, hearing on the litigation. RECOMMENDATION The Town Council should review and approve the Town's proposed response to the Grand Jury's Report ofJune 19, 2002. EXHIBITS Proposed Response to Grand Jury Report Grand Jury Report of June 19, 2002 3 e e e [Town of Tiburon - 1505 Tiburon Boulevard, Tiburon CA 94920] August 22, 2002 The Honorable Lynn O'Malley Taylor Miuin County Superior Court Post Office Box 4988 San Rafael, CA 94913-4988 Mr. Lowell W. Smith, Foreperson Marin County Grand Jury 3501 Marin Civic Center Dr., Room 303 San Rafael, CA 94903 Re: Response to Grand Jury Report 2001-2002- Emergency Management and Operations Dear Honorable Judge Taylor and Mr. Smith: This letter explains in detail the Town of Tiburon's response to the Grand Jury Report dated June 19, 2002. The Report directs the Town of Tiburon to respond to Finding No. 14 and Recommendation No.9. Findinq No. 14: The Grand Jury found the MERA system is designed and partially completed. The report states that final antenna installation is mired in a legal and neighborhood dispute over the selected site that could delay its completion beyond the end of 2002. The Town of Tiburon agrees that the system is designed and partially completed. The Town also agrees that legal and neighborhood disputes have delayed completion of the Tiburon peninsula antenna and that this delay could conceivably continue past the end of the current year. However, the Town rejects any suggestion that it is responsible for the delay in completing the system. The tone of the report appears to trivialize the problems with MERA's original antenna site, dismissing the Town's concerns as "political." In fact, the problems with the Mt. Tiburon site are considerable and the Town has taken action to remedy those problems in the face of considerable political opposition. The Town believes that the current dispute will be resolved well before the end of the year, e e e Hon. Taylor and Foreperson Smith August 22, 2002 Page 2 of 4 Under MERA's original design, the Tiburon peninsula site was located at 99 Y:, Mt. Tiburon Road, which is in a residential neighborhood. The antenna tower would be located only a few feet from a popular public hiking trail, and only a few feet further from the neighboring residence at 99 Mt. Tiburon Road. The tower's transmitters would be directed at the 99 Mt. Tiburon Road home and would cause unusually high radio frequency emissions at the nearest wall.1 The full length of the tower (approximately 80 feet, consisting of a 65 foot monopole, plus a 15 foot whip antenna) would loom over the residence and hiking trail and be highly visible from other nearby homes. No other tower in the MERA system shared these problems. Unfortunately, MERA did not notice or otherwise involve the neighbors of the Mt. Tiburon site before approving its system design and certifying the EIR. The neighbors first heard about the proposal when MERA applied to the Town of Tiburon for a use permit for the site in early 2000. The MERA application excited considerable neighborhood opposition. Many disputed the safety of the RF emissions, even though within FCC standards, citing the uncertain state of the science in this field, Others opposed the tower's visual impacts. Most noted that public concern regarding the emissions, combined with the high visibility of the tower, would certainly impact property values. As the representative of its residents, the Town properly heard these concerns. Like many other jurisdictions in Marin County, the Town of Tiburon has regulations that prohibit antenna towers in residential neighborhoods unless the applicant can demonstrate that there are no alternatives. The Town denied MERA's conditional use permit application in June of 2000 because MERA had failed to search for alternative sites. MERA initially appealed this decision, but later withdrew its appeal and agreed to look for another site, The Town and MERA disagree as to whether MERA promptly began a search for another site, However, there can be no dispute that since the fall of 2001, the Town has proactively and aggressively worked with MERA in this search. Unfortunately, the search for a non-residential site has not been successful. The number of potential sites is limited from the outset by coverage requirements. We believe that the Town considered all of the sites that could offer possibly afford the necessary coverage. We found the non-residential sites to be infeasible either for technical reasons or because the necessary permits could not be obtained or would not be obtained in a reasonable timeframe, The Town did identify a second residential site, at 145 Sugarloaf Drive, which was studied as an alternative in the MERA EIR and which Town officials believed might be I The maximum predicted RF level at the nearest wall of the home at 99 Mt. Tiburon Road would be 21.6% of the FCC standard. Also clearly within legal limits, this level is higher than nonnal, and much higher than would result from any other MERA antenna. e e e -'-.'':'" . '. ,'" . ;~ .-' -.'" -;,. ;'.' .~.::,",;::" ',,::':;:::. Hon. Taylor and Foreperson Smith August22,2002 Page 3 of 4 preferable to the Mt. Tiburon site. To expedite the completion of the MERA system, the Council adopted an ordinance streamlining its permitting processes on June 19, 2002.2 Upon review, the Council found that at the Sugarloaf site, the transmitters could point away from nearby residences, which would be further from the antenna tower than at the Mt. Tiburon site. These features mean that the residences would experience lower RF emissions from the tower. Also, the Sugarloaf site currently has six transmitting antennas, five of which would be replaced by the MERA antenna. The result is that the emissions levels will actually be reduced at most locations. Any increases will be negligible, particularly when compared with the emissions increase that would occur at the Mt. Tiburon site. The Sugarloaf site also had better coverage than the Mt Tiburon site. Lastly, the Sugarloaf site has a number of mature trees that will shield most of the antenna tower from view. The visual impacts will be much less than at the Mt. Tiburon site, where nearby residents and members of the public on the hiking trail would be able to see the full length of the tower. For these reasons, on July 31, 2002, the Town Council reluctantly, but unanimously, approved the MERA facility at the Sugarloaf site because it felt it had no other choice in light of the threats by MERA to commence construction on Mt. Tiburon and the threat of litigation from MERA. In addition the Town was able to impose conditions of approval at the Mt. Tiburon site which further lessened the impact, whereas the Town. In contrast, MERA was prepared to go forward on the Mt. Tiburon site without giving the Town the opportunity to impose conditions. Many of the residents in the neighborhood of the Sugarloaf site opposed the proposed facility. Their substantive complaints were similar to those raised in connection with the Mt. Tiburon site, notwithstanding the reduction in impacts. They also objected to the approval process. The day after the Town's action, a neighborhood group (entitled Tiburon Residents against Unfair MERA Antenna Siting Process, or "TRAUMAS") filed suit to overturn the Town's approval of the site. The court has granted us a prompt hearing, therefore we expect to have the matter resolved at the trial court level on September 5,2002. The Town regrets finding itself in litigation with its residents. However, given that litigation seemed likely at either of the two possible sites for the MERA facility, the Town prefers to defend the site with lesser impacts rather than have the facility constructed in what is clearly a much worse location. 2 In matters of Town-wide importance, particularly relating to public services, the Town's practice is to adopt a streamlined procedure that allows the Council to take direct authority over the project. The Town has done this before in connection with the Town's library building, Town Hall, Police Station and the on-going Ferry Plaza project. e e e Hon. Taylor and Foreperson Smith August22,2002 Page 4 of 4 Recommendation No.9: The Report states the following: MERA should continue to work toward resolving the stalemate with affected parties in the Town of Tiburon relating to the construction of a fixed antenna. The involved parties should, to the extent that they are not already, be made aware, that delays in constructing the antenna in Tiburon compromises activation of the system for the entire county. The first sentence of this recommendation is directed at MERA. However, we must note that the Town has worked diligently and proactively to resolve the siting problem. We respect to the second sentence, the Town has held no fewer than public four meetings this year relating to the siting issue, all widely noticed. We had hoped to ameliorate the neighborhood opposition by finding a site with lesser impacts. Nevertheless, the TRAUMAS group has chosen to attack the MERA approval in court. We believe that they are fully aware that this action threatens completion of the entire system. ***** The Tiburon Town Council reviewed and approved this response on August 21,2002. If you have further questions on this matter, please do not hesitate to call. Very truly yours, , ALEX D. MciNTYRE Town Manager c: Town Council Town Attorney e e e 2001-2002 MARIN COUNTY GRAND JURY TITLE OF REPORT: Emergency Management and Operations in Ma'rin County Date of Report: June 19,2002 Reports Issued by the Civil Grand Jury do not identify Individuals Interviewed. Penal Code Section 929 requires that reports of the Grand Jury not contain the name of any person, or facts leading to the Identity of any person who provides information to the Civil Grand Jury. The California State Legislature has stated that it intends the provisions of Penal Code Section 929 prohibiting disclosure of witness Identities to encourage full candor In testimony In Civil Grand Jury Investigations by protecting the privacy and confidentiality of those who artici ate in an Civil Grand Ju investi ation. Emergency Management and Operations in Marin County June 2002 e EMERGENCY MANAGEMENT AND OPERATIONS IN MARIN COUNTY SUMMARY In the aftermath of the horrors of September 11,2001, the 2001-2002 Grand Jury decided to assess the current state of readiness in Marin County to deal with a major catastrophe. Although the initial impetus for the study was a terrorist act, it became quickly apparent that the greater disaster probability for Marin 'would involve a natural event, such as an earthquake, wildfire, or flood. ,Earthquakes, for example, are a common phenomenon in the Bay Area. The U.S, Geological survey has estimated that there is a 70% probability that one or more quakes with magnitudes of at least 6.7 will strike somewhere in the Bay Area within the next 30 years.' Fire is another easily foreseeable event with potentially huge consequences. One only has to recall the Oakland Hills fire to understand the magnitude of the potential for disaster. Mt. Tamalpais is generally considered to pose as great or greater a threat to residences and people as the Oakland Hills fire, e The Grand Jury concluded that Marin County's state of disaster readiness is good in certain areas and deficient in others. The Office of Emergency Services (OES) is currently well organized and staffed with professional and motivated personnel. Its mission is guided by an Emergency Operations Plan (EOP) that is reasonably comprehensive and is currently being updated. On the other hand, the Emergency Operations Center (EOG) - the command center where decisions are made regarding the actual deployment of manpower and resources during an emergency - is woefully deficient. It is a place where as many as 75 emergency workers at a time may have to spend many hours, under stressful conditions, and where a work-friendly environment is an absolute essential. The Grand Jury found the EOC to be totally inadequate for its designated function, and it makes several recommendations in that regard. First, an appropriate and fully functional interim EOC should be established immediately, and, secondly, steps should be taken right away to locate and construct an "essential services" building to house a permanent EOC. It is regrettable that this recommendation, which was also made by another Grand Jury six years ago, must be made again. There are other improvements needed in the area of Disaster Preparedness as well. For instance, the Marin Emergency Radio Authority (MERA) is a technologically advanced emergency communications system and a critical component of the County's preparedness scheme. For full coverage, it relies upon eleven linked antennas to e 1 Data obtained from the following web site: Http://Quake,wr,usQs,Qov/ DP-1 e e e Emergency Management and Operations in Marin County June 2002 coordinate communications countywide among police, fire, paramedic, and other essential service providers; however, its planned antenna on Mt. Tiburon is now mired in neighborhood controversy. Since the system is designed as a single unit, any delay in , completing the Tiburon antenna will preclude MERA from activating the system at all, thereby impacting the whole County. Training of County employees designated to work in the EOC is also deficient. Attendance at classroom training sessions has been sparse and participation apathetic, A drill conducted in February 2002 demonstrated the rustiness caused by inadequate classroom preparation and by the absence of appropriate field training and drills. In this regard, the Board of Supervisors should adopt and immediately implement the new Marin Emergency Staff Development Program. Despite the 9-11 wakeup call, public apathy remains a problem. Since ultimately Marin County residents must assume they will be isolated for up to 72 hours in the event of a major catastrophe, it is critical that all residents learn to become self sufficient and to understand how they can best help their neighbors in need. Finally, it is the responsibility of the Board of Supervisors to give high priority to disaster preparedness. With their strong commitment, expectations can be communicated to department managers and others, and apathy within the ranks of County Government can be overcome. BACKGROUND Prior Grand Juries have issued reports dealing with disaster preparedness, most recently in 1995 and 1996. Response was spotty and implementation of recommendations relating to the Emergency Operations Center (EOC), the Office of Emergency Services (OES), training and exercises, and neighborhood involvement were given low priority. The objective of this Jury's effort was to assess the capability of the County staff to comply with and execute the County's Emergency Operations Plan. The focus of the investigation is on the following: 1. The EOC facility 2. Command and organization structure of the OES 3. Training and drill/exercise schedules 4. Marin Emergency Radio Authority (MERA) 5. Apathy of the public and County staff DP-1 2 Emergency Management and Operations in Marin County June 2002 tt METHODOLOGY Interviews and Site Visits 1. 2. 3. e 4. 5. 6, 7, 8. 9. 1. Representatives of Marin County governmental agencies: Office of Emergency Services (OES), Board of Supervisors, County Administrator, Coroner, Public Works, Sheriff, and MERA 2. City of San Jose Emergency Operations Center 3, Sonoma County Emergency Operations Center 4. Novato Fire District 5. San Rafael Fire Department 6. Marin Chapter, American Red Cross 7. Observed Marin County Exercise, All Washed Up, February 21, 2002 8. Observed Disaster Council Meeting, March 14, 2002 Document Review Standardized Emerqency Manaqement System (SEMS) Guidelines, California OES, 1994 Marin Operational Area Emerqency Operations Plan, Marin County Sheriffs Department, 1999 1996 Marin County Civil Grand Jury, Disaster Preparedness of Marin County 1995 Marin County Civil Grand Jury, Marin County Emerqency Disaster Preparedness Novato Millennium, Incident Action Plan, Novato Fire Protection District, December 2000-January 2001 Sonoma County/Operational Area Emerqency Operations Plan, Sonoma County Office of Emergency Services, November 2000 Personal Responsibility for Emerqency Preparedness, Mill Valley Emergency Preparedness Committee, 1994 All Washed Up Countywide Exercise, February 21, 2002 After Action Report Marin Emerqency Staff Development Proqram (MESDP), Marin County Sheriffs Department, April 2002 DISCUSSION There are three broad categories of hazards that create risks: e Natural Hazards - earthquakes - floods - wildfires - extreme weather/storms - landslides - tsunamis Technoloaical Hazards - dam failure - hazardous material - transportation emergencies biological and chemical agents Domestic Security Threats - civil unrest - terrorism DP-1 3 e e e Emergency Management and Operations in Marin County June 2002 A major earthquake is widely considered to pose the greatest probability for disaster in Marin County. Indeed, the US Geologic Survey (USGS) concludes there is a 70% likelihood of an earthquake of 6.7 or greater magnitude in the Bay Area within the next 30 years,2 Studies conducted by the Association of Bay Area Governments (ABAG) show that a 7.9 tremor in the Bay Area portion of the San Andreas Fault would devastate Marin, leaving approximately 3,500 uninhabitable dwelling units, 8,100 people displaced, 70 road 'closures, and a peak shelter population of more than 2,200.3 These effects are reasonably comparable to those anticipated in the event of either a 7.1 quake along the Hayward Fault or a 7,2 earthquake on the Rodgers Creek and North Hayward Faults. Fire is another easily foreseeable event with potentially ominous consequences. There were three major wildfires in Marin between 1882 and 1945, each consuming an average of more than 40,000 acres. The last of those, in 1945, burned 20,000 acres. Since then, nearly 60 years of new chaparral and evergreen forest growth have added fuels to the point that Mt. Tamalpais is generally considered to pose as great or greater a threat to residences and people as the Oakland Hills fire. Marin County is justifiably proud of the beauty of its natural surroundings. However, its residential areas are largely confined to several miles on either side of the US 101 corridor, and 101 is also the single major transportation route, not only for County residents, but also for people traveling north from San Francisco. As such, it can easily be choked by overuse, with the result that Marin's residents can be blocked from escape or, worse yet, trapped in a disaster. One has only to consider the threats outlined above, or to recall the 1982 Countywide flood or the 1995 Mt. Vision fire in West Marin, to realize the importance of disaster planning. So, are we prepared? The Emergency Operations Plan The Emergency Operations Plan (EOP) is a comprehensive document promulgated by the Board of Supervisors to ensure the most effective and economical allocation of resources for protection of people and property in time of an emergency, The EOP addresses all of the hazards listed above. It follows guidelines from the State of California contained in the Standardized Emergency Management System (SEMS) and local emergency planning guidelines provided by the State. The objective of the plan is to incorporate and coordinate all the facilities and personnel of the County and operational area jurisdictions into an efficient organization capable of responding to major emergency 2 See information contained at Http://qov/bayarea/eqmanp/eqmaps,htmland subsidiary sites. 3 The peak shelter statistics do not include pre-disaster homeless, tourist or commuter displacements due to road closures, or people seeking shelter for reasons other than structural damage to their dwellings, Nor do these statistics attempt to cover the effects of secondary disasters such as toxic gas releases or fires, DP-1 4 e e e Emergency Management and Operations in Marin County June 2002 situations associated with natural disasters, technological incidents and national security events in or affecting Marin County. The Plan addresses the entire spectrum of contingencies ranging from relatively minor incidents to large-scale disasters. The Plan accomplishes the following: 1, Establishes the emergency management organization to be utilized to mitigate any significant emergency or disaster affecting Marin County. 2, Identifies the policies, responsibilities and procedures to be utilized to protect the health and safety of Marin County communities, public and private property, and the environmental effects of natural and technological emergencies and disasters. 3. Establishes the operational concepts and procedures associated with day-to-day field response to emergencies by County Departments. 4, Establishes the policies and procedures for the County Emergency Operations Center activities. 5, Defines the procedures for the recovery process. The Marin County Board of Supervisors approved the EOP on May 25, 1999. It has not been updated with the exception of an added section on bio-terrorism issued in 2000. The next required revision, under SEMS, would be in 2003, Emergency Operations Center Facility (EOC) During a disaster/emergency, the Marin County Emergency Operations Center (EOC) performs two functions: 1. Supports field response operations within the unincorporated areas of Marin County. The primary emphasis is placed on saving lives, protecting property, and preserving the environment. 2. Serves as the operational area EOC for coordination and communications among cities, special districts and the State OES. The Grand Jury toured the EOC and concluded that the existing EOC facility does not meet minimum requirements for an efficient and effective operation. 1. The EOC is located in the utility corridor of the Hall of Justice, midway between the, Courts Floor and the ground floor. A door from the stairwell opens to a large U- shaped room of only 1200 square feet. The Civil Preparedness Agency and the County set up this "bunker" in September 1978. Fire safety and Occupational Safety and Health Act (OSHA) standards would normally allow a maximum of 25 individuals in this space, although up to 75 people could be needed at one time to staff the various stations in the unit. 2. There is a very small anteroom of about 150 square feet for the EOC Director and management team. This room also contains storage, computer servers and DP-1 5 e e e Emergency Management and Operations in Marin County June 2002 electronic equipment. Uninterrupted power systems are available in the EOC, but not throughout the Civic Center. An auxiliary power generator can provide power for up seven days. 3. The ceiling is crowded with ventilation system ducts, water lines and electrical conduit. Some multiple outlets dangle on their cords from the ceiling. Fluorescent lighting is adequate although one bank of lights was not working in the Public Information Officer's (PIO) area during our visit. The Radio Amateur Civil Emergency Services (RACES) stations were cluttered with stored items. There is limited space to store emergency equipment. 4. There is no bathroom and no direct water line nearby. There are no fire ,extinguishers, A refrigerator contains a case of bottled water, but no food. Air conditioning and ventilation is inadequate. 5. There are only two computers of uncertain vintage. There are no laptop computers and a portable local area network (LAN) is lacking. 6. The EOC does not satisfy current Americans with Disabilities Act (ADA) requirements. The present alternate EOC location is in the Civic Center Exhibit Hall. There is a computer LAN. 14: phone handsets and connections available, There is no backup power. Storage facilities to house supplies and essential radio equipment are currently being installed. The EOC does not house either the Office of Emergency Services (OES), which oversees the disaster preparedness activities for the County, or the Department Operations Center (DOC) for the Department of Health and Human Services (H&HS), which manages declared health emergencies. The OES Office is located in an off-site location several blocks from the Civic Center. The DOC is presently located in San Rafael's Northgate Industrial Park. In both cases a location adjacent to the EOC would be desirable. As recently as 1996, the Grand Jury noted many of the deficiencies cited above. From current observation, it is apparent that little progress in addressing these issues has been made. Model Emergency Operations Center Members of the Grand Jury visited two nearby jurisdictions to observe emergency operations centers. They were the City of San Jose and the County of Sonoma. Both possessed excellent physical and operational characteristics which could serve as models to Marin County planners to improve its present EOC situation. DP.1 6 e e e Emergency Management and Operations in Marin County June 2002 The City of San Jose 1. Structure: The EOC occupies approximately 3100 square feet in a secure building which also houses the police, fire and 911 central dispatch center, the City communications center, the OES department, as well as parking for police, fire, paramedic and other services. The building itself is designed and built to conform to building code standards applicable to "essential service" buildings. 2. The Backup/Alternative: San Jose also has two backup EOCs. The first is the old EOC, which is located nearby, and a second located in a fire station about five miles away. 3. Information Technoloqy: The City offices have a six-hour battery backup power supply for all computer applications. During the first six hours after a power outage, all necessary files and documents can be transferred to the EOC so that essential services can continue to function. 4. Operations: The EOC is turnkey. It is fully equipped and signs direct peopleJo the area they are to staff. Each area has its own computer, phones and hard copy binders with essential information. The County of Sonoma 1. Structure: The EOC is located in a secure, ground-floor location in the County Court House. The space totals 1850 square feet to be expanded to 4,000 square feet in six months. It houses the EOC and the offices for the Sonoma Operational Area Emergency Services. The facility has full standby power and computer redundancy. 2. Informational Technoloqy: The EOC, when not mobilized, is used as an Informational Technology (IT) training room maximizing efficient space utilization. 3. Operations: Health or biological incidents are managed through the main EOC, not a separate EOC, as is the case in Marin. Approximately 75 persons can be comfortably accommodated in the center. Both the San Jose and the Sonoma County EOCs have desirable architectural and functional layouts as do recently constructed facilities located in Alameda and San Mateo Counties. An "essential services" building meeting current California building codes has, at a minimum, a seismic safety structure, backup power and utilities, perimeter security, tie-in with dispatch centers. computer capabilities and support for staff meals and breaks. DP-1 7 e . e Emergency Management and Operations in Marin County June 2002 Plans for an Interim EOC Plans to relocate the present EOC to an "interim" location to overcome at least some of the present EOC deficiencies are under consideration by the Office of Emergency Services (OES) and County Administrator. Such an interim location would be used for five years or longer, until a permanent "essential services" building could be constructed. Several sites are under consideration, including (1) the training and conference rooms (and adjacent offices) in the County Jail, (2) portions of the Hall of Justice, (3) the present alternative EOC in the Exhibit Hall and (4) off-site commercial space. While an improvement over the present facility, the interim plan does not provide for an "essential services" environment. The timetable for this move is dependent upon other departmental space assignments and relocations, A target completion date was originally planned as December 2002 but it appears that schedule will be significantly delayed. The desired objective is a space of at least 3000 square feet to house the EOC, the OES office and the emergency operations of H&HS. If approved, it could be designed for non-emergency alternative uses such as information technology training, Plans for a Permanent EOC The Board of Supervisors, in the context of a master site and space needs study of the Civic Center, has commissioned an investigation into the feasibility of constructing an "essential services" building near or on the Civic Center campus which would house the EOC, communications, dispatch center and other critical services. An essential services structure, in compliance with State codes, would be designed to withstand a major seismic event, be self-supporting with power, utilities, food and water for several days and provide a secure, limited-access environment. The timeline on development of such a structure, considering planning, funding and construction would span five years or longer. Command and Organizational Structure The organization responsible for emergency management in the event of a disaster is the Office of Emergency Services (OES). The Director of the OES is a member of the Boardo of Supervisors (BOS), selected to be the Director by fellow Board members. The position is not permanent, and a new Director from among BOS members can be selected annually. The Director is responsible for implementing the emergency operations plan (EOP) through the efforts of the County Sheriff's Office. The OES Manager and his staff of four operate from within the Sheriff's Department under a Captain in charge of support services. The Sheriff is an elected official arid thus does not report to the BOS. Consequently, the OES staff comes under both the BOS and the Sheriff's Department, with no clear separation of reporting lines. The Director of an activated EOC, in the event of an emergency, is the County Administrator or his designee, During an emergency, the OES Manager becomes part of the management team under the County Administrator. Thus, the OES Manager DP-1 8 Emergency Management and Operations in Marin County June 2002 e potentially has three bosses - the Board of Supervisors, the Sheriff and the County Administrator. Training and Exercises California's Standardized Emergency Management System (SEMS) provides guidelines that identify prescribed training and exercises for all primary and alternate personnel who staff emergency operation centers (EOCs). These include County employees whose primary job descriptions do not entail disaster work. For this reason, all County employees need disaster training. Training SEMS requires that its approved introductory course (and other EOC training courses as well) be made available for all personnel who perform a SEMS function in the EOC', There are four approved courses in the SEMS Training Curriculum. These courses are: 1. Introductory - provides a basic understanding of SEMS and what is required of personnel to work within the EOC, 2. Field - provides the participants with a solid understanding of Incident Command Systems. e 3. Emerqencv Operations Center - provides participants an understanding of what is required by SEMS to manage a multi-agency/jurisdiction response to a major disaster or emergency from within the EOC, 4. Executive - provides a basic understanding of the operating requirements for EOC's and the role of a manager in the EOC. Minimum training competencies are identified in the approved SEMS courses as performance objectives. The lead agency4 is required to ensure that training provided to Operational Area personnel is documented and kept in personnel files. Marin's Operational Area Emergency Operations Plan (EOP), which is SEMS-based, addresses training and exercises and identifies training requirements associated with emergency management. All County departments with responsibilities under the Plan are required to ensure that their personnel are properly trained. The County OES is supposed to monitor and make certain that EOC personnel meet the performance objectives set out by the SEMS guidelines. Currently, Marin's OES does not have a formal emergency management training plan in place, Traditionally, training has taken place based upon a current threat or perceived need. OES staff teaches the SEMS Introductory Module on average twice a month for e 4 In Marin County, the lead agency is the Office of Emergency Services. DP-1 9 Emergency Management and Operations in Marin County June 2002 e County, city/town, and special district employees. For the remaining modules (Field, EOC staff, and Executive staff), training is conducted by OES staff on an as needed basis. The OES staff have undertaken formal instructor training with either the California Specialized Training Institute or the military. Each of the staff has at least two years experience'in conducting emergency management training. The staff currently consists of four people. Additional OES staff and resources would allow for increased training activity. Another source of training personnel would be the use of staff from other County departments, but this resource is contingent upon the willingness of other agencies and departments to support the program. However, since training is only one of 13 functions identified in the OES mission, the effort to manage an increased training activity could interfere with other OES functions. The following SEMS courses for County EOC staff are required: . All staff SEMS Introductory Module . Section Chiefs SEMS EOC Module . EOC Director SEMS Executive module . In 2001, OES offered EOC staff training on 13 subjects covering both required and recommended emergency management courses. The training was designed to move from individual to team skills, although specialized individual skills were also offered. Unfortunately, County employee attendance averaged only 25% of available seats. Attendance by employees is not mandatory, bES maintains a database of personnel who have attended OES sponsored training - including SEMS courses. Most of the currently designated EOC staff have attended at least one SEMS module. Exercise;; To ensure readiness to meet the activation of the EOC in the face of a disaster, the County, as the Operational Area, should conduct training exercises on a regular basis. As a minimum, SEMS recommends the following exercise program: . One full-scale exercise during every four year cycle . One functional exerciseS during each of the remaining years The exercises may be conducted in conjunction with local governments and the regional (State) level. The County OES is responsible for the planning and conducting of emergency exercises for the incorporated cities/towns through a Memorandum of Understanding approved by the Board of Supervisors in 1998. e 5 A "functional" exercise is one which is conducted without mobilizing the agencies involved, DP-1 10 e e e Emergency Management and Operations in Marin County June 2002 According to Marin's EOP, exercises are to be conducted on a "regular basis". They are to include as many Operational Area member jurisdictions as possible. The OES is to document the exercises by conducting a critique, and by using this information to revise the EOP as appropriate. Just as the OES does not have a formal training plan in place, neither does it currently have a formal exercise program in place. Under the pending training and exercise program (MESDP), OES will conduct annual County EOC section tabletop exercises and a biennial functional exercise. Presently, on average, the EOC management conducts one low level exercise per year. A full-scale EOC exercise has not been conducted in Marin within the last 10 years. On February 21, 2002 the OES conducted a countywide functional exercise based upon a winter storm scenario. The exercise, called All Washed Up, involved 24 agencies and jurisdictions in nine activated emergency operations centers, as well as personnel in the Coastal Region EOC (State), and three emergency communications centers. Post exercise evaluation by those participating in the exercise, as well as by outside evaluators, provided mixed opinions on the success of the exercise. On the positive side, the exercise gave many new participants an opportunity to experience "controlled chaos" in an emergency situation. It also demonstrated that many of the participants understood their responsibilities and tasks. However, other areas were identified as needing improvement, including the following: 1. The existing EOC facility does not meet minimum requirements. It is too small, noisy, and lacks adequate equipment and supplies. The combination of these deficiencies makes it difficult to carry out communications among/between participants. (Note previous discussion of EOC deficiencies.) 2. Lack of training among the participants was evident. There was a sense that some participants were uncomfortable with their designated roles and did not know their duties. 3, There was a lack of leadership presence in all aspects and at all times during the exercise. For example, one section (Finance) did not have any representation at any time in the exercise. There is a need to ensure someone has responsibility for every position. In some instances lack of sufficient advance notification of the exercise may have resulted in reduced participation. Marin Emergency Staff Development Program OES is in the process of developing a formal, comprehensive training program for all County employees and Emergency Operations Center staff, The Marin Emergency Staff Development Program (MESDP) will identify the required and recommended training courses for each staff position within the EOC, as well as minimum emergency preparedness training for all County employees and training for Building Evacuation Team members. As part of the pending comprehensive training program, OES will DP-1 II e . e Emergency Management and Operations in Marin County June 2002 propose to have all new employees and elected officials take the SEMS Introductory module and a safety class, as part of new employee orientation. Under the new training program, EOC management (management section staff and section chiefs) will be required annually to take 16 hours of training and participate in 6 hours of exercises. Other EOC staff will be required annually to take 6 hours of training and participate in 4 hours of exercises. Once assigned as EOC management or staff, an employee will be responsible for fulfilling the required training and exercise obligations. Department heads, managers, and supervisors are to acknowledge and accommodate the employee's role as part of the EOC staff. To support staff in fulfilling their training requirements, a training fund will be established and administered by OES. OES is also currently working to expand the number of EOC staff positions and the number of employees who will fill those positions. OES indicates that an EOC staff of 210 is required to sustain round the clock EOC operations, Once all EOC staff are identified, OES will compare the training records for each individual with the identified training requirements as indicated in the new training program. Those with deficiencies will be tasked to take the required courses. The process of identifying staff, evaluating training deficits, and organizing and conducting training is targeted for completion by early fall 2003. The new training program is designed to establish an ongoing annual training cycle culminating in biennial exercises. This effort is to be coordinated with the efforts undertaken by all cities and special districts in the County. The current OES management team has made significant strides to improve training and exercises and to thereby enhance the County's ability to function as an Operational Area in a disaster. Still, there are many shortcomings regarding training of EOC staff, The most recent exercise (February 2002) confirmed the need for additional training and more exercises to ensure that Marin County is ready to adequately respond to a disaster. Further advancements in training and exercises should result from OES's Marin Emergency Staff Development Program. Marin Emergency Radio Authority (MERA) The Marin Emergency Radio Authority (MERA) is a joint powers authority which was formed by 26 public service agencies in the County. It was formed in order to improve and coordinate public safety radio communications, which are currently out of date and inadequate. It is a technologically enhanced system and is a critical component of the County's disaster preparedness system. However, it remains mired in legal disputes over issues that continue to delay its activation and, in so doing, threaten the safety of the citizens of the County. Last year, the Grand Jury investigated MERA and concluded that the system was badly needed but that its implementation was being delayed through a series of events that DP-1 12 e, e e. Emergency Management and Operations in Marin County June 2002 should have been better anticipated and planned for. The reader is referred to the report, "Marin Emergency Radio Authority (MERA)", by the 2000-2001 Grand Jury. However, the following is a brief summary of the highlights of that report as well as a status update: \ Statement of Need In Marin County there are over 60 separate public safety and public service agencies, including police, ,fire, emergency medical, public works and other governmental users. Together they have over 2,000 mobile and portable radios which use over 200 different radio channels, most of which operate in low- and high-band VHF. Much of this equipment and its supporting infrastructure are 20-25 years old and use bandwidths which are becoming increasingly unavailable and overwhelmed by traffic demand. This often results in unintelligible communications due to multiple users attempting to simultaneously broadcast on a radio channel which is being shared by others. Furthermore, manufacturers are now producing equipment designed to be used on UHF, UHF-T, and 800 MHz frequencies, thereby making it increasingly difficult to find replacement devices and infrastructure for older equipment. Last year's Grand Jury report cited two examples where the current system proved inadequate, One involved the Mt. Vision fire in West Marin a few years ago where mutual aid fire and police agencies were unable to effectively communicate and thus unable to efficiently coordinate their activities. The other was a police chase and subsequent shooting that involved several police jurisdictions along highway 101. Police officers in San Rafael were unable to communicate with a neighboring police department because they could not access a common frequency. More recently. the case for MERA was strengthened by the experience in New York during the 9-11 horror when police and fire officials were unable to communicate with each other on their low bandwidth communication systems. Overview of MERA MERA is a joint powers agency which created the specifications for a new coordinated communications system. It then let the contract to Motorola to design the system and provide the mobile and hand held radios as well as the senders, receivers, and dispatch infrastructure. It has also issued bonds totaling $26 million to pay for the total package. The system relies on 13 fixed antennas located on sites both within and outside of the County. It was supposed to have been operational by December 2001. Of the 13 antennas, 9 have been built and three more are nearly ready to be erected. The only one whose future is in doubt is one which is to be located on the Tiburon peninsula, That tower is critical to the system since it will be the only antenna in southern Marin County, MERA's preferred site for the antenna is Mt. Tiburon, and that site went through a full public EIR process. At no time during the publicly noticed hearings on the EIR (which included simulated photographs with the tower drawn in to Dp.1 13 e Emergency Management and Operations in Marin County June 2002 show how it would affect the landscape) did either the Town of Tiburon or any of its citizens raise any complaints. It was only later that the officials in Tiburon balked at the antenna, and the Town's Planning Commission voted it down. MERA has attempted unsuccessfully to find other locations.6 Meanwhile, equipment has been delivered to the County by Motorola, and much of it sits gathering dust in a warehouse. Just recently, however, MERA was successful in an eminent domain action to secure the Tiburon site and thus, the right to proceed with construction of the antenna. The MERA system is too important to the safety of all of the citizens of Marin County to have it bogged down in a legal dispute in just one city. Unfortunately, it is MERA's position that the southern Marin portion of the system must be totally in place in order for MERA to activate any part of it at all. We understand that every police and fire chief in Marin (including Tiburon's) have written to the Tiburon Town Council members asking them to help break the logjam and let the tower be built. Ten other communities in Marin and two in Sonoma have accepted the presence of a MERA antenna and have put aside their own aesthetic concerns in favor of the health and safety of the County as a whole. The Town of Tiburon is the lone holdout. While the threat of a terrorist attack in Marin may be slight, the threats of wildfires on Mt. Tamalpais and of major earthquakes throughout the County are not. The health and safety of perhaps thousands of the residents of this County may one day (and perhaps soon) be dependent on MERA being in place, It's time to get beyond politics. e Apathy of the Public and County Staff e Public and Government apathy toward Disaster Preparedness is a continuing and ongoing problem. The 9-11 attack brought the need for disaster preparedness to the forefront in the public mind. However, as the latter event recedes in time, advanced disaster planning is given less priority. It is human nature to believe that a large-scale disaster such as an earthquake, fire or terrorist attack happens to other people. To overcome this natural tendency, it is encumbent upon the local County and city governments to provide outreach programs for disaster preparedness. The 1995 Grand Jury Report on Disaster Preparedness also underscored this finding. Public Awareness The county has two main vehicles to promote public awareness: 1. Marin County Disaster Council (DISCO) 6 MERA attempted to persuade the State Parks Board to allow the antenna to be built on Mt Livermore on Angel Island, Mt Livermore is being restored to a natural state, and all non-natural conditions are being removed, including roads, Hence, both installation and later servicing are impossible. Other sites in Tiburon were investigated; however, none was included in the EJR. Therefore, selecting an alternative site would, at minimum, entail further EIR related delays, DP-1 14 emergency Management and Operations in Marin County June 2002 e 2. A County web site DISCO is an official advisory Council to the Marin County Board of Supervisors. Its purpose is to lead ongoing efforts to improve disaster preparedness countywide. DISCO consists of 16 voting members appointed by the Board of Supervisors. They meet once a quarter and report to the Board of Supervisors once a year. As authorized by Marin Code 2.99 et seq. DISCO's duties are to: 1. Review and evaluate disaster preparedness progress in public and private sectors 2. Promote disaster preparedness through communication and education 3. Report annually to the Board of Supervisors One of the major accomplishments of DISCO is the promotion of Community Emergency Response Training (CERT). CERT is a 10-hour training class taught to Marin County residents by Marin County Fire Department personnel. The intent is to train and prepare volunteers to achieve a higher level of basic skills in: e 1. Earthquake survival 2. Fire prevention and suppression 3, Search and rescue disaster first aid 4, Emergency preparedness. After 9-11, the County received 150 requests for CERT training that required additional classes. CERT training is arranged by calling 389-4138 and the cost of the class is $25,00. The Council is currently arranging for a class on Medical Preparedness that will teach first aid. The Council has set up a committee to look into post-disaster housing. The County's web site? includes disaster preparedness under "Emergency Education and Preparedness". The web site covers a wide variety of subjects such as Disaster Preparation Kits, the Emergency Alert System. CERT and disaster preparation for specific types of hazards such as earthquakes, fires, etc. The County is working to bring it up to date, including the capability to provide real time information about emergencies when they happen. The site is easy to access and is a good source of public information. In the opinion of the Grand Jury, there is an opportunity for DISCO to expand its mission to include overall disaster preparedness policy development for the County and for its constituent cities, stronger plan coordination efforts, and priority setting in the allocation of grants and funding from state and federal sources. . e 7 The current web site is www,co,marin,ca,us/defaull.asp, This will soon become www,marincounty,com. DP-1 15 . . Emergency Management and Operations in Marin County June 2002 County Government Leadership Overcoming apathy within the County government begins at the top with the Board of Supervisors. However, County leadership, except for one of the board members, is not fully involved as far as active participation is concerned. The next level of County leadership is the managers of the various departments within the County government. Currently, there are no written procedures outlining the specific responsibilities of department heads8 in the event of a disaster and department heads are not informed of EOP revisions. FINDINGS 1. The Office of Emergency Services (OES) is currently well staffed and organized under experienced professional management. This highly motivated staff is working hard to update all aspects of the emergency service plans and operations. 2, The Marin County Emergency Operations Center (EOC) is in a seismically suspect room in the utility corridor of the Civic Center. The space approximates 1200 square feet, which is far short of the 3.000 - 3,500 square feet considered necessary for optimal performance in a major event, when between 65 and 75 people would need to be accommodated at one time. 3, In addition to space limitations, the present EOC location lacks bathroom facilities, a break area, feeding capabilities, noise suppression, adequate ventilation and capacity for more computer stations and communications equipment. It does not satisfy current Americans with Disabilities Act (ADA) requirements. A countywide functional disaster exercise held on February 21, 2002, highlighted a number of the physical and communication deficiencies described above. 4. The present alternate EOC is located in the Exhibit Hall at the Civic Center. There is limited computer and phone capability. There is no dedicated backup electrical power. 5. The OES is located on North San Pedro Road, some distance from the Civic Center. The Department Operations Center (DOC) of the Health and Human Services Department (H&HS) is located in San Rafael's Northgate Industrial Park. Their co- location with the EOC would be advantageous as observed 'in other jurisdictions, 6. The organization of the OES and EOC does not clearly delineate the responsibilities and functions among the Board of Supervisors, the Sheriffs Department, H&HS, and the County Administrator regarding the reporting lines of the OES staff. . 8 The sole exception is the head of the County's Health and Human Services Department. DP-1 16 e e e Emergency Management and Operations in Marin County June 2002 7. Plans to relocate the present EOC to an interim location to overcome identified deficiencies are under consideration by the OES and the County Administrator. The interim period could be five years or longer. Several sites are under consideration including administrative and conference areas in the County Jail, the Hall of Justice and off-site commercial space. A December 2002 completion date was originally targeted but is probably unrealistic. 8. The Board of Supervisors has commissioned a feasibility study to construct an "essential services" building which would house the EOC, communication department, dispatch center and other critical services. The timeline on development of such a structure, considering planning, funding and construction, would span five years or longer. 9, Outside funding from State and Federal sources is available for disaster and terrorism projects and can be used to support training and first responder equipment. 10. "State-of-the-art" EOCs in nearby communities provide evidence of the importance of well-designed, spacious quarters for disaster workers. They are models for future building plans in the County. The majority of Bay Area counties have, or are in the process of establishing, contemporary EOCs. 11. EGC primary and alternate staff requires more training. The majority of EOC staff have attended at least one SEMS module, though typically only the introductory course. Classes are offered through OES but attendance is sparse. 12. OES has not conducted sufficient exercises in the past. The recent OES exercise, All Washed Up, was well designed and executed, but confirmed the need for better- trained staff and regular exercises to practice required skills. 13, The Marin County Disaster Council is charged with encouraging public participation in disaster preparedness through its Community Emergency Response Training (CERT) program. An opportunity exists for DISCO to expand its mission to include overall policy development, stronger plan coordination and priority setting for grant allocation. 14. The Marin Emergency Radio Authority (MERA) radio communications system is designed and partially constructed. Final antennae installation in Tiburon is mired in a legal and neighborhood dispute over the selected site that could delay its completion beyond the end of 2002. 15. The Board of Supervisors and the County Administrator's Office appear to lack a sense of priority and urgency for disaster preparedness and the need for training and exercises among the County staff. DP-1 17 Emergency Management and Operations in Marin County June 2002 . RECOMMENDA liONS 1. The present, inadequate Emergency Operations Center (EOG) should be vacated and relocated on an interim basis to a more secure and efficiently designed space of at least 3000 square feet. Implementation of the project should be expedited to assure its completion no later than the end of 2002. The Board of Supervisors, Sheriff, County Administrator, H&HS, and OES need to work in coordination to address this issue with a sense of urgency 2. The present alternate EOC should be upgraded to assure adequate communications as well as operational and utility sustainability, and to meet ADA requirements. If these standards cannot be achieved, a new location should be secured. 3. The Board of Supervisors should actively pursue an effort to construct a permanent essential services building to house the EOC, dispatch center, the OES, the DOC, communications operations, and other critical services. This building should meet current California building codes and have, at a minimum, a seismic safety structure, backup power and utilities. perimeter security, tie-in with dispatch centers, computer capabilities, and support for staff meals and breaks. A timeline of five years should be established to achieve this objective, . 4. OES should move forward with completion of the Marin Emergency Staff Development Program. The Board of Supervisors should adopt it with a sense of urgency, Implementation of the program should commence immediately. 5. OES should conduct more frequent exercises. Participants should be made aware of the importance of the exercises and Department heads, managers and supervisors should support their staff and require participation. 6, The Board of Supervisors should encourage Department Division Heads within the county government to be more involved in supporting disaster preparedness. The Board of Supervisors should consider putting disaster preparedness in job descriptions and, personnel evaluations and in the Mission Statements of the various departments. 7. The Emergency Operations Plan should be revised to clearly identify the separation and/or overlaps in responsibilities between the BOS, the Sheriff and the County Administrator relative to the operations of the OES office. The OES staff should have a clear understanding of the various roles and their reporting relationships to each of the major participants in emergency operations. 8. The Board of Supervisors should expand the mission of the Marin County Disaster Council (DISCO) to include policy development, planned coordination with other e jurisdictions, and priority setting in grant allocation. DP-1 18 e e e Emergency' Management and Operations in Marin County June 2002 9. MERA should continue to work toward resolving the stalemate with affected parties in the Town of Tiburon relating to the construction of a fixed antenna. The involved parties should, to the extent they are not already, be made aware that delays in constructing the antenna in Tiburon compromises activation of the system for the entire county. REQUEST FOR RESPONSES Pursuant to Penal Code section 933.05, The Grand Jury requests responses as follows: . From the Marin County Board of Supervisors to Findings 1 - ,15; and to Recommendations 1 - 9. . From the Marin County Sheriff to Findings 1 - 7, 9, 11 and 12; and to Recommendations 1, 2, 4, 5, and 7. . From the Tiburon Town Council to Finding 14; and to Recommendation 9. DP-1 19 e Town of Tiburon STAFF REPORT AGENDA ITEM ~ TO: Mayor and Members of the Town Council FROM: Pat echols, Director of Public Works/ Town Engineer SUBJECT: Authorize Purchase of Sweeper for Downtown~ , MEETING DATE: August 21,2002 REVIEWED BY: ~ BACKGROUND The 2002-2003 Municipal Budget included the acquisition of a sweeper/scrubber machine. The main need for the machine is to clean the brick sidewalks and Ferry Plaza in the downtown area. These areas are particularly prone to frequent buildup of grease and other debris which currently can only be cleaned by labor-intensive pressure washing. e Staff determined that a sweeping/scrubber machine was the long term maintenance solution and identified the Tennant 7400 Power Scrubber as the ideal machine to accomplish this task, The Tennant is used in San Francisco to clean the municipal garages and the plazas at Pacific Bell Park. It can also be used to sweep the multi-use path which would result in greater efficiency and reduced use of gas-powered leaf blowers by Town maintenance workers. Staff originally had obtained a quotation of $38,000 for the scrubber during budget preparation. The manufacturer indicated recently that the manufacturer's price was adjusted to $39,835. This is a factory direct cost in accordance with the California Multiple Award Schedule (CMAS) contract. Additionally, a 55-gallon drum of cleaning solution needs to be purchased at a cost of $703. RECOMMENDATION It is recommended that the Town Council authorize the purchase of the Tennant 7400 Power Scrubber at a total cost of $40,537,63 and approve a budget amendment of $2,538 from Capital Equipment Replacement Reserve. e . , . . O.L~~,!,,~ o~7./\ I-I~,;,-=}=o.'. ... .... '" ,- ~._~," . ~;k~S;s .,O,qiVT;.,tl . : August 15, 2002 1 of 1 e e e Town of Tiburon STAFF REPORT AGENDA ITEM L TO: MAYOR AND MEMBERS OF TOWN COUNCIL FROM: DANIEL M, WATROUS, seNIOR PLANNER 3 PALMER COURT CONTINUANCE OF APPEAL OF DESIGN REVIEW BOARD DeCISION TO APPROVE SITE PLAN AND ARCHITECTURAL REVIEW FOR THE CONSTRUCTION OF A NEW SINGLE-FAMILY DWELLING SUBJECT: MEETING DATE: AUGUST 212002 REVIEWED BY: SUMMARY On July 18, 2002, the Tiburon Design Review Board approved a Site Plan and Architectural Review application for the construction of a new single-family dwelling on property located at 3 Palmer Court, Art and Florence Kenney, owners of the adjacent property at 654 Tiburon Boulevard, have now appealed this decision to the Town Council. The Appellants have informed Staff that the applicants did not installed connecting lines or ribbons between the story poles for this project 14 days in advance of the Town Council hearing scheduled for August 21,2002, Therefore, in accordance with Town Council Policy 2002-01, the hearing has been continued to the September 4, 2002 meeting, . , . .:'~Ii'O!-V~~';' Oi " "'I_~ ,"'-C.O::~-:"..... .... . ,-~.. " ::;--~"=,'" ~~J~:~~~~(~~ ." o.o\liw"IA"\~ . : August 21, 2002 1 of 1