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HomeMy WebLinkAboutTC Res 2010-03-17J RECORDING REQUESTED; ` WHEN RECORDED RETURN TO: Town Clerk Town of Tiburon 1505 Tiburon Boulevard Tiburon, CA 94920 RESOLUTION NO. 15-2010 2010-001 3GBc3 ^~eeordea Official Records County of Marin JOAN C. ; HAYEER Assessor-Recorder 07:5.5AM 25-tsar-2010 a Aaae 1 of 1 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON DENYING AN APPEAL BY PETER PURSLEY, ET AL, OF THE PLANNING COMMISSION'S APPROVAL OF A CONDITIONAL USE PERMIT FOR A CO-LOCATED WIRELESS COMMUNICATIONS FACILITY LOCATED AT 1 BLACKFIELD DRIVE IN THE COVE SHOPPING CENTER AND MODIFYING CERTAIN CONDITIONS OF APPROVAL (ASSESSOR PARCEL NO. 034-212-18) WHEREAS, on January 13, 2010, the Planning Commission held a public hearing and approved a conditional use permit application (File #10903) filed by Clear Wireless LLC to install and operate a co-located wireless communications facility at 1 Blackfield Drive in the Cove Shopping Center; and WHEREAS, the conditional approval was appealed in a timely manner by Peter Pursley, et al, on the basis that the applicant's radio frequency compliance report was defective and that there was a lack of reasonable public notice regarding the application; and WHEREAS, the Town Council held a public hearing on March 3, 2010, and after receiving testimony and reviewing all evidence in the record, determined that the appeal was without merit and directed staff to prepare a resolution denying the appeal while modifying conditions of approval regarding proximity warning signage associated with the use. NOW, THEREFORE, BE IT RESOLVED that the Town Council of the Town of Tiburon hereby denies the appeal of Peter Pursley, et al. BE IT FURTHER RESOLVED that the Town Council hereby replaces original Condition No. 25 of the Planning Commission's approval with new Condition Nos. 25-27 and renumbers original Condition No. 26 to Condition No. 28 as follows: 25. The permit holder shall place and maintain permanent RF Notice signs in English and Spanish adjacent to its equipment cabinets. The signage must be fully compliant with ANSI C95.2 for color, symbol, and content conventions. All such signage shall at all times provide a working local or toll-free telephone number to reach the permit holders' network operations center, and Town Council Resolution No. 15-2010 03/17/2010 Page 1 of 7 RECORDING REQUESTED; WHEN RECORDED RETURN TO: Town Clerk Town of Tiburon 1505 Tiburon Boulevard Tiburon, CA 94920 RESOLUTION NO. 15-2010 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON DENYING AN APPEAL BY PETER PURSLEY, ET AL, OF THE PLANNING COMMISSION'S APPROVAL OF A CONDITIONAL USE PERMIT FOR A CO-LOCATED WIRELESS COMMUNICATIONS FACILITY LOCATED AT 1 BLACKFIELD DRIVE IN THE COVE SHOPPING CENTER AND MODIFYING CERTAIN CONDITIONS OF APPROVAL (ASSESSOR PARCEL NO. 034-212-18) WHEREAS, on January 13, 2010, the Planning Commission held a public hearing and approved a conditional use permit application (File #10903) filed by Clear Wireless LLC to install and operate a co-located wireless communications facility at 1 Blackfield Drive in the Cove Shopping Center; and WHEREAS, the conditional approval was appealed in a timely manner by Peter Pursley, et al, on the basis that the applicant's radio frequency compliance report was defective and that there was a lack of reasonable public notice regarding the application; and WHEREAS, the Town Council held a public hearing on March 3, 2010, and after receiving testimony and reviewing all evidence in the record, determined that the appeal was without merit and directed staff to prepare a resolution denying the appeal while modifying conditions of approval regarding proximity warning signage associated with the use. NOW, THEREFORE, BE IT RESOLVED that the Town Council of the Town of Tiburon hereby denies the appeal of Peter Pursley, et al. BE IT FURTHER RESOLVED that the Town Council hereby replaces original Condition No. 25 of the Planning Commission's approval with new Condition Nos. 25-27 and renumbers original Condition No. 26 to Condition No. 28 as follows: 25. The permit holder shall place and maintain permanent RF Notice signs in English and Spanish adjacent to its equipment cabinets. The signage must be fully compliant with ANSI C95.2 for color, symbol, and content conventions. All such signage shall at all times provide a working local or toll-free telephone number to reach the permit holders' network operations center, and Town Council Resolution No. 15-2010 03/17/2010 Page 1 of 7 such telephone number shall be able to reach a live person who can exert transmitter power-down control over this site as required by the FCC. Said signs shall comply with any applicable federal regulations and shall be installed prior to commencement of the use. 26. The permit holder shall place and maintain permanent RF Notice signs in English and Spanish on each face of the false chimney. The signage must be fully compliant with ANSI C95.2 for color, symbol, and content conventions. All such signage shall at all times provide a working local or toll-free telephone number to reach the permit holders' network operations center, and such telephone number shall be able to reach a live person who can exert transmitter power-down control over this site as required by the FCC. Said signs shall comply with any applicable federal regulations and shall be installed prior to commencement of the use. 27. The permit holder's equipment enclosure shall be kept locked at all times when an authorized carrier representative is not present at the equipment enclosure. 28. The Town of Tiburon reserves the right to amend or revoke this permit for cause, in accordance with the provisions of the Tiburon Municipal Code. BE IT FURTHER RESOLVED that the final conditions of approval for the permit are attached as Exhibit "A" hereto. The Town Council authorizes the Planning Commission to amend such conditions as may be determined necessary or desirable through its future reviews or renewals of the conditional use permit. PASSED AND ADOPTED at a regular meeting of the Town Council on March 17, 2010, by the following vote: AYES: COUNCILMEMBERS: Collins, Fraser, Fredericks & O'Donnell NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: Slavitz s CHARD COLLINS, MA R TOWN OF TIBURON ATTEST: DIANE CRANE IACOPI, TOWN CLERK Town Council Resolution No. 15-2010 03/17/2010 Page 2 of 7 EXHIBIT "A" CONDITIONS OF APPROVAL FILE #10903 1 BLACKFIELD DRIVE CONDITIONAL USE PERMIT FOR A WIRELESS COMMUNICATIONS FACILITY 1. The use shall be in substantial conformance with the application as submitted, as modified by the conditions of approval herein. Any substantive intensification of operation or use, as determined within the reasonable discretion of the Director of Community Development, shall require an amendment to this use permit. 2. This conditional use permit shall be valid for an initial period of ten (10) years from the date of final discretionary approval. The permit may be extended for a period no longer than five (5) years after the holding of a public hearing for the purposes of verifying continued compliance with the findings and conditions of approval under which the application was originally approved, as well as compliance with any other applicable provisions provided for in the Municipal Code. 3. The permit holder shall notify the Town, in writing, that the facility has become operational within five (5) days after it has become operational. 4. Within sixty (60) days after a WCF becomes operational, the permit holder shall provide the Town with a report from a certified provider of such specialized studies, confirming that the actual EMF radiation levels, operating alone and in combination with other approved facilities, substantially conform to the pre-approval EMF report, and confirming that EMF levels zio not exceed current standards for permissible human exposure to EMF as adopted by the FCC, and measured at the property line or nearest point of public access, whichever is closer, in the direction of maximum radiation from each antenna. Reports shall specify EMF levels with the site operating at full power and baseline levels with the site inoperative. Technical data shall be presented showing levels relative to the currently permitted Federal regulations. Raw measurements shall be provided as an appendix. In addition, the report shall include, in lay terms, a summary of the technical data as presented in the report. EMF reports required herein shall be paid for by the permit holder and prepared by a third party consultant acceptable to the Director of Community Development, using a testing protocol acceptable to the Director of Community Development. 5. Following the initial sixty (60) day report required above, the permit holder shall have EMF radiation levels of the WCF tested, not earlier than ninety (90) days prior to every required renewal of the permit. The permit holder shall submit the written report, along with application for Town Council Resolution No. 15-2010 03/17/2010 Page 3 of 7 renewal, at least sixty (60) days prior to the date of expiration of the conditional use permit. 6. The applicant shall obtain all necessary permits from the Tiburon Building Division for the construction of the facility and associated work. 7. The permit holder shall at all times comply with requirements of the applicable Fire Protection District regarding fire safety, which may include installation of an automatic fire extinguishing system, installation of a remote monitoring system, or such other compliance techniques as determined by the Fire Marshal. Required fire safety measures shall be completed and required fire safety equipment shall be installed and in operation prior to final building inspection and commencement of use of the WCF. 8. The permit holder shall maintain all WCF facilities in an undamaged condition. If visibly damaged, the permit holder shall repair or replace the facilities as necessary achieve consistency with this approval. 9. If the American National Standards Institute (ANSI) and the Institute of Electronics and Electrical Engineers (IEEE) or other regulating body establish a more stringent standard(s) for human exposure to radio frequency radiation or other electromagnetic field radiation which is determined by the Director of Community Development to be applicable to this WCF, the permit holder shall be required to, upon consultation with the Community Development Department, file for a review of this Conditional Use Permit within sixty (60) days and evaluate the existing cumulative levels of EMF radiation emissions from the project site in accordance with the new standard(s). Any exceeding of the new standards(s) on the project site, as demonstrated in radio frequency evaluations required herein, shall provide grounds for the Town to revoke or amend- this Conditional Use Permit as provided in the Tiburon Municipal Code. 10. No advertising signage or identifying logos are to be placed on the WCF, with the exception of small identification plates for emergency notification or warning notices. Sign permits shall be secured prior to installation for all signs subject to a permit as required by Chapter 16A of the Tiburon Municipal Code. 11. There shall be no exterior lighting of the WCF unless required by state or federal law, with the exception of emergency lighting for the equipment cabinets or as otherwise required by these conditions of approval. 12. Permitted hours for routine testing and servicing (excluding emergency repairs) shall be 8:00 a.m. to 6:00 p.m., Monday through Friday. 13. Typical vehicle trips resulting from the ongoing operation and maintenance of this WCF are anticipated to be less than five (5) per Town Council Resolution No. 15-2010 03/17/2010 Page 4 of 7 month and shall not substantially exceed that number. 14. The permit holder shall properly maintain, and ultimately remove if required, the WCF in compliance with the provisions of Section 16- 4.13.080 or successor sections thereto of the Municipal Code, the Town's WCF Standards, and any conditions of permit approval. Prior to final building inspection and commencement of the WCF use, the permit holder shall post a financial security, such as a letter of credit, acceptable to the Town Attorney to ensure that the approved facility is properly maintained and will be removed if required. The amount of the security shall be 125% of the estimated cost to remove the facility and return the surrounding area to its condition prior to installation. 15. The permit holder shall fund all costs associated with ongoing peer review of technical information and/or the Town's retention of an independent consultant to measure electromagnetic radiation from the WCF for compliance with applicable FCC regulations, or for other purposes as set forth in Section III.B.25.b of the Town's WCF Standards, or successor sections thereto. Permit holder may be required to post a financial security to cover such costs. 16. The owner of the site, all other interest holders and the permit holder shall agree to defend, indemnify, and hold harmless the Town and any of its boards, commissions, agents, officers, and employees from all liability, losses, damages, costs, expenses and fees resulting from any claim or action not made or brought by the Town involving the facility, including, but not limited to, the approval or conditional approval of a permit for the facility or from any claim or action to attack, set aside, void, or annul the approval of permit applications or any other license with respect to this facility, or involving its installation, use or operation. The Town shall promptly notify the permit holder of any such claim, action or proceeding. The Town shall retain the right to participate in any claim, action, or proceeding, including the selection of its own legal counsel. 17. In the event that the Town shall in the future adopt legislation providing for the payment of franchise or other fees by entities maintaining WCFs within the Town, the permit holder shall be subject to such legislation and shall begin paying such fees upon the effective date of said legislation. 18. The permit holder shall not encumber, sublease, assign, transfer or sell (including the sale, acquisition, merger or consolidation of permit holder), a permitted WCF for use by anyone, including another carrier, without first providing not less than thirty (30) days written notice thereof to the Director of Community Development. 19. The applicant shall be required to fund all costs associated with independent peer review studies and reports commissioned by the Town Town Council Resolution No. 15-2010 03/17/2010 Page 5 of 7 of any information submitted by the applicant, or the independent preparation of such information by the Town or its consultants. Such costs shall include, without limitation, the cost of third-party consultants to verify the predicted and actual measurements of electromagnetic radiation for compliance with current applicable FCC guidelines and shall also include, without limitation, a third-party report evaluating the feasibility of alternative facility designs and locations (including multiple site alternatives) that make recommendations on the best alternatives (including multiple site alternatives) location(s) for providing the desired level of service coverage. Costs covered by this section shall include all costs incurred by the Town in obtaining independent peer review commissioned by the Town, including, without limitation, the consultant's fee and the Town's overhead cost associated with staff time expended on administration of the contracts. All independent peer reviewers and consultants shall certify in their reports that they do not and have not performed services for the applicant or for any entity associated with the applicant and that such peer reviewers and consultants have no conflicts of interest whatsoever with respect to their work for the Town. 20. The installation of antennas or equipment for other carriers or service providers in locations where others hold a permit or permits for WCFs shall require compliance with the Town's permit approval process and, where applicable, may take the form of an amendment to an existing permit or a new permit. 21. If the site constitutes a potential co-location or shared-location site, the permit holder shall not enter into an exclusive lease, license, or other arrangement for the use of the site, unless specifically authorized in the Town's permit approval. 22. With respect the provisions of Section 16-4.13.070 of the Municipal Code or successor sections thereto regarding correction of interference, the permit holder shall be responsible for all labor and equipment costs for determining the source of the interference, all costs associated with eliminating the interference, (including but not limited to filtering, installing radio frequency cavities, installing directional antennas, powering down systems and engineering analysis), and all costs arising from third party claims against the Town attributable to such interference. 23. These conditions of approval are in addition to any lease provisions set forth in a future lease agreement between the Town of Tiburon and the permit holder. 24. Prior to issuance of the building permit, applicant shall identify obsolete or unused roof projections on the building and arrange for their removal as part of the installation work. Town Council Resolution No. 15-2010 03/17/2010 Page 6 of 7 25. The permit holder shall place and maintain permanent RF Notice signs in English and Spanish adjacent to its equipment cabinets. The signage must be fully compliant with ANSI C95.2 for color, symbol, and content conventions. All such signage shall at all times provide a working local or toll-free telephone number to reach the permit holders' network operations center, and such telephone number shall be able to reach a live person who can exert transmitter power-down control over this site as required by the FCC. Said signs shall comply with any applicable federal regulations and shall be installed prior to commencement of the use. 26. The permit holder shall place and maintain permanent RF Notice signs in English and Spanish on each face of the false chimney. The signage must be fully compliant with ANSI C95.2 for color, symbol, and content conventions. All such signage shall at all times provide a working local or toll-free telephone number to reach the permit holders' network operations center, and such telephone number shall be able to reach a live person who can exert transmitter power-down control over this site as required by the FCC. Said signs shall comply with any applicable federal regulations and shall be installed prior to commencement of the use. 27. The permit holder's equipment enclosure shall be kept locked at all times when an authorized carrier representative is not present at the equipment enclosure. 28. The Town of Tiburon reserves the right to amend or revoke this permit for cause, in accordance with the provisions of the Tiburon Municipal Code. END Town Council Resolution No. 15-2010 03/17/2010 Page 7 of 7