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HomeMy WebLinkAboutTC Min 2002-07-31 ,.-.. TOWN COUNCIL MINUTES 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, California. ROLL CALL PRESENT: COUNCILMEMBERS: Berger, Fredericks, Gram, Slavitz, Thompson PRESENT: EX OFFICIO: Town Manager Mcintyre, Town Attorney Danforth, Director of Community Development Anderson, Senior Planner Watrous, Director of Public Worksffown Engineer Echols, 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 1. Recommendation by Town Manager, Town Attorney and Director of Community Development - Review and Consider Action on a Project to Install an Emergency Radio 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 banded together in 1998 to form a Joint Powers Authority which created MERA, and subsequently sold $27 million in bonds for a new system. A system-wide EIR was subsequently approved by the MERA Board for 27 sites; only one site was located Southern Marin. Mclntyre 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 of Tiburon. The first site was 99-1/2 Mt. Tiburon Road and 145 Sugarloafwas 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 2001 MERA, Town Staff and interested Mt. Tiburon residents pursued the Town Council Minutes # 17- 2002 July 31,2002 Page I r--- 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 any nearby residences. According to Mcintyre, after numerous meetings with 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 the 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 by the County. McIntyre said that Woltback Ridge in Sausalito, home of an 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). r'" Mr. Mcintyre answered the question of why 145 Sugarloaf was 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 proceed at the Mt Tiburon site without Town approval. He also said that the Town Council was uncomfortable 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 of that 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 ofa 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 SugarloafDrive, would contain a shed, propane tank and generator, a 48-foot monopole which would be 13 inches in diameter and a 10- foot whip antenna atop it. Therefore, Anderson said, the antenna at Sugarloafwould be 58 feet Town Council Minutes # 17- 2002 July 31,2002 Page 2 I""'-- in height compared to 72 feet at 99-1/2 Mt. Tiburon Road. Anderson said that the closest house to the monopole was 141 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 SugarloafDrive. He stated that the two pine trees that currently provided screening from 141 SugarloafDrive would be removed [by 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 AlC 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 mitigations, 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 I % at 109 Mt. Tiburon Road. These percentages were compared to 21.6% at the Zack home (99 Mt. Tiburon Road), adjacent to the 99-1/2 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 the Mt. Tiburon site. /'""'0- Town Attorney Danforth reviewed some of the questions concerning the MERA application relating to the environmental documents. She said that the MERA EIR was certified in 2000 and 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 # 17- 2002 July 31.2002 Page 3 r-- subsequent EIR was only allowed under certain 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 information of substantial importance to the project (as defined by the Guidelines), the Town cannot require a new EIR. 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 of the 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 fmdings set forth in the draft resolution. Jeff Pellegrini of Green 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 "radio 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 said that the proposed MERA transmitter antennae at 145 Sugarloafhad a very narrow aperture which pointed outward. 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 sq) than the occupational levels. Also, he 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, Pellegrini noted that the RF exposure at the Sugarloaf site was "far below" what was considered safe, and never came close to reaching that limit. Town Council Minutes # 17- 2002 July 31,2002 Page 4 ,,-... In describing the physical facility, Mr. Pellegrini said the top portion of the antenna was a "receive only" component, and that the four-foot microwave connected the site to the rest of the MERA 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 0.1% 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 ornni directional antennae with a combined wattage of 534 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 berm, 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 the new MERA antenna which would be oriented at 270 degrees, away from the street and away 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 berm height (on the MMWD property). Mr. Pellegrini said that the MERA facility at SugarloafDrive 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 of the 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 different locations on the 145 Sugarloaf site, 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 berm, but dropping off to less that I % at 100 feet away from the antenna. Town Council Minutes # 17- 2002 July 31, 2002 Page 5 ,....., 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 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 Zack house. r'. Mr. Zack responded that it did, based on what MERA had shown. Mary Ellen Wetlesen said it was also in the ErR. Vice Mayor Slavitz concurred, stating that on Page V-184 of the ErR 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 Lefkov 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. ,,-... Chief Odetto 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 # 17- 2002 July 31,2002 Page 6 -. 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 outmoded technology. This resulted in unnecessary loss of life, according to Odetto. Chief Odetto 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 current communications systems. ChiefOdetto 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 of its backbone. Chief Odetto 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 Forman, 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 Odetto 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 Forman whether MMWD would litigate on behalf of the neighbors if a company sued for access to the Sugarloaf site for antenna placement. Again, Mr. Forman 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 Forman whether anyone had informed MMWD since the adoption of the ErR that the Town would prefer to have the MERA antenna located elsewhere than in a residential neighborhood. Town Council Minutes # 17- 2002 July 31.2002 Page 7 /"'. Mr. Forman said that he was aware that the Town had rejected the Mt. Tiburon location but noted that MMWD had a different consideration, that is, one of public safety rather than [local] community concern. Mr. Lantier asked whether the 1997 application from Sprint to place an antenna at that location been rejected by MMWD due to vigorous opposition from the neighbors. Mr. Forman replied that he was not on the MMWD Board at the time, and that "our preference" would be not to have antennas in residential areas. Mayor Gram noted that Council would also seek to impose conditions to preclude the use of an approved MERA site by commercial carriers. An unidentified member of the public asked Mr. Pellegrini whether he thought that both sites were "thoroughly safe" with regard to RF's for placement of the MERA antenna. Mr. Pellegrini said that both sites (99-1/2 Mt. Tiburon and 145 Sugarloaf) were within Federal guidelines. An unidentified member of the public asked whether both sites "were equal" with regard to MERA's requirements. Mr. Pellegrini said that question was best answered by MERA but that it was his understanding that both met the MERA [coverage] requirements. /'"' An unidentified member of the public asked Jeff Pellegrini whether he had reviewed the Wolfback Ridge study and whether it was complete, in his opinion. He said that he had reviewed it and found it to be a complete and sound analysis. Mr. Lantier asked whether the Town Attorney would stipulate that the MERA EIR adequately addressed the Sugarloaf site. Mayor Gram said that the Town was not prepared to answer that question. Neil Boorstyn asked whether the Angel Island location had actually been rejected by the Park Service. Councilmember Thompson said that although they had not officially rejected it they had "put up a bureaucratic wall" and had told the Town it would take years to process the application. Councilmember Thompson went on to say that he had asked for public support in a letter to the Ark [in 2001] wherein he had asked residents and other interested parties to write letters to their elected representatives in the State government in order to create a groundswell of support and attempt to overcome the opposition to Angel Island. He said he had received just one letter. -- Robert Wilson asked whether Thompson had pursued political avenues. Councilmember Thompson said that he and several others from the Town and MERA had met with the State Parks Director, Rusty Areias, an appointee of the Governor. He noted that one of the dilemmas was that the Park's mandate was to remove facilities from [Mt. Livermore] rather than install new ones. Town Council Minutes # 17- 2002 July 31,2002 Page 8 r-. 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. Councilmember 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 fmd 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 Town Council Minutes # 17- 2002 July 31,2002 Page 9 I'" location was rejected because the State Park wanted to restore the area. He said that MERA then 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 Sugarloaf site 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, if there was a way to finance a new installation in another 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 if MERA 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 of this 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 of an 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. Town Council Minutes # 17- 2002 July 31,2002 Page 10 ,....., 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 Gram said that the Gilmartin location was not in the original EIR and therefore the Town could not utilize the process of an addendum to the EIR 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 EIR consultant) had objected, citing MERA's exposure to lawsuits if it 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 of MERA, 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 the existing (police and fire) antennas already located at the Sugarloaf site. An unidentified member of the public asked why neither neighborhood received notice ofthe /'"' 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 unwilling 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 Sugarloaf site for five reasons and why, or if, those reasons had in fact changed. Mr. Nichols stated simply that the site was rejected in favor of Mt. 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 watts. Mr. Chuck said that the system as licensed by the FCC had nine channels that could broadcast at 170 watts per channel, but that Town Council Minutes # 17- 2002 July 31,2002 Page 11 - ,....., this would only happen possibly during some big disaster. He said that on a "busy day" the system would be at around 60% capacity but that 25-30% capacity would be more typical. Mr. Lefkov 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 information for the other sites. He said that the location and angles used by Pellegrini were determined 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 confirmed that the Sugarloaf site had been rejected due to the visual impacts of a 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 "voice 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 ofthe area. ~ Councilmember 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 with Town Council conditions in order to achieve our objectives now and in the future as best we can. Town Council Minutes # 17- 2002 July 31.2002 Page 12 - ,....., 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 law which allowed 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 ofthe 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 Rafael 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 Town Council Minutes # 17- 2002 July 31.2002 Page 13 - ~ 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 Sugarloaf site). Councilmember Fredericks said that was precisely the reason the Town wanting to "keep bargaining. " 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 questions, Mayor Gram closed the informal 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 of Tiburon? . 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 sununary 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 ofMERA's ErR because offailure to provide notice to affected residents. Mayor Gram said that the Town had received Mr. Rifkind's letter. He asked for 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 re 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." Town Council Minutes # 17- 2002 July 31,2002 Page 14 - "'"" /'"' 5. Kirk Hansen, former 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. 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 "vote their conscience" and stand up to the bully, MERA; said that litigation would buy some time and that they would work with COP AS and the Town to fight MERA; alternatively, if Council voted for Sugarloaf site, asked for full supplemental EIR. 7. Ed Messerly, 6 Place Moulin - called Staff report a "justification" of a decision already made and that Council's vote would determine who they faced in court but offered support if Town voted against MERA. 8. Warner Zimmerman, 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 berm. 9. Steve Gasser, 96 SugarloafDrive - 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 of RF' 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. 11. Herb Petersen, speaking for Warren Russell, 128 Lyford Drive, read a letter regarding dangers ofRF'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 ofRF'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 Pratt, 95 Mt. Tiburon Road, member of COP AS - goal to not site these antennas in residential neighborhoods; said he was part of the core group ofMt. 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. Town Council Minutes # 17- 2002 July 31,2002 Page 15 ,- ,,-..., 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 of Sugarloaf 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 the process and issue of antenna in residential area; said Town had rules in place and should 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. Councilmember 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 Lefkov, 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 /'"' if a 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 fight 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 Meadowhill 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-off" 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 ofMERA 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. Town Council Minutes # 17- 2002 July 31,2002 Page 16 Oil ,....., 25. Brian Lantier, 141 Sugarloaf, 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. 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 ofMt. Tiburon faced more risk from an antenna sited in their neighborhood than the Sugarloaf residents. He said that if the Town filed a suit against MERA, it would probably lose and have no further recourse. Mayor Gram indicated that he was prepared to vote no on the Sugarloaf site if the neighbors at Mt Tiburon and Sugarloaf agreed 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 wanted 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 ifthe 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 Sugarloaf facility, rather than the whole neighborhood by the Mt. Tiburon facility. 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 confirmed 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 Town Council Minutes # 17- 2002 July 31,2002 Page 17 ~ ,,--... 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's job to make the system operational. Councilmember Thompson asked whether MERA was "open" to the idea of "temporary facilities." Supervisor Kinsey said yes, that MERA would like the community to be as comfortable as possible and that he felt certain that MERA would work with the Town on some sort of "phased implementation." Mayor Gram asked whether MERA would be willing to install a temporary antenna on Sugarloaf. Additionally, a member of the audience asked whether MERA would give the Town more time to find another site. Supervisor Kinsey said that MERA was prepared to move forward on Mt. Tiburon and noted that there was no such thing as a "two-month" (or other short-term) solution. Mayor Gram concurred that it would really take 10-12 months and possibly longer if the State (Parks) were involved. Ron Richards asked ifMERA would contractually agree to move the antenna from either location. Mayor Gram restated and clarified the question to one of, "If we find and deliver another site plus the financing?" /'"' Kinsey replied that he would go back to the MERA Board with the idea of a legally binding vehicle if the Council took some action for a short and long-term solution at the conclusion of its meeting. George Landau asked Mr Kinsey if he could go back and get MERA's answer first before the Council made its decision. Mr. Kinsey said no. Charles Ewald, 77 Mt. Tiburon, said the good will of all parties was needed for a long-term solution. He said that the argument about removing antennas on the Sugarloaf site was "marginally a mitigant," but that the real distinction was that the Mt. Tiburon site would be the introduction of antennas. He said that it would be better to "buy ourselves some time" in the short term and try to remove all the antennas form "the hill." He said that this would not be a final decision but suggested getting "up and running" as quickly and cheaply as possible" and agree that the long-term solution was not going to be found at either site. Barbara Meislin suggested making an arrangement to house affected people temporarily elsewhere until a solution was found. ,,--... Debbie Boorstyn, said she was wary of a temporary solution, in that "temporary turns into permanent." She said the Sugarloafresidents had not had two years to fight MERA and suggested that it was time to "face it and fight." Town Council Minutes # 17- 2002 July 31,2002 Page 18 ,j!:, ,....., Mayor Gram said the Council had to choose between voting against the Sugarloaf site and then MERA would start construction on Mt. Tiburon; or choose a temporary site, but which one? 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 ElR. 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 made Sugarloafthe first choice. He said that a "no" vote by the Council for this location would mean a MERA antenna would be located 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 later. ,,-... 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 Sugarloaflocation; and that she had an e-mail from Director Nichols stating that Sugarloaf 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. Town Council Minutes # 17- 2002 July 31,2002 Page 19 ~ ,....., 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. 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" sites. He said that the 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 Sugarloaf site, 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 "ifMERA 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 reflecting the Council's intention to find another, non-residential site to replace the Sugarloaf facility; 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 muftler; #13 (no change). Council also raised the idea of indemnification of lawsuits if challenged. MOTION: To adopt the resolution accepting the findings of the 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: Councilmember Berger, Fredericks, Thompson, Vice Mayor Slavitz, Mayor Gram Moved: Vote: ADJOURNMENT r"' There being no further business before the Town Council of the Town of Tiburon, Mayor Gram adjourned the meeting at I :22 a.m. on Thursday, August 1,2002, to closed session. Town Council Minutes # 17- 2002 July 31,2002 Page 20 s r" r ,-.., CLOSED SESSION Conference with Legal Counsel- Anticipated Litigation (Section 54956.9(c)) Initiation of Litigation (One Case) ANNOUNCEMENT OF ACTION TAKEN IN CLOSED SESSION. IF ANY ADJOURNMENT After announcing the no action had been tak the Tiburon Town Council at 1 :45 a.m., sin die. ATTETJiLr t . . ~ DIANE CRANE IACOPI, TOWN CLERK Town Council Minutes # 17- 2002 Gram adjourned the special meeting of July 31. 2002 Page 21 -- I