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HomeMy WebLinkAboutCC Minutes 2003-05-05SRCC Minutes (Regular) 05/05/2003 Pagel IN THE COUNCIL CHAMBER OF THE CITY OF SAN RAFAEL, MONDAY, MAY 5, 2003 AT 8:00 P.M. Regular Meeting: San Rafael City Council Also Present: Rod Gould, City Manager Gary T. Ragghianti, City Attorney Jeanne M. Leoncini, City Clerk CLOSED SESSION — CONFERENCE ROOM 201: None ORAL COMMUNICATIONS OF AN URGENCY NATURE: Present: Albert J. Boro, Mayor Paul M. Cohen, Councilmember Barbara Heller, Councilmember Cyr N. Miller, Councilmember Absent: Gary O. Phillips, Vice -Mayor 8:00 PM a) Community Marin: - File 264 Katherine Cuneo, resident of an unincorporated area of San Rafael for 40 years, presented copies of "Community Marin" to the City Council, explaining it was prepared over the last two years by four of Marin's leading environmental organizations: Marin Conservation League, Environmental Forum of Marin, Marin Audubon Society and Sierra Club, Marin Group. She indicated she was a member of all of these organizations and had been a Board Member, past and present, of three. Ms. Cuneo explained that the report presents their joint recommendations on a wide range of issues for County and City General Plans and is a "How To" guide to achieve a sustainable future through environmentally sound land use planning. Reporting that "Community Marin" contains 165 recommendations, Ms. Cuneo stated that a few of the key recommendations for San Rafael include: Environmental Quality: • Establish a Baylands protection corridor and codify additional protections for streams and associated riparian habitats; • Watershed based land use planning; • Strengthen stream and creek protection, to encompass all streams, including those that have been channelized or otherwise altered by human intervention; and • Protect 50 — 100 -foot buffers along stream banks even where no riparian vegetation exists. Parks and Open Space: • Increase funding for San Rafael's Open Space District and reduce or eliminate uses on open space lands that would have adverse impacts or be incompatible with natural resources; • Enhance and restore degraded habitat; • Join other agencies in cooperative efforts at education, management and signage on open space lands. Housing: • Establish and enforce limits on house size and require developers of commercial properties to provide or fully fund an appropriate amount of below market rate housing within the county; • Encourage infill and mixed use of spaces above parking lots, shopping centers and other commercial centers; • Reuse existing buildings for housing; Economic Vitality: • Reduce the amount of new commercial development authorized in the General Plan; • Expand green business certification programs • Retain businesses that supply the needs of Marin residents, but prohibit further big box retail; Transportation: • Integrate land use patterns with transportation facilities; Manage growth so as not to further burden transportation facilities' limited capacity and promote more efficient use of the existing transportation infrastructure. Thanking the City Council for their time, Ms. Cuneo stated that additional copies of "Community Marin" are available at the Marin Conservation League offices on Fifth Avenue, San Rafael, or it could be downloaded from the Marin Sierra Club's website. SRCC Minutes (Regular) 05/05/2003 Page 1 SRCC Minutes (Regular) 05/05/2003 Page 2 Roger Roberts reported that the General Plan Steering Committee and Planning staff had been provided with copies of the "Community Marin" statement. He indicated that the statement represents a smart growth model for Marin, especially with respect to the City Centered Eastern Corridor. In addition to Ms. Cuneo's remarks, Mr. Roberts identified (page 38), five specific recommendations on areas of potential change within the City of San Rafael: • North San Rafael: The proposal is not to pursue construction of the McInnis Parkway or other expensive engineering solutions to transportation problems, which clearly would have an adverse effect on environmental resources in existing neighborhoods. The Community Marin group believes there is no satisfactory engineering solution to the congestion problems of this area, and the Northgate Shopping and adjacent area appear appropriate for residential infill and reuse; however, the intent is not to deteriorate the area traffic wise. • Marin Ranch Airport: This property should either continue in its present use or be restored to wetland habitat and it is requested that the City not remove the existing deed restriction in order to allow development of that property. Downtown - There appear to be further excellent opportunities for mixed use and infill development, particularly residential, to enhance the character of the downtown and promote its vitality, and this seemed appropriate because it is well served by transit and other essential services. • Canalways Area: The current General Plan designation for development of 150,000 square feet of office space and 250 housing units on the 85 -acre dyked historic marsh is felt to be inappropriate and should be eliminated in view of the area's importance as a seasonal wetland and an endangered species habitat. • City of San Rafael and Canal Area: Within the City of San Rafael and Canal area, the remaining undeveloped land should be designated for relatively lower traffic and job intensity, light/industrial and service uses, rather than office and retail. New development should take into consideration the severe traffic constraints of that area. Mr. Roberts stated they welcomed any questions of the organizations that generated the document and hoped it would be useful. b) Proposed Crematorium — Keaton's Mortuary: - File 13-1 x 10-2 Brad Sears inquired whether the City Council would be available at the Community Meeting regarding the proposed crematorium, to be held on Wednesday, May 7, 2003. Mayor Boro explained that Councilmembers could choose to attend; however, the City Council was not holding a meeting that evening. He confirmed the Community Meeting was being conducted by the Bay Area Air Quality Management District and was an information session to take testimony and discuss their process. Mayor Boro further confirmed that Community Development Director Bob Brown would be in attendance. With regard to Mr. Sears' question pertaining to Council action on this matter, Mayor Boro explained there was nothing at this point for Council to vote on. He stated that Mr. Sears was present at the last meeting when the City Attorney explained the process the City went through; however, to Mayor Boro's knowledge, there was nothing coming before Council at this time. As Mr. Sears again questioned whether Council would vote this up or down, Mayor Boro reiterated that the matter had not come before Council in the process used, nor was it appealed. City Attorney Ragghianti explained that Assistant City Attorney Guinan had indicated that the Administrative Permit which was issued was not appealed and the time for appeal had passed. In addition, the time had also passed to challenge the environmental document adopted by the City; therefore, there was nothing for this Council to act on. Mr. Ragghianti confirmed that the Use Permit had issued and was final. The time to seek to set it aside, void or annul it had also passed. Responding to Mr. Sears' question that should it pass the Bay Area Air Quality Management District's (BAAQMD) standards it would go through, Mr. Brown confirmed that the Use Permit was made subject to receipt of the BAAQMD permit, which was the last outstanding condition. As indicated at the last meeting, he stated that the only opportunity for the City Council to participate would be if the use begins operation and is identified to have public impacts in terms of nuisance. Should this occur, relocation procedures would be initiated, commencing with the Planning Commission, which could be appealed to the City Council. SRCC Minutes (Regular) 05/05/2003 Page 2 SRCC Minutes (Regular) 05/05/2003 Page 3 Mr. Sears inquired whether BAAQMD had ever rejected an application. Responding, Mr. Brown stated this question could be posed at the Community Meeting on Wednesday, May 7, 2003. Mr. Sears quoted from an article in the "Funeral Monitor" dated May 5, 2003: "With permission to operate as many as 16 hours a day, 365 days a year, protesters take little comfort in the crematory's official cap of 1666 annual incinerations. A Council decision on the already granted air quality permit is expected early next month, but like most politicians .... tending to avoid responsibility for their votes, it is possible that the City Council might try to wash its hands of the whole matter by kicking it upstairs and suggesting State officials hold a public hearing." Mr. Sears stated he believed this was happening here and his group did not intend to be railroaded on the issue. He suggested evaluating legal options, which he had provided in packets to the City Council, indicating this would be a good and honorable way out. He did not believe this to be a humane or appropriate use of the cultural accord and personally, would prefer an "In n' out Burger." He believed it was incumbent on the City Council, as the City of San Rafael's leaders, to vote the issue up or down. Mayor Boro indicated it was his understanding that being within the 300 -feet radius, Mr. Sears did receive a notice; however, for whatever reason, chose not to attend the hearings, nor lodge a protest. Had it come to Council in that process, he stated that perhaps it could have been voted on up or down; however, unless there was a legal way it could be brought before Council, it would not be taken up. Mayor Boro stated that in the event Mr. Sears or the City Attorney found a legal way the City Council would be more than willing to entertain it. Councilmember Miller moved and Councilmember Heller seconded, to approve the following Consent Calendar items: ITEM Approval of Minutes of Regular Meeting of Monday, April 7, 2003 and Special and Regular Meetings of Monday, April 21, 2003 (CC) 2. Designation of Councilmember Barbara Heller as Voting Delegate for League of California Cities Special Meeting on Thursday, May 15, 2003 at the Sacramento Community Center Theatre (CC) — File 9-11-1 x 9-1 3. Call for Applications for Appointment to Fill One Four-year Term on the Design Review Board, Due to Expiration of Term of Brent Dickens — Term to Expire End of June, 2007 (CC) — File 9-2-39 4. Call for Applications for Appointments to Fill Two Four-year Terms on the San Rafael Planning Commission, Due to Expiration of Terms of James Atchison and Jeff Kirchmann — Terms to Expire End of June, 2007 (CC) — File 9-2-6 RECOMMENDED ACTION Minutes approved as submitted. Approved Councilmember Heller as voting delegate for the League of California Cities Special Meeting scheduled for Thursday, May 15, 2003, at the Sacramento Community Center Theatre. Aaaroved staff recommendation: a) Called for applications for appointment to fill one, four year term on the Design Review Board with term to expire end of June, 2007; b) Set deadline for receipt of applications for Tuesday, May 27, 2003, at 12 Noon in the City Clerk's Office, Room 209; and c) Set date for interviews of applicants at a Special City Council meeting to be held on Monday, June 2, 2003, commencing at 6:00 p.m. Aaaroved staff recommendation: a) Called for applications to fill two, four-year terms on the Planning Commission, with terms to expire end of June, 2007; b) Set deadline for receipt of applications for Tuesday, May 27, 2003 at 12:00 Noon in the City Clerk's Office, Room 209, City Hall; and c) Set date for interviews of applicants at a Special City Council meeting to be held on SRCC Minutes (Regular) 05/05/2003 Page 3 SRCC Minutes (Regular) 05/05/2003 Page 4 Monday, June 2, 2003, commencing at 6:00 p.m. 5. SECOND READING AND FINAL ADOPTION OF Approved final adoption of ORDINANCE NO. 1801 — An Ordinance of the Ordinance No. 1801. City of San Rafael Rezoning Certain Real Property from Planned Development (PD) District to a Revised PD District (ZCO2-04) to Allow the Construction of 14 Two -Bedroom Apartments on a Vacant 0.92 -Acre Site Located at the End of North Avenue (McInnis Park Apartments IIB) and Incorporating the Previously Approved PD District Zoning for McInnis Park Apartments I and II Into the New PD District (APNs: 155 -370 - Parcel B, 155-370-07 and 08, and 155-251-54) (CD) — File 5-1-290 x 10-3 x 10-7 6. Summary of Legislation Affecting San Rafael Accepted report and approved staff (CM) —File 116 x 9-1 recommendation: AB 1160 Housing. Second Units — Assembly Member Steinberg - OPPOSE AB 218 Local Planning. Housing Elements — Assembly Member Simitian — SUPPORT 7. Approval of Proposal to Recruit a Fire Chief for RESOLUTION NO. 11300 — the City of San Rafael (CM) — RESOLUTION APPROVING THE File 4-3-422 x 9-3-31 PROPOSAL AND AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACT WITH HUGHES, PERRY & ASSOCIATES FOR CONSULTING SERVICES CONCERNING THE RECRUITMENT OF A FIRE CHIEF FOR THE CITY OF SAN RAFAEL 8. Resolution of Appreciation Accepting the RESOLUTION NO. 11301 — Recommendation of the San Rafael Park and RESOLUTION OF APPRECIATION TO Recreation Commission to Rename Shoreline JEAN STARKWEATHER AND Park to "The Jean and John Starkweather RENAMING SHORELINE PARK TO Shoreline Park" (CS) — "THE JEAN AND JOHN File 12-5 x 102 x 9-3-66 x 9-2-4 STARKWEATHER SHORELINE PARK" 9. Monthly Investment Report for Month Ending Accepted Monthly Investment Report March, 2003 (MS) — File 8-18 x 8-9 for month ending March, 2003, as presented. 10. Resolution Approving Final Map of Redwood RESOLUTION NO. 11302 - Village, APNs 179-131-01 and 179-142-30 (PW) RESOLUTION APPROVING THE —File 5-1-347 SUBDIVISION IMPROVEMENT AGREEMENT AND FINAL MAP OF THE SUBDIVISION ENTITLED "MAP OF REDWOOD VILLAGE" 11. Resolution Authorizing the Signing of a Below RESOLUTION NO. 11303 — Market Rate Housing Agreement With Chapel RESOLUTION APPROVING A BELOW Cove Partners, LLC (RA) — MARKET RATE HOUSING File 229 x 5-1-342 x 13-16 AGREEMENT AMONG CHAPEL COVE PARTNERS, LLC, THE HOUSING AUTHORITY OF THE COUNTY OF MARIN AND THE CITY OF SAN RAFAEL IN CONNECTION WITH THE CHAPEL COVE DEVELOPMENT AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE SAID AGREEMENT SRCC Minutes (Regular) 05/05/2003 Page 4 12. Resolution Authorizing the Signing of a Below Market Rate Rental Housing Agreement Between McInnis Housing Partners and the City of San Rafael Re: McInnis IIB Apartments (RA) — File 229 x 5-1-290 SRCC Minutes (Regular) 05/05/2003 Page 5 RESOLUTION NO. 11304 — RESOLUTION AUTHORIZING THE SIGNING OF A BELOW MARKET RATE RENTAL HOUSING AGREEMENT BETWEEN MCINNIS HOUSING PARTNERS AND THE CITY OF SAN RAFAEL RE: MCINNIS IIB APARTMENTS AYES: COUNCILMEMBERS: Cohen, Heller, Miller and Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: Phillips ABSTAINING: COUNCILMEMBERS: Cohen (from minutes of 4/7/03 only, due to absence from meeting.) SPECIAL PRESENTATION: 13. SPECIAL PRESENTATION OF RESOLUTION OF APPRECIATION RENAMING SHORELINE PARK TO "THE JEAN AND JOHN STARKWEATHER SHORELINE PARK" — FILE 102 x 12-5 x 9-3-66 x 9-2-4 Mayor Boro invited Mrs. Jean Starkweather and her son Stephen, Community Services Director Carlene McCart and members of the Park and Recreation Commission to join him and Councilmembers Cohen, Heller and Miller at the podium. Stating this was a proud night, Mayor Boro indicated that all knew Jean well and had the privilege and pleasure of working with her late husband, John, who was missed very much. In addition to the Resolution of Appreciation this evening, he indicated it was also planned to erect a plaque this summer, bearing Jean and John's names, officially dedicating the path. Mayor Boro stated this was a Resolution of Appreciation to Jean Starkweather renaming Shoreline Park to "The Jean and John Starkweather Shoreline Park." He quoted: "The City Council of San Rafael resolves as follows: "WHEREAS , most San Rafael City parks are named for neighborhoods which they serve — Gerstle, Sun Valley, Terra Linda, Peacock, Santa Margarita; some for location — Beach, Shoreline; others are named for the benefactors that gifted the land for public use — Albert, Freitas, Boyd, and some recognize those who contributed to certain parks - Barbier, Victor Jones, Schoen, Munson; and WHEREAS, there is one park in the San Rafael system that is the recipient of extraordinary commitment to preservation and improvement on behalf of two, 50 - year residents, Jean and John Starkweather; and WHEREAS, the Starkweathers were instrumental in every phase of preservation of the San Rafael shoreline, from campaigning to save the land, to forging a development plan that moves in feasible increments, to spearheading fundraising and partnerships for the development of each public segment of Shoreline Park; and WHEREAS, the Starkweathers for many years have led hikers to the water's edge, organized volunteers in clean up projects, and been catalysts for volunteer bird and wildlife counts; and WHEREAS, from restoring natural wildlife habitat to installing landscape, bike trails and benches, the energy and dedication of Jean and John Starkweather have provided San Rafael with a bay front park of major Bay Area significance; and WHEREAS, by unanimous vote, the San Rafael Park and Recreation Commission recommends to the City Council that the heretofore named Shoreline Park be renamed the "Jean and John Starkweather Shoreline Park" to commemorate Jean and John's invaluable foresight, diligence and untiring efforts as the guardian angels of parks, wildlife habitat and open space in and around the City of San Rafael, in facilitating the creation, development, maintenance and preservation of such invaluable lands in perpetuity for the enjoyment of present and future generations of residents of the City of San Rafael and of the County of Marin. SRCC Minutes (Regular) 05/05/2003 Page 5 SRCC Minutes (Regular) 05/05/2003 Page 6 NOW THEREFORE BE IT RESOLVED THAT THIS COUNCIL APPRECIATES THE CONTRIBUTIONS OF JEAN AND JOHN STARKWEATHER AND ACCEPTS THE RECOMMENDATION OF THE PARK AND RECREATION COMMISSION TO RENAME SHORELINE PARK "THE JEAN AND JOHN STARKWEATHER SHORELINE PARK." Jean Starkweather thanked the City Council, Park and Recreation Commission members, and staff and stated that everyone had a part in the park, as whatever the project, it takes a lot of help. Ms. Starkweather reported that she discovered this shoreline when she was on the Citizens Advisory Committee for the General Plan in 1972 when as part of that group, it was decided to investigate every corner of San Rafael. She noted there were no houses there at that time, rather streets and street trees from a failed housing development. There was a long levee with a trail down the middle full of fennel, with more filling the farther south one got. She recalled ponds on both sides of the now Highway 580 towards the Bridge, and lots of egrets in the spring. As these ponds and wetlands were going, Ms. Starkweather stated she began collecting bird lists from those who had looked at birds out there, and they initiated efforts to preserve the land. A former plan contained a freeway along the levee, which would have wiped out not only the San Rafael Shoreline Park to be, but also China Camp State Park. At the time, Ms. Starkweather found that the plans were to build out to the high tide land; therefore, this was a treasure which should be worked on to save for people to appreciate. Comparing an 1897 map with a present one, she reported that the San Rafael Basin had been filled in over the years. She recalled when they moved to San Rafael there was a line of businesses along East Francisco down to Bellam almost, and everything beyond was marsh. Gradually it had been filled in, which changed the Basin for flood control, water recharge and wildlife. She reported having had a drawing done and measured, indicating that over 1,100 acres of marsh had been lost south of the San Rafael canal in the last hundred years. Ms. Starkweather stated her theory as to why there is so much wildlife richness in the remaining ponds and wetlands is that they used to live in this whole basin and have been squeezed out to the Bay and all they have left are the ponds along the shoreline. People are now able to walk the shoreline and pieces of the new trail and observe what remains of these ponds. Ms. Starkweather stated that as all were aware, there are a few places remaining to preserve and they are really important for wildlife because different species have different requirements. She explained that some need very shallow water, some need deep water, some fresh water, some salt water, some can tolerate in between water, and these are available, which is another reason for the richness of wildlife along the shoreline. When the Water Management Plan was being done for the lagoon and Spinnaker wetland, Ms. Starkweather stated they volunteered to do the bird census part of it, whereas the biologist did the water quality and hunts for the elusive mouse. Regular monitoring was commenced and for the past twelve years, a monthly bird census of the ponds and wetlands has been carried out along the shoreline, and as improvements have been done to restore these marshes, new birds have appeared, others have returned and it is wonderful to see the richness. Ms. Starkweather stated they are attempting to preserve the diversity and make the shoreline better and nicer for people. She reported it is approximately two and a half miles and invited anyone who has not walked it to do so. Ms. Starkweather stated she appreciated the award, reporting that her husband John, was with her all the way as they worked on trying to figure out how to preserve the shoreline, and it was wonderful to have both their names on it. Park and Recreation Commissioner Armando Quintero stated he intended to read the letter the Commission sent to Mayor Boro and Councilmembers; however, much of that letter was incorporated in the resolution and they were joyous this was able to happen, adding they all had tremendous respect for the work Jean had done. Mayor Boro stated the City Council meeting would pause for approximately ten minutes to enjoy cake and coffee in the lobby in celebration. Mayor Boro resumed the City Council meeting. SRCC Minutes (Regular) 05/05/2003 Page 6 SRCC Minutes (Regular) 05/05/2003 Page 7 PUBLIC HEARING: 14. Public Hearing — RE 250 PT. SAN PEDRO ROAD (MARIN BEACH AND TENNIS CLUB); CONSIDERATION OF RESOLUTION DENYING AN APPEAL OF THE PLANNING COMMISSION'S DECISION TO DENY AN APPEAL AND UPHOLD THE ZONING ADMINISTRATOR'S DECISION TO APPROVE AN ENVIRONMENTAL AND DESIGN REVIEW PERMIT AND USE PERMIT FOR THE INSTALLATION OF A NEW WIRELESS COMMUNICATION FACILITY ENCLOSED INSIDE A NEW MOCK CHIMNEY ON THE ROOF OF AN EXISTING BUILDING AND THE INSTALLATION OF ASSOCIATED EQUIPMENT WITHIN A FENCED AREA ON THE SIDE OF THE EXISTING BUILDING; APN: 009-031-09; MARINE COMMERCIAL — CANAL OVERLAY (MC -C) DISTRICT; IVALDO LENCI, ET AL., APPELLANT; MARIN YACHT CLUB, OWNER; CHAD ABBOTT, WIRELESS FACILITIES, INC. REPRESENTING CINGULAR WIRELESS, APPLICANT. FILE NOS.: ED02-089 AND UP02-065 (CD) — FILE 10-5 x 10-7 x 10-2 Mayor Boro declared the public hearing opened, and for the record, stated he would recuse himself from this item as he owned stock in Cingular Wireless and would have a potential conflict of interest. He indicated that Councilmember Cohen would preside over the meeting from this point, and Mayor Boro left the Council Chamber. Associate Planner Raffi Boloyan stated this was a new wireless communication facility, consisting of three panel antennas, located in a new stealth chimney on top of the Marin Beach and Tennis Club building off Point San Pedro Road. He indicated that following a review and recommendation for approval by the Design Review Board, this project was approved by the Zoning Administrator in November, 2002. That decision was appealed to the Planning Commission and on a 5:0 vote with two members absent, the Planning Commission denied the appeal and upheld the Zoning Administrator's decision to approve the project. Mr. Boloyan stated that the staff report presented all the appeal points prepared by the appellant, including a detailed response to each. Explaining that the main focus of the appeal is concern with the environmental and health effects associated with RF (Radio Frequency) exposure, Mr. Boloyan stated he would provide a brief update of the City's role in reviewing these applications and the City's discretion in these types of applications. Mr. Boloyan reported that in 1996, the Federal Government established the Federal Telecommunications Act, which established and tested maximum RF exposure limits. The limits were designed to protect the public's health and safety with a maximum amount of safety and were reviewed and endorsed by numerous federal agencies, and in recent years, there had been case law upholding the Federal Telecommunications Act. He indicated the applicable section of the Act states that: "The Federal Telecommunications Act preserves the local agency's authority to regulate the siting and construction of personal wireless communication facilities, subject to certain limitations." Mr. Boloyan stated that one specific limitation prohibits a local agency from regulating the placement or construction of a personal wireless communications facility on the basis of environmental effects associated with RF emissions if those emissions are within the applicable limits. He indicated that therefore, the City's role in this is to ensure compliance with the FCC (Federal Communications Commission) limits for exposure. Mr. Boloyan noted that for these types of applications the City requires an RF study to be prepared and submitted by a licensed engineer to document the exposure. He reported that an RF study was prepared for this project by a licensed engineer, which identified that the fuel strength both inside and around the subject site would be within 2% of the allowable maximum public exposure limit. Based on this, Mr. Boloyan stated the City is preempted from denying a permit based solely on the environmental effects. Prior to the Zoning Administrator hearing, Mr. Boloyan stated there was some concern about the RF exposure further down the street and at different sites around this property; therefore, the applicant actually conducted fourteen additional readings up and down Summit, and as low as Point San Pedro Road, to document the RF exposure at those areas from a proposed possible installation at 250 Point San Pedro Road. He indicated that the result confirmed the exposure would still be well below the 2% applicable public exposure limit. Mr. Boloyan reported that as a condition of approval, the Zoning Administrator also included a condition requiring that 20 days after the antenna is installed, a further test be conducted to SRCC Minutes (Regular) 05/05/2003 Page 7 SRCC Minutes (Regular) 05/05/2003 Page 8 verify the "as built" exposure and how it compared to that predicted through the studies Mr. Boloyan stated the appellant, together with the project applicant and project engineer were present and could answer questions. Councilmember Miller thanked Mr. Boloyan for his report and stated it compared very much with the instructions given when considering the MERA (Marin Emergency Radio Authority) antenna. Councilmember Heller noted there had been some court cases that upheld the federal standards and these were well set in law since 1996. Acting Mayor Cohen explained to Mr. Ivaldo Lenci that being an appellant, he would be afforded the opportunity of speaking first. While normally speakers are given approximately five minutes, he informed Mr. Lenci he would be permitted ten to fifteen minutes. Acting Mayor Cohen stated the City Council had read all Mr. Lenci's materials, including his appeal, the minutes of the Planning Commission meeting, appeal, testimony and supporting materials supplied. In addition, he noted several other people listed on the appeal and inquired whether any of these people intended to speak. Mr. Lenci stated he assumed they wished to speak; however, he requested they donate their time to him. Acting Mayor Cohen indicated the rules did not work that way and should those people wish to speak, he would not count their time within the ten to fifteen minutes allotted to Mr. Lenci. Acting Mayor Cohen specified that Mr. Lenci should use his time to provide information to the City Council on the appeal and not on other issues. Should Mr. Lenci have questions for staff, they should be asked and staff would be requested to respond at the end of the presentation. Mr. Lenci indicated his question was part of the appeal, explaining he requested information from staff on the court cases, as the only lawsuit he was aware of was where an injunction was placed to stop the antenna; however, this information was not provided. Mr. Lenci also questioned why no copies of his appeal were placed in the lobby. Acting Mayor Cohen stated it was the City's practice to place copies of the staff report in the lobby. The City Clerk then made these available. Mr. Lenci reported that his family came to the San Francisco area in 1875 and he presented pictures of their store in San Francisco in 1904 to Councilmembers. He indicated that when he came to this country in 1963 he purchased the land where he built his present home. Mr. Lenci played an excerpt of a tape featuring John Bernt. Mr. Lenci indicated he would show where the expert for Cingular Wireless indicates he is not an expert. Objecting to the use of the words "would be" in the resolution, indicating this should read "shall be," meaning mandatory, Mr. Lenci stated that in his opinion, to sign the resolution in its present form was breaking the law. He indicated he would uphold the law to its fullest extent through the legal system. Acting Mayor Cohen stated that normally when providing testimony at a public hearing, speakers are requested to identify themselves for the record. As Mr. Lenci was now playing a second tape featuring a recording of an unidentified voice, he requested Mr. Lenci identify the speaker on the first tape. Mr. Lenci identified the speaker as John Bernt. Mr. Lenci indicated he intended to play extracts from a further tape of the Planning Commission hearing appealing this item. Acting Mayor Cohen stated the minutes of this meeting were available; however, Mr. Lenci indicated the minutes did not reflect what was actually stated. In the interim, Mr. Lenci referred to a letter sent to the City from neighbor Don Frier, indicating his belief that the antenna would not cause any problems. On Mr. Lenci's comment that Mr. Frier had put rocks in front of his house, Acting Mayor Cohen stated Mr. Lenci was approaching being out of order. He explained this was a publicly noticed hearing to hear Mr. Lenci's appeal of the Planning Commission's denial of his appeal of the Zoning Administrator's approval of the installation of a wireless antenna and had nothing to do with placement of rip rap, neither was it a court where Mr. Lenci had to make his case by imputing the testimony of other witnesses. The issue concerning rock was not on this evening's agenda and was not in order. SRCC Minutes (Regular) 05/05/2003 Page 8 SRCC Minutes (Regular) 05/05/2003 Page 9 In writing the letter Mr. Lenci stated Mr. Frier had opened the legal door and he needed to dispute Mr. Frier's credibility. Acting Mayor Cohen reiterated that this was not a court of law and issues not on tonight's agenda would not be heard. Indicating he would count this against Mr. Lenci's time, Acting Mayor Cohen stated that should Mr. Lenci wish to use his time on something not pertaining to the appeal, he would, however, keep him to the allotted fifteen minutes. In the event someone stated something that involved his living, Mr. Lenci stated he should have the right to defend himself. He noted one of the appellants was not present this evening, as his wife had breast cancer. Mr. Lenci played extracts from a tape of the Planning Commission hearing, featuring Associate Planner Raffi Boloyan who used the name Doctor Donald Frier. Commenting on the term Doctor, Mr. Lenci indicated Mr. Frier was a dentist, which was misleading. He inquired whether Acting Mayor Cohen was denying him his constitutional right to proceed legally. Acting Mayor Cohen explained that Mr. Lenci had gone considerably over the allotted fifteen minutes and indicating he would permit a couple of minutes to wrap it up, he advised Mr. Lenci to confine his remarks to the issues upon which he appealed this decision. Mr. Lenci stated it appeared, therefore, the issue would go to Federal Court. Regarding the Letter of Authorization, Mr. Lenci indicated he had been unable to verify whether Gary Bennett had signed it. Playing a further extract from a tape, Mr. Lenci identified the speaker as the person who indicated he was not an expert; however, was the person who gave the expert testimony. He stated it was simple to have an environmental expert testify to ensure neighbors had peace of mind. Mr. Lenci stated the antennas would be placed in a flood area and the batteries would be by the water on the ground. Acting Mayor Cohen stated these points had been raised in Mr. Lenci's appeal letter and he had noted some points. As he had given Mr. Lenci considerable benefit of the doubt in terms of the allotted fifteen minutes, he indicated he would give him one more minute to conclude. On the question of whether Mr. Lenci should have time for a rebuttal, Acting Mayor Cohen stated he was informed at the outset he would be allowed fifteen minutes to make his case; however, Mr. Lenci had chosen to play tapes, using some of this time; therefore, he reiterated he would permit him a further one minute to conclude his presentation. Mr. Lenci stated that Section 15300.2 specifically states that exemptions cannot be given when hazardous material is involved. In the installation of three antennas, batteries, etc., he indicated this did not count. Ken Royal reported having recently relocated to the area from Mill Valley with his wife and four month old son and believed he owed it to his son to speak up on their behalf. He stated he did not really understand the proceedings; however, hoped it would give neighbors an opportunity to prevent the installation of the antenna in the proposed area. Mr. Royal indicated he had a handout from Diamond Service, the company who conducted the survey, and referred to an equation which he did not understand. He noted his neighbor (Mr. Lenci) attempting to present the situation, very emotionally and upset, which was difficult to do against a professional presenting very eloquently under City guidelines. Regarding the statement of less than 2% radio frequency emissions, Mr. Royal stated he was present this evening to see whether he could be convinced that the proposed installation across from his property at 105 Summit would help to promote the value of his property. From his understanding, however, he believed there would be no value increase to his property, rather there would be a decline in value, which was of concern to him. Mr. Royal stated he deemed any exposure negative. Regarding the very respectable Marin Yacht Club and having grown up in boating, Mr. Royal hoped they would pursue being a good neighbor and understand their neighbors' viewpoints. He stated this was big business versus neighbors and he suggested Councilmembers look across their streets, imagine a radio antenna and wonder whether it was doing any harm, or causing any cancers or ailments. He indicated that even with 2% or less, it was still exposure and was of concern regarding health and value of the property they had worked to procure. Mr. Royal indicated he wished it to be known he was very much against the proposal, along with the other neighbors listed, and believed there was a better way to do this. SRCC Minutes (Regular) 05/05/2003 Page 9 SRCC Minutes (Regular) 05/05/2003 Page 10 Tim Holmes stated he was a neighbor of Mr. Lenci and Mr. Royal and reflected a similar perspective to Mr. Royal in that he had a young family. Having reviewed all the documentation he stated there were some issues he did not understand and would feel more comfortable knowing these points were taken into consideration. Firstly, Mr. Holmes stated that the FCC in their guidelines pointed out that these base stations are normally 50 — 200 feet above ground; the chimney location is not nearly that high. Also, when in close proximity, workers were required to be trained in RF frequency procedures to minimize their exposure. He reported having been in the United States Navy, working amongst antennas and monitoring radiation as it was dangerous to the person. Mr. Holmes noted there are large power lines going over that area, and other antennas close by. He reported also a large amount of radar attributed to the sail boats and yachts, all of which cumulatively worried him. He questioned whether the study was carried out in a scientific manner. While he believed the readings were taken accurately at that time, and not having reviewed them he could not account for them; however, he hoped they were conducted in a scientific manner and the studies would be made available to make that assertion. Lastly, Mr. Holmes stated the location appeared unusual in that it was very close to the residential area where a lot of these are normally placed on power lines. He commented that his wife refused to buy a home underneath such power lines. He was concerned for the safety of young children who were more receptive as they were growing and whose bodies were more likely to be harmed by such things. Indicating he was not aware of the situation until recently, Mr. Holmes stated he was glad Mr. Lenci brought it to his attention. He hoped there was something he could look to to understand and ensure he was comfortable this was the correct decision. Doctor Frier, 5 Marina Way, referred to the letter he had written and believed Mr. Lenci had taken it out of context in that he is licensed through the FCC (Federal Communications Commission) as an amateur radio operator and also possesses a State of California radiation license. Doctor Frier stated he lives with radiation concerns daily and had no problem with this particular non -ionizing radiation, indicating he lived across the canal from Mr. Lenci and is just as close. Chad Abbot, representing Cingular Wireless, stated Mr. Boloyan had done a sufficient job in describing the project and both he and Mr. Matt Runte, Project Engineer, were available to answer questions. John Somer, 41 Summit Avenue, stated he had no objection to the antenna. Gayle Lenci, 15 Summit Avenue, stated she had a great objection to the antenna. She believed it would be dangerous to children, the radiation would come towards her head as it comes into her kitchen window. Ms. Lenci stated she lives closer to the antenna than others and would appreciate if life were taken into consideration. She indicated there is a co -mingling of business with money ventures and life, and hoped life would be put first. Jeff Woodhead, Montecito Road resident, inquired of the Cingular representative as to how many cellular relays they had installed on a yacht club previously. He explained that those within a quarter mile radius of the proposed station had not had a lot of notification and they would appreciate hearing in "layman's language" the cumulative effects and impact on residents of this type of station. Mr. Woodhead stated he understood that Councilmembers had no legal proceeding to contest this; however, residents were looking to them to take care of them. There being no further comment from the audience, Acting Mayor Cohen closed the public hearing. Councilmember Heller noted that one of the statements made was to the effect that people could touch the antennas. Mr. Abbot, Cingular representative, responded in the negative. He explained that the antennas would be attached to the western wing of the building, within a faux chimney on the backside, and only operations people would have access. Acting Mayor Cohen inquired whether staff heard anything in this evening's testimony they wished to respond to. Community Development Director Bob Brown stated that obviously, there was a great deal of interest in the topic and the City has been through these applications previously. In reality, he stated there were quite a number of cellular antennas that are in the residential/commercial interface and as was pointed out, this was the intent of the U.S. Congress in passing the Telecommunications Act. He explained they wanted to facilitate the creation of wireless SRCC Minutes (Regular) 05/05/2003 Page 10 SRCC Minutes (Regular) 05/05/2003 Page 11 communication networks, which is why they established standards. In fact, their standards are very conservative, they come from the scientific community and that is why they specifically precluded local government from adopting their own standards or from denying these applications based upon strictly health concerns. Mr. Brown stated the U.S. Congress is intending to promote this technology and is taking these decisions out of the local arena. In terms of the science, Mr. Brown stated the speaker familiar with navy installations said it best, i.e., the further one is away from the antenna, the amount of electromagnetic radiation drops off radically and is an exponential decrease, which is why there is more concern about workers who are immediately in front of these antennas than five, ten or fifteen feet away, when the curve of the energy drops off very significantly. He explained this is why even with very conservative federal standards, it was found that in getting beyond typically the property plane where the antenna is to be located, one is getting into 1 or 2% of the federal standards. He indicated that is a cumulative analysis and not merely this antenna. As an example, Mr. Brown stated that to take readings in the Council Chamber, it would be found everyone was being subjected to electromagnetic frequencies, i.e., broadcast radio, television, wireless devices, and as staff had learned, the use of a cellphone next to the head is a much more concentrated source of power than could be received from an offsite antenna. Mr. Brown stated the Federal Government had essentially taken this authority away from local government to promote this technology. Acting Mayor Cohen invited comment from the gentleman who conducted the testing. For the record he stated an excerpt of something was played which he gathered to be a tape of Mr. Runte stating he was not an expert in environmental effects, and for clarification, he inquired whether Mr. Runte considered himself an expert in measuring the frequency generated by cellular radio antennas and other like-minded devices. Matt Runte stated he considered himself an expert in measuring, performing calculations and providing reports. He did not consider himself a health expert. Acting Mayor Cohen stated there had been several questions about the issue of the cumulative impact of location of the high tension wires, other antennas installed in the immediate area or on the yacht club, combined with the potential for radar emissions, and then this additional antenna. He indicated it appeared to him in reading the report that Mr. Runte attempted to measure those impacts, and requested verification. Responding, Mr. Runte reported he was requested to go around the neighborhood and measure the existing levels, and assuming the sites were approved, he would return and measure the change. He reported having done something similar in Mill Valley last week and noticed no difference at the houses which were only a couple of hundred feet from the site. Acting Mayor Cohen requested confirmation that the cumulative impact would be 2% of the federal standards. Mr. Runte stated the calculation in the report is from the FCC website and that doubles the predicted level. Typically, he stated that on going out to measure afterwards, he finds it changes by approximately .1 % or .2%, and the further away from the antennas, drops off very rapidly. He indicated that the general public could be directly in front of one of these antennas at a distance of fifteen feet and not exceed the level, and this is borne out when he goes out to measure sites. Mr. Runte stated the actual distance from the antenna for the general public is a few feet. Acting Mayor Cohen noted a couple of comments in the appeal concerning the status of the permit and some confusion regarding the owner of the property, and he requested some clarification from staff. Raffi Boloyan, Associate Planner, explained that when the application was originally received, the applicant, Cingular Wireless, had identified the property owner as Marin Beach and Tennis Club, which is the actual tenant of the property and this information was written on the City's general application form. Mr. Boloyan reported that during the completeness review, this error was detected and the applicant was requested to provide a Letter of Authorization from Marin Yacht Club, the property owner. Since these are property based permits, it was necessary for the property owner to acknowledge that Cingular was applying on their behalf. Mr. Boloyan reported that the Letter of Authorization was received; however, the general application form was never corrected. Pursuant to the approval, in mailing the letter to the applicant, the Permit Clerk used the general application form and the mail went to the wrong property owner. Mr. Boloyan indicated he corrected this to reflect the current property owner and explained that error did not bear any impact on the process, rather was a misidentification of the name. SRCC Minutes (Regular) 05/05/2003 Page 11 SRCC Minutes (Regular) 05/05/2003 Page 12 Regarding the appellant's issue concerning the difference between "would" versus "shall", Acting Mayor Cohen inquired whether the City Attorney's office was comfortable with the enforceability of the language contained in the resolution, to which Assistant City Attorney Guinan responded affirmatively. Councilmember Miller stated he did not find any testimony disputing the basic premise that the antenna operates at 2% of the maximum exposure limits established for safe exposure to RF emissions as regulated by the FCC. Therefore, he stated he would accept the staff report and would be happy to vote for denial of the appeal. Councilmember Heller stated she was walking the neighborhood today and commented that it was beautiful. She indicated that the information is sometimes confusing and difficult; however, she would vote to deny the appeal. She believed the RF ratings fell within the standards established by the federal government and as was stated, the City could not deny this project solely on RF emissions and safety concerns. In reading the appeal and all of the information, Councilmember Heller stated she did not see any information other than the health questions Mr. Lenci had that would make her vote not to deny the appeal. Acting Mayor Cohen noted a couple of the speakers referred to the question of whether or not it was too late, and on these issues, he believed it was too late. However, what was too late was not the City's process or willingness to hear concerns or act on them within the confines of the law, rather what was too late was that in 1996, the President signed a law preempting the City's ability to regulate these types of installations on health issues. Therefore, the City's hands were effectively tied when it came to an installation falling within the limits established by the FCC. Acting Mayor Cohen stated it was his understanding from the expert testimony provided that this installation would produce no more than, and probably less cumulatively with the other issues there, 2% of the accepted federal standard. He stated that even to take issue with the federal standard, this installation was far below that; however, the law is that even to be at 50% of that, the City would have no authority to deny the permit on that basis alone. Acting Mayor Cohen stated that unless there was expert testimony disputing that, which had not been heard at any point in the appeal process, or there was some other issue concerning the use, the City's hands were tied back in 1996, and to that extent, it was too late a while ago. Councilmember Miller moved and Councilmember Heller seconded, to adopt the resolution. RESOLUTION NO. 11305 — RESOLUTION DENYING AN APPEAL OF THE PLANNING COMMISSION'S DECISION TO UPHOLD THE ZONING ADMINISTRATOR'S APPROVAL OF AN ENVIRONMENTAL AND DESIGN REVIEW PERMIT (ED02-089) AND USE PERMIT (UP02-065) FOR THE INSTALLATION OF A NEW WIRELESS COMMUNICATION FACILITY ENCLOSED INSIDE A NEW MOCK CHIMNEY ON THE ROOF OF AN EXISTING BUILDING AND THE INSTALLATION OF ASSOCIATED EQUIPMENT WITHIN A FENCED AREA ON THE SIDE OF THE EXISTING BUILDING AT 250 POINT SAN PEDRO ROAD (APN: 009-031- 09) AYES: COUNCILMEMBERS: Heller, Miller, and Acting Mayor Cohen NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: Phillips ABSENT/ COUNCILMEMBERS: Mayor Boro, (due to conflict of interest.) DISQUALIFIED COUNCILMEMBER REPORTS: 15. a) Congestion Management Agency: - File 170 x 191 On behalf of Mayor Boro, City Manager Rod Gould reported that after the Congestion Management Agency had voted to create the sub -regional efforts to develop public input and support for the sales tax measure and obtain ideas for the local return projects, it was decided that Central Marin (mainly San Rafael area) would have fifteen representatives. Of those, seven would be appointed by the Board of Supervisors and eight by the City Council. Mr. Gould stated Mayor Boro's recommendation was that he and Councilmember Cohen seek applications or interest in serving on this committee, interview applicants and make recommendations to the remainder of the City Council to appoint the eight San Rafael representatives to the sub -regional committee, and he wished to ensure this was acceptable. SRCC Minutes (Regular) 05/05/2003 Page 12 SRCC Minutes (Regular) 05/05/2003 Pagel 3 Councilmember Heller reported she attended that meeting and noted the timeline is very short. She stated that Supervisors Brown and Kinsey each receive two appointments and Supervisor Adams would have three, with the balance going to the City to form a committee. There being no further business, Acting Mayor Cohen adjourned the City Council meeting at 9:50 p.m. JEANNE M. LEONCINI, City Clerk APPROVED THIS DAY OF 12003 MAYOR OF THE CITY OF SAN RAFAEL SRCC Minutes (Regular) 05/05/2003 Page 13