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HomeMy WebLinkAboutCC Minutes 2009-07-20SRCC Minutes (Regular) 07/20/2009 Page 113 IN THE COUNCIL CHAMBER OF THE CITY OF SAN RAFAEL, MONDAY, JULY 20, 2009 AT 8:00 P.M. Regular Meeting: San Rafael City Council Also Present: Ken Nordhoff, City Manager Robert F. Epstein, City Attorney Esther C. Beirne, City Clerk OPEN SESSION — COUNCIL CHAMBERS — 7:00 PM Mayor Boro announced Closed Session item. CLOSED SESSION — CONFERENCE ROOM 201 — 7:00 PM Present: Albert J. Boro, Mayor Barbara Heller, Vice -Mayor Greg Brockbank, Councilmember Damon Connolly, Councilmember Cyr N. Miller, Councilmember Absent: None Conference with Labor Negotiators- Government Code Section 54957.6(a) Negotiators: Jim Schutz, Leslie Loomis, Cindy Mosser, Rob Epstein, Ken Nordhoff Employee Organization(s): San Rafael Fire Chief Officers' Assn. Western Council of Engineers San Rafael Firefighters' Assn. Assn. of Confidential Employees (Local 1) San Rafael Police Mid -Management Assn. SEIU Miscellaneous & Supervisory San Rafael Police Association SEIU Child Care Unit Unrepresented Management Unrepresented Mid -Management Elected City Clerk and Elected Part -Time City Attorney City Attorney Robert Epstein announced that no reportable action was taken. ORAL COMMUNICATIONS OF AN URGENCY NATURE: Canalfront Advisory Committee: - File 9-2-60 x 9-1 8:09 PM Matt Butler, San Rafael Yacht Harbor, stated he was informed that the Canalfront Advisory Committee in late May had voted on a plan that included widening the Grand Avenue bridge, but no other footbridges or bridges across the San Rafael Canal. However, approximately one week ago, he was contacted by the U.S. Coastguard indicating they were conducting a study of the three bridges over the San Rafael Canal. Given the fiscal state of the City of San Rafael and the Federal Government, Mr. Butler stated he felt strongly that his tax dollars should not be spent on studying projects that would never happen. Bob Brown, Community Development Director, stated that Mr. Butler was not correct in terms of the actions taken by the Canalfront Advisory Committee. They discussed extensively whether to take a draft plan to the public this summer that showed one, or three bridges, and decided that, since the overwhelming input received from the public was for some means of crossing the canal in a convenient manner, that to receive further public input they would show in a draft plan three bridge locations. They would return in the fall to finalize their plan. He reiterated that no City money would be expended either in the planning effort, or ultimately in construction, rather it would have to be sought-after grant funds, which would take many years to accomplish. CONSENT CALENDAR: Councilmember Miller moved and Councilmember Brockbank seconded, to approve the Consent Calendar as follows. SRCC Minutes (Regular) 07/20/2009 2 4 0 SRCC Minutes (Regular) 07/20/2009 Page 114 ITEM Approval of Minutes of Special and Regular City Council Meetings of July 6, 2009 (CC) Resolution Authorizing the City Manager to Purchase an Appeal Bond and Execute an Indemnity Agreement for the City's Appeal to the Ninth Circuit Court of Appeals from the District Court's Judgment in MHC Financing Limited Partnership v. City of San Rafael (CA) — File 13-7-1 x 9-3-16 Designation of Voting Delegate and Alternate to the League of California Cities Annual Conference on September 16-18, 2009, in San Jose (CC) — File 9-11-1 Resolution Approving the Closure of Mission Avenue between C and E Streets on Saturday, August 15, 2009 from 8:00 a.m. to 8:00 p.m. to Accommodate Pedestrian Traffic to the Third Annual San Rafael Food and Wine Festival at Falkirk Cultural Center (CS) — File 11-19 Monthly Investment Report for Month Ending June, 2009 (Fin) — File 8-18 x 8-9 Second Reading and Final Adoption of Ordinance No. 1875: (Fin) ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL SETTING THE PARAMEDIC TAX RATE, COMMENCING WITH FISCAL YEAR 2009-2010, AT THE RATES ALLOWED IN ORDINANCE NO. 1846 FOR RESIDENTIAL AND NON-RESIDENTIAL PROPERTIES IN THE CITY OF SAN RAFAEL; AND FURTHER CONFIRMING THE PARAMEDIC TAX RATES, COMMENCING WITH FISCAL YEAR 2009-2010 FOR RESIDENTIAL AND NON-RESIDENTIAL PROPERTIES IN THE CITY OF SAN RAFAEL, THE MARINWOOD COMMUNITY SERVICES DISTRICT, COUNTY SERVICE AREA NO. 13, AND COUNTY SERVICE AREA NO. 19 ($81.00 FOR RESIDENTIAL AND $.1030 PER SQUARE FOOT FOR NON-RESIDENTIAL PROPERTY) — File 9-12-1 x 9-3-31 RECOMMENDED ACTION Minutes approved as submitted. RESOLUTION NO. 12786 RESOLUTION AUTHORIZING THE CITY MANAGER TO PURCHASE AN APPEAL BOND AND EXECUTE AN INDEMNITY AGREEMENT FOR THE CITY'S APPEAL TO THE NINTH CIRCUIT COURT OF APPEAL FROM THE DISTRICT COURT'S JUDGEMENT IN MHC FINANCING LIMITED PARTNERSHIP v. CITY OF SAN RAFAEL Approved staff recommendation. RESOLUTION NO. 12787 RESOLUTION AUTHORIZING THE TEMPORARY CLOSURE OF MISSION AVENUE BETWEEN C AND E STREETS ON SATURDAY, AUGUST 15, 2009 FROM 8:00 A.M. TO 8:00 P.M. TO ACCOMMODATE PEDESTRIAN TRAFFIC TO THE THIRD ANNUAL SAN RAFAEL FOOD AND WINE FESTIVAL AT FALKIRK CULTURAL CENTER Accepted Monthly Investment Report for month ending June, 2009, as presented. Approved final adoption of Ordinance No. 1875. 8. Resolution Approving the Purchase of Two Police Motorcycles for RESOLUTION NO. 12788 $48,681.46 from Marin BMW Motorcycles as Part of California RESOLUTION APPROVING THE Multiple Award Schedule Contracts Program which is Exempt PURCHASE OF TWO POLICE from Bid Process (PD) — File 4-2-354 x 9-3-30 MOTORCYCLES FOR $48,681.46 FROM MARIN BMW MOTORCYCLES AS PART OF SRCC Minutes (Regular) 07/20/2009 SRCC Minutes (Regular) 07/20/2009 Page 115 CALIFORNIA MULTIPLE AWARD SCHEDULE CONTRACTS PROGRAM WHICH IS EXEMPT FROM BID PROCESS Baypoint Lagoons Landscaping and Lighting District Annual a) RESOLUTION NO. 12789 Report: (PW) — File 6-48 RESOLUTION DIRECTING a) Resolution Directing Filing of Engineer's Annual Report FILING OF ENGINEER'S 2009/2010 ANNUAL REPORT 2009/2010. BAYPOINT LAGOONS LANDSCAPING AND LIGHTING DISTRICT (Pursuant to the Landscaping and Lighting Act of 1972) b) Resolution Approving Engineer's Annual Report b) RESOLUTION NO. 12790 2009/2010 RESOLUTION APPROVING ENGINEER'S ANNUAL REPORT 2009/2010. BAYPOINT LAGOONS LANDSCAPING AND LIGHTING DISTRICT (Pursuant to the Landscaping and Lighting Act of 1972) c) Resolution of Intention to Order Improvements and c) RESOLUTION NO. 12791 Setting Public Hearing on Annual Assessment for RESOLUTION OF INTENTION Meeting of August 3, 2009) TO ORDER IMPROVEMENTS AND SETTING PUBLIC HEARING ON ANNUAL ASSESSMENT FOR CITY COUNCIL MEETING ON AUGUST 3, 2009. BAYPOINT LAGOONS LANDSCAPING AND LIGHTING DISTRICT (Pursuant to the Landscaping and Lighting Act of 1972) 10. Resolution Authorizing the Acceptance and Recordation of an RESOLUTION NO. 12792 Easement Deed for Two Storm Drain Easements at the Northgate RESOLUTION AUTHORIZING Mall (APN 175-060-60) (PW) — File 2-4-38 THE ACCEPTANCE AND RECORDATION OF AN EASEMENT DEED FOR TWO STORM DRAIN EASEMENTS AT THE NORTHGATE MALL (APN 175-060-60) 11. Resolution Approving the Vacation of a Portion of an Existing 10' RESOLUTION NO. 12793 Wide Storm Drain Easement Shown on the Map Entitled RESOLUTION APPROVING THE "Northgate Regional Shopping Center" (12 RM 19) and VACATION OF A PORTION OF Accepting and Authorizing Recordation of an Easement Deed for AN EXISTING 10' WIDE STORM a Storm Drain Easement Containing a Realigned Storm Drain DRAIN EASEMENT SHOWN ON Pipeline on the Property Known as the "Mall at Northgate" (APN THE MAP ENTITLED 175-060-60) (PW) — File 2-4-38 "NORTHGATE REGIONAL SHOPPING CENTER" (12 RM 19) AND ACCEPTING AND AUTHORIZING RECORDATION OF AN EASEMENT DEED FOR A STORM DRAIN EASEMENT SRCC Minutes (Regular) 07/20/2009 SRCC Minutes (Regular) 07/20/2009 Page 116 CONTAINING A REALIGNED STORM DRAIN PIPELINE ON THE PROPERTY KNOWN AS THE "MALL AT NORTHGATE" (APN 175-060-60) 12. Accept Completion of the Fifth Avenue/Irwin Street and Fifth Approved staff recommendation. Avenue/Lincoln Avenue Signal Upgrades, Project # 11101, and Authorize the City Clerk to File the Notice of Completion (PW) — File — File 4-1-602 13. Resolution Endorsing an Agreement Between the San Rafael RESOLUTION NO. 12794 Redevelopment Agency and Seagate SR Corporation Center LLC RESOLUTION ENDORSING AN for a Postponement of the Construction Schedule to Complete AGREEMENT BETWEEN THE the Phase II Buildings for the San Rafael Corporate Center SAN RAFAEL REDEVELOPMENT Project (RA) — File R-470 x R-405 AGENCY AND SEAGATE SR CORPORATION CENTER LLC FOR A POSTPONEMENT OF THE CONSTRUCTION SCHEDULE TO COMPLETE THE PHASE II BUILDINGS FOR THE SAN RAFAEL CORPORATE CENTER PROJECT AYES: COUNCILMEMBERS: Brockbank, Connolly, Heller, Miller & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None SPECIAL PRESENTATION: 14. PRESENTATION RE: MARIN ENERGY AUTHORITY (CM) — FILE 271 Dawn Weisz, Interim Director, Marin Energy Authority, presented an update on the activities of the Marin Energy Authority. Ms. Weisz stated that the Marin Energy Authority (MEA) was formed in December, 2008 as a Joint Powers Authority. The Board is governed by 9 members and has representatives from the City of Belvedere, Town of Fairfax, City of Mill Valley, Town of Ross, City of San Rafael, Town of San Anselmo, City of Sausalito ,Town of Tiburon and the County of Marin. The first meeting was held in January and regular meetings are scheduled for the first Thursday of the month. She explained that the MEA is comprised of two committees: the Executive Committee, which sets agendas, provides direction and policy advice, handles the legislative and regulatory issues as needed; and Technical Committee, which is in charge of reviewing Requests for Proposal, (RFP,), proposals from PG&E, policy matter advice and AB32-related programs. Ms. Weisz explained that shortly after being formed they generated an ad-hoc Technical Advisory group that had been used to provide added expertise and resources during the formative stages. Members included Tom Sweet & Galen Peracca from URS, the largest engineering firm in the world; Ruth McDougall, SMUD (Sacramento Municipal Utilities District) retiree, to be in charge of procurement; Bill Kissinger providing legal and financial advise around power purchase agreements; Peter Luchetti, Infrastructure and Clean Energy Private Equity; Wally McQuat from HMH Resources; and Tom Delaney with the California ISO. Ms. Weisz submitted a hard copy of a PowerPoint presentation to the City Council which provided an overview of their activities together with a timeline. She explained that the top line represented their internal administrative structure and functions (i.e., field trips to the CAISO and to some wind sites in Solano County), plans for recruitment of an Executive Director, which would hinge on some decisions made over the next few months. She stated that the next line down discussed the CCA activity ( Community Choice Aggregation), also known as the Marin Clean Energy Project. Ms. Weisz explained that this began with the development of an RFP for energy procurement, drafted in February 2009, and released in May 2009. She noted that today was the deadline for responses to the RFP and reported that 10 responses in total had been received. Ms. Weisz explained that the next step would be to SRCC Minutes (Regular) 07/20/2009 SRCC Minutes (Regular) 07/20/2009 Page 117 develop draft contracts with the suppliers that MEA selects and bring draft contract(s) to each of the member agencies for review and discussion prior to making a final decision by the end of 2009 as to whether to proceed with this program. She indicated there was still a possibility that the project could be postponed for a while; however, given the strong response, Ms. Weisz believed that looked unlikely at this time. She explained that the third line on the PowerPoint presentation represented the interface with PG&E regarding partnership and ways that they may be able to meet some of MEA's objectives. MEA continued to be open to ideas on how to partner together; however, no additional proposals had been received from PG&E since November 2008. Ms. Weisz explained that the yellow line on the PowerPoint presentation represented the non -CCA projects, which showed much activity due to the Federal grant programs available for green energy and renewables funding. She provided a list of completed and submitted grant proposals to the Council, together with those being explored. Ms. Weisz explained that the Marin Community Foundation was presented in April with a proposal to do an AB811 program (property tax renewable energy and energy -efficiency installation program) and that a grant proposal was submitted to the California Energy Commission for "smart customer work." This would allow customers to be able to see their energy consumption in "real-time" — the ultimate goal of which was to reduce energy use in homes and to allow customers to take control over how they use energy. In addition, in regards to a peer grant through the California Energy Commission, MEA would review the possibility of implementing pump storage in Marin County through the water district. This was possible because of the excess amount of wind power from Solano County at night, which was generated at times when energy was not needed. Noting the ISO pays people to take this power, Ms. Weisz stated that the MEA was exploring ways to utilize said power at night to pump water uphill and then run it downhill with mini hydros to generate power during peak times. She also noted that they were exploring the possibility of battery storage to absorb that power during the night and use it during the day at peak times. Ms. Weisz explained that there was another item under the grant proposal that related to green building codes and standards to try and help buildings get to net zero energy use. A further grant was to the U.S. Department of Energy due in late August. This was for smart grid demonstration projects, which included the smart customer program and the AB811 program, otherwise known as SEED (Solar Energy Efficiency District). Ms. Weisz provided the City Council with the SEED program draft implementation plan and explained that the plan was created using information from other AB811 programs in California, especially the Palm Desert program's approach. She explained that the Marin program would be developed differently, in that the program would be scalable, as opposed to prior programs launched so far which were based on a finite amount of funding. She noted that three banks would be interested in providing an initial $20 million lien facility, which would allow MEA to begin the program for 6 months to a year, after which, MEA would be able to renew it by issuing a bond with a larger financial institution (two institutions were already interested at this point). Ms. Weisz believed that the MEA would then be able to reissue another $20 million lien facility at least 15 times before hitting market saturation in Marin, which would result in an economic revenue of $300 million. This would go towards energy efficiency upgrades in homes, businesses, and solar installations to reduce the need for power and to increase the amount of renewable power. She expressed enthusiasm for the program and added that MEA had incorporated recommendations from the California Home Energy Retrofit Coordinating Committee, an ad-hoc group with members from the US EPA, the CA Energy Commission, the CPUC, the Air Resources Board, PG&E, SMUD and the California Building Performance Contractors' Association. Ms. Weisz informed the City Council that MEA's Technical Committee had suggested the implementation of a strategy to allow non-member cities and towns to have access to the MEA's non -CCA programs. Using a strategy from Marin Map called the Joint Exercise of Powers Agreement, the MEA drafted a similar program that was being considered this week by the board. It would allow non-member cities and towns to participate in the non -CCA activities of the MEA. She noted that the specifics of the program would be dealt with on a case-by-case basis. Although the agreement had not yet been approved, it did have strong support from MEA's board. SRCC Minutes (Regular) 07/20/2009 SRCC Minutes (Regular) 07/20/2009 Page 118 In closing, Ms. Weisz handed out a California Energy Commission report on Community Choice Aggregation, which provided recommendations and suggestions on how California would be able to initiate and support CCA projects. Councilmember Heller thanked Ms. Weisz and Councilmember Connolly, who Chairs the MEA Technology Committee and sits on the Executive Committee, complimented Ms. Weisz and the staff of the MEA for their initiative. He added that there was a lot of work ahead, but judging from the number of bids, he felt that the MEA was moving in the right direction. Councilmember Heller inquired as to how long the review process would take and when the MEA expected to take action. Responding, Ms. Weisz explained that the next 2-3 weeks would be spent carrying out an internal review which would include Navigant Consulting, legal firm of Nixon Peabody, the ad-hoc technical advisory group and the MEA's technical committee. She explained that the internal review would culminate in a bid summary, as well as draft recommendations for the board. The bid summary with recommendations would be submitted to the Technical Committee on August 17th, 2009 and presented to the executive committee on August 19th, 2009. A full board meeting would be held on August 20th, 2009, at which time the Board could decide to take action on the recommendations and decide which bids they would continue to pursue to develop contracts. They hoped to have a document prepared by September 2009 that would be an early form of a contract with one or possibly more suppliers, which would then be submitted to the member agencies for input. Ms. Weisz stated that there would be a minimum 90 -day review period for the contract; however, the Technical Committee recommended that the first loop out to Councils would include a preliminary draft. In 30-60 days the draft would be solidified for the board to use as a solid document a when they took their vote. The final votes by each Council would need to occur by the end of 2009. Councilmember Brockbank noted that in the next few weeks MEA would review the responses received followed by a 90 -day period to develop a draft contract, which would include a "looping out" to the Councils for informal input. By mid-November, the MEA would have selected one of the responses, obtained initial input from the Councils and would have a draft energy services provider contract that would be agreed upon with the energy services provider and approved by the Board. This would then begin the formal stipulated 90 -day review period to February, 2010 before being enacted by the Board. Ms. Weisz clarified that the 90 -day review period was targeted to start in late September 2009. Councilmember Brockbank confirmed with Ms. Weisz that by the end of 2009, MEA hoped to have the contract approved by all member cities — possibly approved by the Board with input from cities — at which time cities could opt out should they so choose. This would have to be accomplished by an affirmative majority vote. Referring to the document entitled Solar & Energy Efficiency District (SEED) Mayor Boro inquired of Bob Brown, Community Development Director, as to how SEED related to the efforts he was currently working on in this respect. Mr. Brown explained that MEA would like to be the administrator of the AB811 financing program, essentially in parallel with his efforts. He listed efforts by BERST (Building, Energy, Retrofit and Solar Transformation) in support of this: 1) receiving more notoriety for the opportunities with the various City Councils; 2) looking at the various providers and opportunities in the field in the fall; and 3) helping devise for the MEA the desired parameters in Marin County for such a program, not only those issues the building performance contractors indicated, rather whether there could be public policies adopted by the various cities that could support this effort. He indicated they were exploring these avenues and by year- end hoped to have additional input for MEA that would be useful. APPEAL HEARING: SRCC Minutes (Regular) 07/20/2009 SRCC Minutes (Regular) 07/20/2009 Page 119 15. 100 BLOCK OF WINDWARD WAY — APPEAL OF PLANNING COMMISSION DECISION TO DENY THE APPEAL AND UPHOLD THE ZONING ADMINISTRATOR APPROVAL OF A USE PERMIT AND AN ENVIRONMENTAL AND DESIGN REVIEW PERMIT TO ALLOW THE INSTALLATION OF SIX (6) PANEL ANTENNAS ON AN EXISTING PG&E LATTICE TOWER WITH ASSOCIATED EQUIPMENT CABINETS LOCATED IN A SHED AT THE BASE OF THE TOWER; APN: 009-330-01; MEDIUM DENSITY RESIDENTIAL (MR2) DISTRICT; UNIVERSAL PORTFOLIO LTD, OWNER: VERIZON WIRELESS, APPLICANT, CONNIE BARKER AND LOUISE YOST, APPELLANTS: CASE NUMBER: APO -003 — FILE 10-2 (5) Windward Wav As he owned stock in Verizon, Mayor Boro recused himself and left the Council Chambers, due to a potential conflict of interest. Vice -Mayor Heller declared the appeal hearing opened. Paul Jensen, Planning Manager explained that he would present the zoning and land use issues, together with the process and appeal points, and the City Attorney would address other issues related to radio frequency emissions in relationship to the Federal Communication Commission. Providing background, Mr. Jensen explained that Verizon Wireless had filed planning applications to install six telecommunication antennas and ancillary facilities and a generator on a PG&E tower located on Windward Way. He noted that, although the City of San Rafael had no regulation over radio frequency emissions, the City did have a Use Permit and an Environmental and Design Review permit process for such facilities to regulate the siting, location and design. The project site was located on Windward Way and was residentially zoned and for that reason, included in the process was a requirement to prepare an alternative site analysis. This meant that Verizon must provide a study showing that other sites that were studied were dismissed in favor of the proposed site. Using PowerPoint Mr. Jensen referred to a general location map and identified the proposed facility on Windward Way. He explained that this portion of Windward Way was approximately 350 feet south of Bellam Boulevard, and, noting the uniqueness of the property, he explained it was the only residentially - zoned property south of Bellam Boulevard. He showed photographs of the PG&E tower where the antennas were proposed, noting the facilities would be at the base of the tower. Mr. Jensen reported that the Use Permit and Environmental and Design Review permit were approved by the Zoning Administrator in November 2008, based on a number of findings: The facility was well within the FCC limits for radio frequency emissions (the projected emissions for the facility were less than 1 % of the FCC limits). He stated that four alternative sites were considered in the alternative site analysis, all in the general area of Windward Way, and the conclusion was that the proposed site was remote to residential -- over 400 feet to the closest residence — and that the facilities as conditioned would meet the Design Review permit criteria. Having gone through a Design Review Board process, the DRB favorably reviewed the application with some conditions, which had been incorporated. Mr. Jensen reported that the action was appealed by residents of Ecology House to the Planning Commission, which held two hearings, the first being on January 13, 2009. Subsequent to a lengthy public hearing, the Planning Commission recommended that the matter be continued for additional information. They requested an inventory of the other existing facilities in the area, together with the desired service ring for the service to be provided by the antennas. They also requested additional substantive data supporting the alternative site analysis and a report from the City Attorney confirming the City's extent and limits of regulations under the Federal Communications Act related to RF emissions, together with the relationship to the Americans with Disabilities Act. Mr. Jensen referred to a map, which was submitted to the Planning Commission, showing the permitted and installed telecommunication facilities in the central San Rafael area, prepared as part of an inventory that was commissioned by the City several years ago by the Kramer Firm. They provided a complete update of the readings and the inventory of the facilities the City had permitted and that had been installed. With regard to the service ring requested by the Planning Commission, Mr. Jensen explained that the area proposed to be served was generally covered by portions of Spinnaker Point and the Bahia de SRCC Minutes (Regular) 07/20/2009 SRCC Minutes (Regular) 07/20/2009 Page 120 Rafael residential complex, with some areas of Baypoint Lagoon. The revised alternative site analysis requested by the Planning Commission was returned with some expanded information on the four studied sites -- 3 additional sites were also discussed in the report. Given the concern regarding the alternative site analysis, staff chose to return to the Kramer Firm for a peer review. The Kramer Firm confirmed that the service area boundaries were "adequate and appropriate." Mr. Jensen reported that they suggested a fifth alternative at the Pickleweed Park site, which was north of where the service ring was proposed. He noted that since that site was currently zoned as park and open space, it would be required to undergo the same process with alternative site analysis. A monopole would be necessary, as there would be no other facilities to co -locate onto at Pickleweed Park. Mr. Jensen concluded that the peer review supported the site selection but recommended some conditions for design changes, which had been incorporated into the draft resolution before the City Council. Mr. Jensen reported that this issue returned to the Planning Commission on May 26, 2009 when several new issues were raised, specifically the transmission of "dirty" electricity. Essentially, this was the hypothesis that radio energy moves along power lines. Hammett & Edison, telecommunication specialists, were present at the meeting and indicated that the two energy sources did not mingle Mr. Jensen stated that another issue raised was that the proposal was inconsistent with General Plan Policy NH2; that the proposal would change the character of the neighborhood and render Ecology House obsolete. The Planning Commission ultimately determined that the project was not in conflict with policy NH2 and denied the appeal. The matter was then appealed to the City Council. Mr. Jensen noted the primary issue in the appeal again was the question of inconsistency with General Plan Policy NH2. For reference, Mr. Jensen stated that the entire policy was cited in the staff report on page 4. Mr. Jensen reported that the staff report concluded that the "character of neighborhood" was defined as follows: "typically and historically been interpreted to mean and apply to physical changes and physical improvements that could impact the physical character of the environment or the neighborhood." Mr. Jensen described the Windward Way neighborhood as one of mixed uses and improvements, collectively forming the physical character of the neighborhood. They included: residential, commercial, office, light industrial and several PG&E power lines, some having antennas. A distinction of this neighborhood was that everything north of Bellam Boulevard was residential with south of Bellam Boulevard being commercial and light industrial. The site in question was located south of Bellam Boulevard. In addition, Mr. Jensen stated that the proposal would not change the character of the cell tower. Mr. Jensen pointed out that Ecology House was approved in 1994 and built by the Ecumenical Association for Housing, specifically for low-income and chemically -sensitive residents. He clarified that there was a correction in the staff report to the effect that Ecology House is owned by Ecology House, Inc. (a separate entity). Nonetheless, he stated that there was nothing in the EAH record or the City's file to indicate that the complex was approved for residents with other sensitivities. Similarly, there was no special safety zone or restriction recorded limiting the uses on this property or surrounding uses when that action occurred in 1994. Mr. Jensen reported staff requested that radio frequency emission readings be performed at Ecology House which concluded that, under existing conditions, the exposure for radio frequency (RF) emissions was four -tenths of 1 % which would increase to eight -tenths of 1 % with the addition of the antennas. This was still less than the 1 % of the FCC limits that are regulated. Rob Epstein, City Attorney, stated that the appeal concerned the proposed installation of personal wireless service antenna facilities that comply with the regulations of the FCC concerning radio frequency emissions. Because the proposed facilities complied with the FCC regulations, the Federal Telecommunications Act prohibits the City of San Rafael from denying the application on the basis of health or environmental effects, including any such effects on persons who identified themselves as having sensitivity to radio frequency emissions. He indicated that it would be unlawful for the City Council, in making its decision on this appeal, to include any consideration of the health or environmental effects of the proposed antenna facilities. Mr. Epstein noted that some of the correspondence received regarding the appeal suggested that there was a section(s) in the Federal Telecommunications Act, which authorized the City to ignore the preemptive provisions of the Act, including reference to Section 601(c). After careful review of the law, Mr. Epstein concluded that the contentions that were made in the correspondence received were, SRCC Minutes (Regular) 07/20/2009 SRCC Minutes (Regular) 07/20/2009 Page 121 respectfully, inaccurate. He also noted the suggestion that the City's consideration of the application was somehow governed by the Americans with Disabilities Act, which was also incorrect. The ADA prohibits discrimination on the basis of disability in services, programs or activities of state or local governments or in services, facilities and accommodations provided by places that accommodate the public, i.e., hotels, restaurants, theaters, etc. Neither a government owned or sponsored facility nor a privately -owned place of public accommodations was involved in the subject application. Mr. Epstein noted that the only item on the meeting agenda this evening concerning personal wireless service antenna facilities was the subject application for a Use Permit and Environmental and Design Review permits, and the appeal from the Planning Commission's decision to grant said permit. He added that there was no other action concerning this subject on this agenda and the only necessary action was on the appeal. There was no other resolution, study session, discussion, deliberation or otherwise agendized concerning wireless antenna facilities, other than this appeal.. Referring to the alternative sites analysis, Councilmember Connolly reported that he inspected the area and honed in on one particular alternative site which was under review. He invited Mr. Jensen to elaborate on the additional PG&E tower south of the proposed tower which visually appeared to be a viable alternative that would be at an increased distance from Ecology House. His understanding from the staff report was that it was simply a matter of the landlord refusing to consider it, also throwing out the fact that there was an existing cell tower operator on the premises and that their housing below the tower would not permit another housing. He inquired whether the option had been fully explored. Responding in the negative, Mr. Jensen stated that an unwilling landlord was a deterrent to selecting that particular site. He explained that the landlord, PG&E, leased a portion to Metro PCS (Sprint). They fully occupy the base and for the additional antenna they would be required to go outside the limits of the tower itself and build their support facilities beyond that.. He indicated that the applicant was present and could elaborate. Vice -Mayor Heller stated she understood that PG&E was not the owner of the property, rather they leased the tower but did not own the underlying property. Mr. Jensen stated that this was part of the complication in that there was a large PG&E easement encumbered on said property, but that the rights of use at ground level could be limited to the tower. Ecoloqv House Joan Ripple, Secretary/Treasurer of the Council on Wireless Technology Impacts, read her statement for the record, as follows: "I served as the staff person for the former California Senate Judiciary Subcommittee on the Rights of the Disabled that published a report on the four year study called 'Access for People with Environmental Illness/Multiple Chemical Sensitivities (EI/MSC) and Other Related Conditions.' The study group was a 75 member Blue Ribbon Committee of national experts from a variety of fields representing the stakeholders: Department of Technology and Policy at MIT; HUD; HUD housing consultant and consultant on Ecology House; Katie Crecelius; several persons with EI/MCS, including Susan Molloy, a person who spearheaded the drive to build Ecology House; representatives of multiple medical specialties; the American Academy of Environmental Medicine; industry representatives, representatives of several California state departments, including the Energy Commission and CAL EPA, to name a few. The Committee met from 1992-1996. We have provided a copy of the report for the record. Electromagnetic fields from elevators, computers, escalators, generators, office equipment, BART and other modes of transportation were identified in the report as common barriers to access for persons with this disability. Persons involved in the Ecology House planning and construction knew this. So when it was built, given that the site was so close to the PG&E high power line, building specifications included specialized wiring techniques that were used to minimize electromagnetic fields contrary to what is in the staff report information provided by the Ecumenical Association for Housing (EAH). Electromagnetic or radio frequency fields or electrical sensitivity may not be in EAH's records, but it was considered an SRCC Minutes (Regular) 07/20/2009 SRCC Minutes (Regular) 07/20/2009 Page 122 appropriate shielding for the science at the time. A follow-up evaluation report on the project by HUD consultant, Katie Crecelius, reports extensively on the issue of electromagnetic fields and the actions taken to mitigate those things in the construction process on pages 17 and 18 of that report, so EAH's report was incorrect. EAH was one of the developers and is the property manager. In the ensuing twenty-three years, the data shows that fifty percent of persons with this disability also become electrically sensitive; this compounds the disability. The exponential proliferation of wireless communications since 1996 and its ubiquitous, invisible nature makes it nearly impossible for this disabled population to function. We recognize the impediments you face because of the preemption Section 704 of the Act, but we call to your attention that, once you allow a site to be used for cell towers, under the same law, you cannot deny any other provider from co -locating at that site if the property owner is willing, and owners are usually willing because it's lucrative." Ms. Ripple offered three suggestions: 1) That Verizon be asked to consider a monopole (at Pickleweed Park) that could be disguised to resemble a tree; 2) If the decision was to approve Windward Way that there be a condition added for the carrier to assist Ecology House with mitigations when the measurements of the fields increase; and 3) That the City Council assist Ecology House in developing a resolution to support them with the Federal Government, as several other U.S. cities had already done. Louise Yost, resident of Ecology House, addressed the City's response to the cell tower appeal letter of June 2, 2009. She noted that there were errors she would like to correct on Page 5, Item 2 of the current staff report. She stated that in 1988, Marin Homes for Independent Living decided to work with the Environmental Health Network to develop a new affordable housing project to meet the needs of persons with chemical and electrical sensitivities. In 1990, these two organizations asked the Ecumenical Association for Housing to join with them to develop Ecology House. These three groups formed a new non-profit corporation called Ecology House Incorporated to own and manage this project. The three organizations approached Housing and Urban Development (HUD) and obtained their support. HUD loaned Ecology House, Inc. the money to build the apartment complex. HUD then gave Ecology House, Inc. two 20 -year rental assistance contracts, so the owner of Ecology House was actually Ecology House Incorporated, not the Ecumenical Association for Housing, as stated in the current staff report. She stated that Ecumenical Association for Housing currently only manages Ecology House. Ms. Yost noted that Ecology House was designed to minimize the effects of electrical magnetic fields in order to make the building accessible to people with electrical sensitivities. According to the booklet, "Ecology House Evaluation and List of Building Materials," (November 1997), it instructs builders to "use wiring techniques which minimize electromagnetic fields, locate refrigerators, stoves, electric panels and electric motors to minimize the impact of the electromagnetic fields and noise." In addition, internal wiring was covered with aluminum or copper to decrease EMFs. All power was distributed through the attic and dropped down to individual apartment unit panels in the conduit. Metal EMF shielding was installed in the walls behind the electrical room and on the second story floors above the first floor ceiling fans. EMF shielding was installed in the roof to protect occupants from the EMFs from the nearby electrical towers, etc. Ms. Yost clarified that an extensive amount of thought and planning went into the design of Ecology House from the beginning in order to protect future tenants from EMF exposure, contrary to what the current staff report indicated. Lastly, Ms. Yost urged the City Council to honor the Americans with Disabilities Act (ADA) in providing reasonable accommodation for this situation. She felt that it was appropriate to request Verizon to move the cell tower at least one block away from Ecology House, which would be a safe distance for the residents. She believed Verizon's purposes would still be met and Ecology House residents would be able to remain living there in safety and soundness, creating a "win-win outcome" for everyone. Rov Smith, former manager of Ecology House for 7 years, stated he was intimately acquainted with both the design and the problems of EI and provided a copy of the report which was commissioned by the board in 1997, written by Katie Crecelius. He believed it was understood from the very beginning that mitigating EMFs in the design and construction of Ecology House was an integral part of the project. The original HUD lease documents mention EMF sensitivities as part of the project. Responding to some of the errors in the appeal report, namely the General Plan 2020 NH -2 statement that discussed neighborhood character being interpreted to mean "physical changes" he noted the policy stated: "....continue to preserve, enhance and maintain the residential character of the neighborhood and should SRCC Minutes (Regular) 07/20/2009 SRCC Minutes (Regular) 07/20/2009 Page 123 enhance neighborhood image and quality of life." Mr. Smith believed that causing injury or illness to disabled residents of Ecology House and causing the suffering and pain of some residents having to move out would not enhance the quality of life for those residents. Also, if this should cause Ecology House to fail, the physical character of the neighborhood would not be enhanced either. He believed that the "quality of life" portion of the statement included more than architecture, land use or aesthetics. Mr. Smith commented on a point he made at a Planning Commission meeting regarding the potential conflict of ADA law and the Telecommunications Act. He argued that the effects on the lives of the Ecology House residents from the cell tower's EMF pollution were analogous to a property owner polluting a stream that flows through another's property. The pollution levels were measurable, the harm was real and there were 2,000 studies in robust restrictions and cautions about these levels from medical and governmental bodies around the world. Mr. Smith believed there was a contradiction in the language found in the Use Permit -- Finding #2, page 17 -- "the project would not be detrimental to public health, safety or welfare or materially injurious to properties or improvements in the vicinity." Believing the cell tower failed on all of these points, Mr. Smith argued that the health, safety and welfare of Ecology House residents would be adversely affected, as would the property. The language itself was in conflict with the Telecommunications Act, Section 704. Lastly, Mr. Smith believed that Section 704 of the Telecommunications Act was unconstitutional based on the grounds that "by expressly forbidding consideration and public hearing on matters having potentially profound and catastrophic effects on a portion of what seems to be a denial in due process." He admitted he did not fully comprehend the law; however, he believed it to be bad law. He called on the City Council to join the long and growing list of municipalities around the country that had passed resolutions challenging this section. Sarah Reillv, Board member of the Council for Wireless Technology Impacts and a Marin nutritionist, stated she became chemically sensitive in 2002 and became electrically sensitive a year later, due to the cell towers installed near her home, which manifested itself as burning sensations all over her body. She believed this case underscored the drastic inadequacies of the Telecommunications Act of 1996, particularly Section 704 and its need for revisions. Its stated regulations were incongruent to actual radiation exposures. Ms. Reilly quoted from a letter from the EPA dated July 16, 2002: "FCC's current exposure guidelines are thermally based and do not apply to chronic, non -thermal exposure situations. Therefore, the generalization by many that the guidelines are protecting human beings from harm is not justified." Commenting on protecting the disabled, chemically sensitive and electrically sensitive, Ms. Reilly noted these people were disabled in an invisible way which was very difficult to perceive. Although she appeared healthy, she reported that she was limited in her environment because of the invisible nature of her illness. Quoting from Section 601(c), she stated: "it precludes any party from arguing that the 1996 Act modifies, impairs or supersedes any existing Federal, State or local law by implications. The Act is to be construed as modifying existing law only when it expressly so states." Confused, she requested greater clarity on the statement, about ADA and its implications and lack of standing against the Telecommunications Act of 1996. Having searched for the words "disabled" or "disability" within the context of the Telecommunications Act she questioned where it was explored within the Act. Noting residents of Ecology House were there because of being chemically sensitive with some electrically sensitive and therefore, disabled, Ms. Reilly stated that these sensitivities were recognized by the ADA and the U.S. Access Board. She noted the ADA was established in 1990 six years prior to the Telecommunications Act. Ms. Reilly inquired as to whether Verizon had provided a substantial proof of need for coverage in the proposed area. She argued that Verizon customers were already receiving adequate service and noted that four previous court cases in the United States acknowledged that cell towers were refused. Connie Barker, appellant, resident of Ecology House and vice-president of Ecology House, Inc., reiterated that Ecology House Incorporated did own the building. She commented that she was a very satisfied Verizon Wireless customer of many years standing. She submitted a copy of Ecology House rules for residents, and quoted: "Rule #16, Electrical Appliances: with the exception of kitchen appliances, residents must plug appliances including TVs, computers, etc. into walls that do not adjoin SRCC Minutes (Regular) 07/20/2009 SRCC Minutes (Regular) 07/20/2009 Page 124 other units. Only effectively shielded microwave ovens may be used on site, portable fluorescent lights must not disturb neighbors." Ms. Barker stated that these rules had been in effect since Ecology House opened in 1994. She noted that EAH, which now manages the building, had only managed the building for approximately the last 6 months; therefore, she was not surprised by the fact that they did not have an updated history. She opined that Mercy Services, who previously managed the residence, may have been more knowledgeable on the building. Regarding General Plan Policy NI -12 -- "preserve historic and architecturally significant structures" and "maintain or enhance infrastructure service levels, etc.", Ms. Barker stated that it would be pointless to preserve a structure if it could not be used for the purposes for which it was designed. She also pointed out that it was not just General Plan Policy NH2 that was being referenced in the appeal. Page 35 of this evening's report showed findings which referred also to General Plan Policy CD2 regarding neighborhood identity. Finding E stated: "It would preserve the existing neighborhood identity." Whether residential character or neighborhood identity, she indicated that either way, Ecology House had been a presence in the area for years. Part of the identity, character and infrastructure use of the neighborhood was that they had been there using the facility for those with specific disabilities, specifically for low- income residents with disabilities and as a community gathering place. She confirmed that the Hammett/Edison report was received by the City Council and noted on the measured power density chart how the numbers jumped. Dwiqht Steves, resident of the neighborhood and not affiliated with either the applicant or the appellants, indicated he never requested the tower and felt that the reception in the neighborhood was already adequate. Noting the Wellness Center opening and Mi Pueblo being considered to replace Circuit City, which would increase traffic, Mr. Steves felt that residents of this area were already giving a lot and not getting much in return. He also addressed the safety hazards of Bellam Boulevard not having enough crosswalks, adequate lighting or an efficient median. Ivaldo Lenci, resident of San Rafael, stated that six antennas were installed in front of his house which he believed contributed to the fact that residents were suffering from cancer and fatal diseases. He inquired as to why the City of San Rafael needed more antennas when it already had 18 antennas in a 2 square mile area. He felt that antennas were bad for the environment and for humans. John Revnolds, member of the First Methodist Church, San Rafael, and a resident of the Canal, felt that nature should be appreciated and that the most vulnerable people should be heard. He referenced a principle in nature that people are sensitive to their surroundings. He had a problem with a Telecommunications law that did not consider health and environmental issues in making telecommunications decisions. He felt that the tower should be placed further away from Ecology House or at least shield it in some way so that it would not adversely affect the environment or those most vulnerable in the area. Martv Brenneis, resident of Spinnaker Point, stated he did a search on a .5 km radius from Ecology House on the FCC database and reported he had 409 hits of licenses for FCC transmitters. He noted that most of the transmitters were no longer there, due to being replaced by cellular service. He stated that Ecology House had been bathed in radio frequency since it was built. Since the neighborhood had historically had radio frequency emissions, he felt that it was not a change of character for the neighborhood. He reported having experience with people who indicated they were electrically sensitive, due to his work as an audio engineer, and dismissed the illness as perception. He commented that many of the Ecology House residents present at the meeting this evening did not seem to be bothered by the radio frequency in the council chambers. He supported the tower at 100 Windward Way. Clarence Chavis, Bridge Communications, speaking on behalf of Verizon Wireless stated that the site was approved administratively by the Design Review Board and the Planning Commission. He provided a revised alternative analysis to show that the proposed site was necessary to provide the coverage required. He showed on a map the search ring (the area of concentration) the northern boundary of which was Canal Street, just south of Pickleweed Park, to the east past Spinnaker Point Drive to the Bay, to the south Vista Del Mar and to the west Kerner Boulevard. Mr. Chavis noted that the original request was to locate something within that area; however, everything was primarily residential and included an elementary school. Due to the commercial and industrial SRCC Minutes (Regular) 07/20/2009 SRCC Minutes (Regular) 07/20/2009 Page 125 zoning of the proposed tower, it was considered a more appropriate location for the tower and allowed Verizon to meet the objectives of the City Code regarding wireless facilities on an existing PG&E tower, as well as serving the needs for data services, internet and wireless coverage. After looking at additional alternative sites for the proposed antennas, 2 sites were found to be PG&E towers in the search range; however, one was next to a school and the other was directly in front of an apartment complex and neither provided the ground space needed. In addition, a tower north of Pickleweed Park was considered; however, it was found to have limited access due to its marshland surroundings and the fact that the environmental review would be substantial. Other sites in San Rafael evaluated were deemed too far for adequate coverage. Mr. Chavis reported that the owner preferred the current area and the equipment would not disturb the tenants or the operation that currently existed there. Noting City staff also conducted an independent review of the project through attorney, Jonathan Kramer, Mr. Chavis reported Mr. Kramer stated that: "the proposed location is the ultimate location or build a new monopole which is less favorable through City guidelines, especially in residential areas." Accordingly, Mr. Chavis stated they must adhere to the primary objective which was the PG&E tower off Windward Way. He displayed photographs of the area which confirmed there were no residences in this commercial area and noted that, since their equipment was located under the tower, it would not create any additional physical impact. Mr. Chavis stated that their site was approximately 423 feet away -- the size of a football field between the tower and the residences, with additional feet to spare. He noted residents of Ecology House were allowed to have cellphones, cordless phones and electrical appliances, etc. Recognizing this was a difficult decision for the City Council, Mr. Chavis expressed empathy for those suffering from unfortunate illnesses. He noted materials submitted from studies by the appellants came from Europe and other places; however, he had a report that refuted some of the evidence in one of these studies. Mr. Chavis stated that the appellants did not provide evidence that the EMF ratings submitted for review would not allow residents to live in Ecology House in the manner they were used to. He recommended approval of the project based on the recommendations of staff, the Zoning Administrator, Design Review Board, the Planning Commission and the conditions provided by Jonathan Kramer. Paul Albritton, Verizon Wireless Attorney, submitted a letter prepared in connection with this issue. He reported having represented wireless companies for 25 years and commended cell phone technology for its ability to save lives, etc. He noted that the City of San Rafael's staff had recommended approval of this facility three times, with which he concurred. With regard to radio frequency emissions, Mr. Albritton noted the comment on whether the provision of Section 332 expressly preempted this area as opposed to Section 601, which stated that indirect areas were not preempted. He quoted the Federal Provision in the letter: "no state or local government or instrumentality thereof may regulate the placement of facilities" based on the environmental effects of radio frequencies. Mr. Albritton noted that the Federal Government was not cavalier in its findings in 1996. They had 18 Federal Agencies look at the radio frequency emissions' effects, done studies that evaluated potential health effects and set a standard that was 50 times below the limit. Noting the current measurement was half a percent with a suggestion of an additional .4, he indicated this calculation was based on the worst- case scenario of all antennas firing at full capacity non-stop from the Verizon facility, which does not happen. The actual measurements were way below the theoretical measurements. This report was attached to his letter. He noted that walls produced a ten times reduction of EMF levels, so inside a building, a resident would be 1000 times below the standard. Mr. Albritton noted an area of the law that Mr. Epstein did not address was that this differs slightly from other land use decisions requiring findings and substantial evidence for approval. Under Federal law, there must be substantial evidence and findings to deny a telecommunications site. Mr. Albritton stated he had included the letter from the landlord indicating they were not interested in leasing that space. He indicated that generally with PG&E there was a master agreement with the carriers in order to use their facilities. Generally PG&E had an easement for power lines, and they SRCC Minutes (Regular) 07/20/2009 SRCC Minutes (Regular) 07/20/2009 Page 126 frequently obtained modifications to easements in order to allow communications facilities to be mounted into the ground. In this case, the property owner receives compensation. He described Verizon Wireless facilities as being more "robust" than Metro PCS facilities, partly because they broadcast on more frequencies. Mr. Albritton reported the landlord indicated he did not want it there and should there be a desire to place it adjacent to that tower, under PG&E rules it would have to be 30 -feet away from the current base of the tower. Mr. Albritton reiterated his belief that cellphones save lives and there were no attributable deaths to the concerns expressed this evening. There being no further comment from the audience, Vice -Mayor Heller closed the appeal hearing. Paul Jensen responded to the question of who owns 100 Windward Way by stating that the alternate site property owner also owns the subject property. He also addressed the need for the tower and referenced Mr. Chavis' explanation that they submitted the search ring as requested by the Planning Commission to demonstrate the area that was void and where the need occurred. This was reviewed by the Kramer Firm as well as the alternative analysis. Regarding the Use Permit finding of not being injurious to the health, safety and welfare of the residents, Mr. Jensen stated that staff had to rely on the FCC limits to dictate that one issue. In reference to Section 601(c), Mr. Jensen deferred comment to City Attorney, Rob Esptein. Mr. Epstein stated he had no further comment on that matter as it had already been addressed. He noted the comment regarding an analogy to pollution or what he gathered to be some type of nuisance argument regarding what one landowner did to another. Thereto, it was clear that when there was compliance with the regulations, Federal law preempts the field and the law says that the facilities were compliant. Councilmember Brockbank stated his understanding was that the ADA applied to those requesting reasonable accommodations from their employer or landlord and not for someone requesting a reasonable accommodation from the City with regard to a nearby development, He was also satisfied that Section 601(c) did not apply, as alleged by some of the appellants, and he was also satisfied that it did not violate the San Rafael General Plan section on neighborhood character. Councilmember Brockbank indicated he was satisfied that the Section 704 exemption did apply. He commented that one would need to have a heart of stone not to feel sympathy for the potential damage and the fear people had that they would be injured, which they may or may not be as there was no way of knowing for sure, Councilmember Brockbank stated he could not comfortably support the finding pointed out by Roy Smith in the resolution — page 7 — paragraph 2. which stated , "The proposed use ... will not be detrimental to the public health, safety or welfare, or materially injurious ...." and inquired how this could be stated with any certainty. He questioned whether this finding was absolutely required or whether the appeal could be denied deleting the section in the finding that this was not injurious. Mr. Jensen explained that the finding was required for approval of the Use Permit. The grounds that staff used pm which to base the findings were the rules and regulations in place, the thresholds for certain conditions and requirements. Among them were the FCC regulations. If the project was in compliance with the FCC regulations, staff had to make the finding that it was not injurious to the health, safety and welfare because it was within the limits that the City was obligated to respect. Mr. Epstein concurred with Mr. Jensen's statement and added that, given the compliance with the FCC regulations, the finding must follow. Should it make Councilmember Brockbank more comfortable a reference to the compliance with the FCC regulations could be contained within that finding to make clear the basis for the finding. Councilmember Brockbank stated he was going to recommend a minor amendment. He indicated that ironically, when attorney Albritton made his case he may have inadvertently weakened it somewhat when he indicated that under Federal Law one need not make findings in support so much as findings should it be opposed. Councilmember Brockbank stated he was not suggesting making findings in opposition, rather he was concerned at being placed in such an expert position. He indicated he would be more comfortable with inserting a phrase such as "pursuant to the guidelines of the FCC standards and testing, no findings could be made of injury." He indicated he understood the City Attorney's point that this was SRCC Minutes (Regular) 07/20/2009 SRCC Minutes (Regular) 07/20/2009 Page 127 not the time to discuss the concept of preemption, as it was not on this evening's agenda Councilmember Brockbank stated he felt uncomfortable that the City Council was being forced to subject citizens to possible harm, which there was no way of knowing would occur or not, and the entire field of opposing the federal preemption appeared to be growing. He hoped to receive better resolution of their strong opinions that the science, on which this was based, was outdated. He inquired whether item #2 on page 7 of the resolution could be modified and requested an amendment. Mr. Jensen clarified that staff had distributed some revisions to the draft resolution that corrected the property ownership of Ecology House. The question of the EMFs was not indicated to him when he contacted EAH in terms of the buildings being retrofitted with that information. This information was not in the building files, in the building drawings or the building permit. He clarified that staff did that research. Vice -Mayor Heller confirmed that language had been added to pages 4 and 5 of the resolution as provided to the City Council in a handout for this evening's meeting. Mr. Epstein proposed a revision to paragraph 2. - page 7 of the resolution — Use Permit findings. He quoted:, "The proposed use, together with the conditions applicable thereto as evidenced in finding #1 above" and suggested inserting the following: "and due to the consistency of the use with the applicable regulations of the Federal Communication Commission, is determined to be not detrimental to the public health, safety or welfare." Councilmember Miller, although believing that the illness of chemical and electrical sensitivity was invisible and very real, felt compelled to follow the law as interpreted by the City Attorney, which prohibited him from considering health or environment. He believed the ADA did not apply in this situation and that the physical character and environment of the neighborhood would not be impacted. Councilmember Connolly concurred with Councilmember Miller in that he also felt compassion towards those with health concerns; however, he also agreed in this situation, that some of his specific concerns had been addressed in terms of possible alternative sites. Based on the advice of the City Attorney he believed any action by the City Council to even consider the health effects was preempted by Federal Law, as it now stood. He believed the proposed amendment was well taken. Councilmember Brockbank moved and Councilmember Connolly seconded to adopt the resolution with the amendments noted. RESOLUTION NO. 12795 — RESOLUTION DENYING AN APPEAL (AP09-003) AND UPHOLDING THE ZONING ADMINISTRATOR ACTION TO APPROVE A USE PERMIT (UP08-001) AND AN ENVIRONMENTAL AND DESIGN REVIEW PERMIT (ED08-002) TO ALLOW THE INSTALLATION OF SIX PANEL ANTENNAS ON AN EXISTING PG&E TOWER WITH ASSOCIATED EQUIPMENT CABINETS ENCLOSED IN A SHED SITED AT THE BASE OF THE TOWER WHICH IS LOCATED ON THE 100 BLOCK OF WINDWARD WAY (APN: 009-330-01) AYES: COUNCILMEMBERS: Brockbank, Connolly, Miller and Vice -Mayor Heller NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: Mayor Boro due to a possible conflict of interest. Mayor Boro returned to the Council Chambers CITY MANAGER'S REPORT: SRCC Minutes (Regular) 07/20/2009 SRCC Minutes (Regular) 07/20/2009 Page 128 16. State Budget: - File 9-1 City Manager Ken Nordhoff stated that he anticipated a budget from Sacramento soon and hoped to have fiscal news to report at the next City Council meeting, although he felt it would not be favorable news regarding the City's budget. COUNCILMEMBER REPORTS: 17. SMART — File 245 Mayor Boro handed out copies of a press release from SMART regarding the vehicle selection carried out last week, which included some of the rationale behind it. He stated that the Board had chosen the compliant vehicle -- the "Heavy DMU" -- which would run concurrent with freight and passenger rail. He felt it was a step forward for SMART to get to that point. There being no further business, Mayor Boro adjourned the City Council meeting at 10:01 PM. ESTHER C. BEIRNE, City Clerk APPROVED THIS DAY OF 12009 MAYOR OF THE CITY OF SAN RAFAEL SRCC Minutes (Regular) 07/20/2009