The purpose of division 16-42 is to establish a comprehensive set of zoning requirements for antennas and wireless communication facilities (hereinafter "WCFs"). These regulations are intended to provide for the managed location and development of antennas and WCFs in a manner that recognizes and enhances the community benefits of wireless communication technology and reasonably accommodates the needs of citizens and wireless communication service providers in accordance with federal and state rules and regulations, while at the same time protecting neighbors from potential adverse impacts of such facilities, preserving the visual and other characteristics of the established community and the natural beauty of hillsides and ridgelines.

(Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010)

The technical terms and phrases used in division 16-42 are defined in article X (definitions) under "wireless communications facilities."

(Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010)

Exemptions. The requirements imposed by this division shall not apply to certain antennas or antenna structures, as set forth in this section, unless otherwise specified herein. Each such exempt facility listed in this section shall fully comply with any other applicable requirements of the Municipal Code to the extent not specially exempted in this section, including but not limited to the California Building Code, California Electrical Code, California Plumbing Code, California Mechanical Code, and California Fire Code.

1.

Direct broadcast satellite (DBS) antennas and multipoint distribution services (MDS) antennas measuring one meter or less in diameter (or diagonal measurement);

2.

Television broadcast system (TVBS) antennas provided: (1) the antenna is located entirely on and/or above the subject property; and (2) no portion of any ground-mounted antenna is within a required front setback for the main building, in front of the main building, within a required side setback of a corner lot, or adjacent to a street. All TVBS antennas greater than three feet in height shall require site plan and architectural review and building permits in compliance with the Municipal Code for review of placement to ensure that maximum safety is maintained;

3.

Satellite earth station (SES) antennas measuring two meters or less in diameter (or diagonal measurement) located on a property within any commercial office or public zone, provided that: (1) the antenna is located entirely on and/or above the subject property; and (2) no portion of any ground-mounted antenna is within a required front setback for the main building, in front of the main building, within a required side setback of a corner lot, or adjacent to a street. All SES antennas measuring more than one meter in diameter shall require site plan and architectural review and building permits in compliance with the Municipal Code for review of placement to ensure that maximum safety is maintained;

4.

Antennas and antenna structures constructed by or for Federal Communications Commission (FCC)-licensed amateur radio operators shall require a conditional use permit in compliance with section 16-52.040 (conditional use permits), site plan and architectural review if required under subsection 16-52.020.B. (approval required), and shall be subject to provisions of section 16-42.050 (amateur radio antennas), but shall not be subject to review under the Town of Tiburon Wireless Communication Facilities Standards;

5.

A proposed facility shall be exempt from the provisions of this section if and to the extent that rules and regulations of the FCC or the provisions of a permit issued by the California Public Utilities Commission (CPUC) specifically provide that the facility is exempt from town regulation.

6.

An antenna owned and operated by a public agency exclusively for public safety purposes, provided that it meets the following criteria:

a.

The antenna shall be located in the public/quasi-public zone.

b.

The wattage does not exceed two hundred watts at full power.

c.

The antenna is located on a pre-existing structure.

d.

The antenna (not including its pre-existing support structure) shall be a whip-style antenna and shall not exceed twenty-five feet in height.

e.

The proposed wireless communication facility has a valid FCC license on file with the town.

f.

An electrical permit for the installation shall be secured from the Tiburon Building Division.

g.

The structural attachment/anchoring method for the antenna shall be approved to the written satisfaction of the Tiburon Building Division.

h.

Compliance with OET Bulletin 65, or any successor document thereto, shall be demonstrated by a qualified radio frequency engineer.

(Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010; Ord. No. 533 N.S., § 2, 10-19-2011; Ord. No. 564 N.S., §§ (M), (N), 4-6-2016)

(a)

Wireless communication facilities governed by section 6409(a) of the Middle Class Tax Relief and Jobs Creation Act of 2012 ("Tax Act"). An applicant for a facility governed by section 6409(a) of the Tax Act must file an administrative WCF permit application for review and ministerial decision by the director. A final decision shall be rendered within sixty days of the filing of the application, unless tolled pursuant to the Tax Act. The decision of the director may be appealed within five calendar days to the planning commission, whose decision shall be final. If any additional permit is necessary before construction can begin, the relevant review and decision may be concurrent with the process and time line under this subsection, including any building permit application compliance with generally applicable building, structural, electrical, and safety codes or with other laws codifying objective standards reasonably related to health and safety.

(b)

Wireless communication co-location facilities not governed by section 6409(a) of the Middle Class Tax Relief and Jobs Creation Act of 2012. An applicant for a co-location facility not governed by section 6409(a) of the Tax Act may file a formal written request for waiver of the requirements for a conditional use permit with the director. It is the responsibility of the applicant to establish evidence in support of the waiver criteria required by this section. The director may waive the requirements for a conditional use permit and instead require a site plan and architectural review permit only for co-locations that meet the following criteria:

(1)

Co-location. The proposed facility or equipment is co-located on or adjoining an existing WCF;

(2)

Preferred location. The proposed facility is located on a property developed predominantly with commercial land uses;

(3)

Stealth design. The proposed WCF is designed or located in such a way that the facility is not readily recognizable as wireless communications equipment to an average person;

(4)

Prior approval and compliance. The existing WCF was subject to conditional use permit approval and complies with the town's policies and regulations; and

(5)

Existing environmental compliance. The existing WCF has a certified environmental impact report or adopted negative declaration or mitigated negative declaration, and the existing facility has incorporated the required mitigation measures. The new equipment or structures do not constitute a substantial change in the project or new information as outlined in Public Resources Code section 21166.

Applications processed pursuant to this subsection (b) shall be acted upon within ninety days of submittal of a complete application. Appeals of site plan and architectural review applications shall be in accordance with procedures set forth in section 16-66 (Appeals).

(c)

All Other Facilities. Wireless communication facilities that do not fall under subsections (a) or (b) must go through the following process:

(1)

Public notice of application filing.

a.

Within fifteen days after the filing of a conditional use permit application for a WCF with the Town of Tiburon, the town shall give written notice of such filing to all property owners within a six-hundred-foot radius of the proposed facility, to a newspaper of general circulation within the Town of Tiburon, and to the presidents or their designees for receipt of notices of each of the affected homeowners associations as determined by the director.

b.

Notice of the filing of the application shall also be posted by the planning division on the town's web site and on the public notice bulletin board outside town hall within fifteen days of the date of the filing of the application, and such notice shall remain in such location for a period of at least thirty days thereafter.

c.

For applications on land owned by a public agency other than the Town of Tiburon, written notice and a copy of the Town of Tiburon's WCF regulations shall be provided to the public agency within fifteen days of filing of the application.

(2)

Review and approval.

a.

Any person who proposes to install or operate a WCF pursuant to this subsection (c) shall first obtain approval of a conditional use permit in compliance with section 16-52.040 (conditional use permit), unless the facility is exempt from securing such permit under section 16-42.030 (applicability). The review authority may approve a conditional use permit for a WCF only upon making the finding that the project is consistent with this section and is in substantial compliance with applicable requirements of the most current Tiburon Wireless Communication Facilities Standards adopted by resolution of the town council.

b.

Any person who proposes to install or operate a WCF shall first obtain site plan and architectural review approval in compliance with section 16-52.020 (site plan and architectural review), unless the facility is exempt from securing such permit under section 16-42.030 (applicability).

c.

Applications processed pursuant to this subsection (c) shall be acted upon within ninety days of filing for proposed co-locations not subject to subsection (b) and within one hundred fifty days of filing for a proposed new WCF. Conditional use permit and site plan and architectural review applications may be processed concurrently. Appeals of conditional use permit and/or site plan and architectural review applications shall be in accordance with procedures set forth in section 16-66 (Appeals).

(3)

Exceptions. The review authority may grant an exception to any requirement of division 16-42 or any mandatory standard contained within the wireless communication facilities standards upon making findings that: (1) strict compliance precludes the reasonable accommodation of the communication needs of the operator as set forth in federal and/or state rules and regulations; (2) there are no other feasible alternatives; and (3) either state or federal law requires the town to issue the exception or the exception will serve the public interest despite the conflict with the mandatory standards.

(d)

Length of conditional use permit approval—Mandatory review/renewal.

(1)

A conditional use permit issued for a WCF approved on or after January 1, 2007 shall be valid for an initial period of ten years after final approval, unless a shorter duration is approved on the bases of public safety reasons or substantial land use reasons. At least ninety days prior to expiration of the ten-year period approval, the permit holder shall file an application for review/renewal of the WCF permit. The permit holder shall be solely responsible for timely filing of, and for all costs associated with, the processing of applications for mandatory reviews/renewals.

(2)

A conditional use permit issued for a WCF approved prior to January 1, 2007 shall be subject to the specific conditions of the permit with respect to duration and periodic mandatory review/renewal. At least ninety days prior to expiration of the permit, the permit holder shall file an application for review/renewal of the WCF Permit. The review authority shall conduct a public hearing for the purposes of verifying continued compliance with the findings and conditions of approval under which the application was originally approved, as well as compliance with other applicable provisions in the Municipal Code. Permit review/renewals are required every five years, unless a longer time period is approved by the review authority, or another time period is set forth in the permit conditions. The permit holder shall be solely responsible for timely filing of, and for all costs associated with, the processing of applications for mandatory reviews/renewals.

(Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010; Ord. No. 558 N.S., § 2(A), 6-3-2015; Ord. No. 561 N.S., § 2(C)—(E), 9-2-2015)

A.

Amateur radio antennas and associated antenna structures shall be the minimum height and size necessary to reasonably accommodate the operator's communication needs, in accordance with FCC regulations as set forth in FCC order "PRB-1" and Section 97.15 of Title 47 of the Code of Federal Regulations, and in accordance with California Government Code Section 65850.3, or the respective successor sections thereto.

B.

No portion of any amateur radio antenna, associated support structure, or related equipment shall overhang a property line that is not part of the subject site at any time.

C.

Retractable monopoles may be required for amateur radio antenna structures over thirty feet in height that are in or within three hundred feet of any residential zone, as set forth in section 16-14.020 (zoning map and zones). At times when not in operation, the monopole may be required to be retracted to the lowest elevation possible in order to maintain a safe clearance above any nearby building, accessory structure, overhead utility, landscaping and/or any other site improvements.

D.

No amateur radio antenna or facility shall be sited or operated in such a manner that it poses, either by itself or in combination with other WCFs, a potential threat to the public health. To that end, no facility or combination of facilities shall produce at any time power densities in any inhabited area that exceed the FCC's maximum permissible exposure (MPE) limits for electric and magnetic field strength and power density for transmitters or any applicable more restrictive standard subsequently adopted by the town, county, state or federal government. Absolute compliance with FCC Office of Engineering Technology (OET) Bulletin 65 or any successor document thereto, is mandatory, and any violation shall be grounds for the town to immediately terminate any permit granted hereunder, or to order the immediate service termination of any noncomplying facility within the town.

(Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010)

To the extent allowed or required under applicable federal rules and regulations, the operator of a WCF shall correct interference problems experienced by any person or entity with respect to such person's or entity's equipment, including but not limited to television, radio, computer, and telephone reception or transmission, when such interference is caused by the WCF. If a federal agency with jurisdiction over such matters finds that a WCF is operating in violation of federal standards regarding interference, the operator shall bring the WCF into conformance with such standards within the conformance period established by the federal agency. In the event that the federal agency does not establish a conformance period, the operator shall bring the WCF into conformance within thirty days of notification by the federal agency. The operator shall provide the director with a copy of any notice of such violation issued by any federal agency within fifteen days of receipt. Any violation of the provisions of this section shall be grounds for the town to terminate any permit granted hereunder and/or to order the immediate termination of service from the WCF. The operator shall be responsible for all labor and equipment costs for determining the source of the interference, all costs associated with eliminating the interference, (including but not limited to filtering, installing radio frequency cavities, installing directional antennas, powering down systems and engineering analysis), and all costs arising from third-party claims against the town attributable to such interference.

(Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010)

Antennas, support structures, and related equipment shall be removed within one hundred eighty days of the discontinuation of the use of a WCF and the site shall be restored to its previous condition. The service provider shall provide the director with a notice of intent to vacate the site a minimum of thirty calendar days prior to vacation. For facilities located on Town property, this requirement shall be included in the terms of the lease, license, or other such agreement. For facilities located on other sites, the property owner shall be responsible for removal of all antennas, structures, and related equipment within one hundred eighty days of the discontinuation of the use. A monetary security, in a form and amount acceptable to the town attorney, shall be required as a guarantee for WCF removal and site restoration.

(Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010)

(a)

Any WCF in existence prior to December 2, 2005 that is nonconforming to the provisions of this division 16-42 may continue to be used. Such nonconforming facilities may continue to be operated, repaired, and maintained but shall not be enlarged, expanded, relocated, or modified in any material manner, as determined within the reasonable discretion of the director, without conforming to provisions of division 16-42. Notification of nonmaterial modifications shall be provided within thirty days to the review authority by the director.

(b)

Exception. Facilities governed by section 6409(a) of the Middle Class Tax Relief and Jobs Creation Act of 2012 are not subject to the provisions of this section unless the proposed modification substantially changes the physical dimensions of the existing tower or base station, as those terms are defined in the act.

(Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010; Ord. No. 558 N.S., § 2(B), 6-3-2015)

The town shall maintain a map and list of the location of all WCFs within the town permitted under this section and shall make this information readily available to the public through a combination of methods such as availability at the department and posting on the town's website. The map and list shall refer interested parties to the department for additional information.

(Ord. No. 519 N.S., § 3, 3-17-2010)