HomeMy WebLinkAbout2017-12-04 City Council - Public Agenda-1097
December 8, 2017 5:30 PM City Council Regular Meeting Agenda Page1 MAYOR
Roland Velasco
COUNCIL MEMBERS
Dion Bracco
Daniel Harney
Paul Kloecker
Peter Leroe-Muñoz
Fred Tovar
Cat Tucker
CITY COUNCIL
AGENDA
CITY OF GILROY
CITY COUNCIL CHAMBERS, CITY HALL
7351 ROSANNA STREET
GILROY, CA 95020
REGULAR MEETING 6:00 P.M.
MONDAY, DECEMBER 4, 2017
CITY COUNCIL PACKET MATERIALS ARE AVAILABLE ONLINE AT www.cityofgilroy.org
AGENDA CLOSING TIME IS 5:00 P.M. THE TUESDAY PRIOR TO THE MEETING
COMMENTS BY THE PUBLIC WILL BE TAKEN ON AGENDA ITEMS BEFORE ACTION IS TAKEN BY
THE CITY COUNCIL. Persons wishing to address the Council are requested, but not required, to
complete a Speaker’s Card located at the entrances. Public testimony is subject to reasonable
regulations, including but not limited to time restrictions for each individual speaker. A minimum
of 12 copies of materials should be provided to the City Clerk for distribution to the Council and
Staff. Please limit your comments to 3 minutes.
In compliance with the Americans with Disabilities Act, the City will make reasonable
arrangements to ensure accessibility to this meeting. If you need special assistance to participate
in this meeting, please contact the City Clerk a minimum of 72 hours prior to the meeting at (408)
846-0204. A sound enhancement system is also available for use in the City Council Chambers.
If you challenge any planning or land use decision made at this meeting in court, you may be
limited to raising only those issues you or someone else raised at the public hearing held at this
meeting, or in written correspondence delivered to the City Council at, or prior to, the public
hearing. Please take notice that the time within which to seek judicial review of any final
administrative determination reached at this meeting is governed by Section 1094.6 of the
California Code of Civil Procedure.
A Closed Session may be called during this meeting pursuant to Government Code Section
54956.9 (d)(2) if a point has been reached where, in the opinion of the legislative body of the City
on the advice of its legal counsel, based on existing facts and circumsta nces, there is a
significant exposure to litigation against the City.
Materials related to an item on this agenda submitted to the City Council after distribution of the
agenda packet are available for public inspection with the agenda packet in the lobby of
Administration at City Hall, 7351 Rosanna Street during normal business hours. These materials
are also available with the agenda packet on the City website at www.cityofgilroy.org subject to
Staff’s ability to post the documents before the meeting. The City Council meets regularly on the
first and third Monday of each month, at 6:00 p.m. If a holiday, the meeting will be rescheduled to
the following Monday, with the exception of the single meeting in July wh ich lands on the first day
of the month not a holiday, Friday, Saturday or Sunday.
Remote Participant: Peter Leroe-Muñoz
Location: Reed Smith LLP, 101 2nd Street,
Suite 1800, San Francisco, CA. 94105
City Council Regular Meeting Agenda
12/4/2017 Page2
KNOW YOUR RIGHTS UNDER THE GILROY OPEN GOVERNMENT ORDINANCE
Government's duty is to serve the public, reaching its decisions in full view of the public.
Commissions, task forces, councils and other agencies of the City exist to conduct the
people's business. This ordinance assures that deliberations are conducted before the
people and that City operations are open to the people's review.
FOR MORE INFORMATION ON YOUR RIGHTS UNDER THE OPEN
GOVERNMENT ORDINANCE, TO RECEIVE A FREE COPY OF THE ORDINANCE
OR TO REPORT A VIOLATION OF THE ORDINANCE, CONTACT THE OPEN
GOVERNMENT COMMISSION STAFF AT (408) 846-
0204/shawna.freels@cityofgilroy.org.
I. OPENING
A. Call to Order
1. Pledge of Allegiance
2. Invocation
3. City Clerk's Report on Posting the Agenda
4. Roll Call
B. Orders of the Day
C. Employee Introductions
II. CEREMONIAL ITEMS
A. Proclamations, Awards, and Presentations
III. PRESENTATIONS TO THE COUNCIL
A. PUBLIC COMMENT BY MEMBERS OF THE PUBLIC ON ITEMS NOT ON THE
AGENDA BUT WITHIN THE SUBJECT MATTER JURISDICTION OF THE CITY
COUNCIL
(This portion of the meeting is reserved for persons desiring to address the Council on matters not on
this agenda. The law does not permit Council action or extended discussion of any item not on the
agenda except under special circumstances. If Council action is requested, the Council may place the
matter on a future agenda. Written material provided by public members for Council agenda item “public
comment by Members of the Public on items not on the agenda” will be limited to 10 pages in hard copy.
An unlimited amount of material may be provided electronically.)
A. Presentation by the Bicycle Pedestrian Commission on Downtown Bike
Racks and Proposed Changes to the Commission Roles and
Responsbilities
City Council Regular Meeting Agenda
12/4/2017 Page3 IV. REPORTS OF COUNCIL MEMBERS
Mayor Pro Tempore Bracco –Santa Clara Co. Library JPA, SCRWA Board, Street
Naming Committee, South County Youth Task Force Policy Team, URM Task Force
Council Member Tucker – Caltrain Citizen's Advisory Committee, Gilroy Welcome
Center, General Plan Advisory Committee, Santa Clara Valley Habitat Agency
Governing and Implementation Boards
Council Member Kloecker - Gilroy Youth Task Force, Historic Heritage Committee,
HSR Sub-Committee, SCRWA Board, South County United for Health, Street Naming
Committee
Council Member Harney – Gilroy Gardens Board, Santa Clara Co. Expressway Plan
Advisory Board, Santa Clara Valley Habitat Agency Governing and Implementation
Boards, Santa Clara Valley Clean Energy Authority, South County Joint Planning
Advisory Committee VTA Board (Alternate, VTA Policy Advisory Committee
Council Member Tovar – Gilroy Downtown Business Association, Gilroy Sister Cities
Association, SCRWA Board, Street Naming Committee, VTA Committee for Transit
Accessibility
Council Member Leroe-Muñoz - ABAG, Economic Development Corporation Board,
Cities Association of Santa Clara Co. Board, HSR Station Area Planning Advisory
Committee & HSR Sub-Committee, Santa Clara Valley Water Dist. Water Comm.,
Valley Regional Interoperability Authority (SVRIA)
Mayor Velasco – Economic Development Corporation Board, General Plan Advisory
Committee, VTA South County City Group, URM Task Force
V. FUTURE COUNCIL INITIATED AGENDA ITEMS
VI. CONSENT CALENDAR (ROLL CALL VOTE)
All matters listed under the Consent Calendar are considered by the City Council to be routine
and will be enacted by one motion. There will be no separate discussion of these items unless a
request is made by a member of the City Council or a member of the public. Any person desiring
to speak on any item on the consent calendar should ask to have that item removed from the
consent calendar prior to the time the Council votes to approve. If removed, the item will be
discussed in the order in which it appears.
A. Minutes of the November 20, 2017 Regular Meeting
B. Opening of a Recruitment Period for One Vacancy on the Youth
Commission
C. Adoption of an Ordinance of the City Council of the City of Gilroy
Amending Chapter 30, Section 30.2.20, Entitled “Definitions,” Chapter 30,
Section 30.45.30, Entitled “Legislative Findings and Statement of
Purpose—Prohibition of Marijuana Cultivation, Processing, Delivery and
Dispensary Uses", and Chapter 30, Section 30.45.40, Entitled “Prohibited
Activities” and Adding Chapter 30, Section 30.45.45, Entitled “Indoor
Cultivation for Personal Use” of the Gilroy City Code (introduced 11/20/17
with a 7-0 vote)
City Council Regular Meeting Agenda
12/4/2017 Page4 D. SB 165 Special Tax Accountability Report for Community Facilities District
2000-1 (Series 2002 and 2006 Bonds)
E. Claim of Mason Aaron (The City Administrator recommends a “yes” vote
under the Consent Calendar shall constitute the denial of the claim)
F. Claim of Maria Montes (The City Administrator recommends a “yes” vote
under the Consent Calendar shall constitute the denial of the claim)
G. Claim of Carol Blomquist (The City Administrator recommends a “yes” vote
under the Consent Calendar shall constitute the denial of the claim)
H. Amendment to the City Purchasing Policy Authorizing the Use of National
Joint Purchasing Alliance (NJPA) as a Purchasing Option
I. Approval to Extend Construction Management Consultant Pre-Approved
List for an Additional Year Through August 3, 2018
VII. BIDS AND PROPOSALS
A. Extension of City-Wide Landscaping Contract with BrightView Landscapes,
LLC
1. Staff Report: Girum Awoke, Public Works Director
2. Public Comment
3. Possible Action:
a) Approve a three month extension with BrightView Landscapes, LLC for city-
wide landscape services; and
b) Authorize the City Administrator to execute the contract amendment.
B. Ronan Channel Trail Project No. 15-PW-228 (West Branch Llagas Creek
Trail) Construction Bid Award
1. Staff Report: David Stubchaer, Operations Manager
2. Public Comment
3. Possible Action:
a) Approve the reallocation of $888,849 of existing local matching funds to the
Ronan Channel Trail Project No. 15-PW -228 from various grant funded trail
projects that were not awarded grants; and,
b) Authorize the City Administrator to execute a contract with Graniterock in the
amount of $1,814,859.42 for the construction of the Ronan Channel Trail
Project No. 15-PW -228 with a project contingency budget of 10% ($181,486),
and authorize the City Administrator to execute the contract and any related
change orders up to and including the contingency amount.
C. Award of Contract for Construction Management Services for Ronan
Channel Trail, Project No. 15-PW-228
City Council Regular Meeting Agenda
12/4/2017 Page5 1. Staff Report: David Stubchaer, Operations Manager
2. Public Comment
3. Possible Action:
Authorize the City Administrator to execute a contract with TRC Solutions, Inc.
(aka Caltrop) in the amount of $311.334.36 for construction management
services of the Ronan Channel Trail Project No. 15 -PW -228 with a project
contingency budget of 10% ($31,133), and authorize the City Administrator to
execute the contract and any related contract change orders up to and including
the contingency amount.
VIII. PUBLIC HEARINGS
A. Approval of the Issuance of the California Municipal Finance Authority
Multifamily Housing Revenue Bonds in an Aggregate Principal Amount not
to Exceed $25,000,000 for the Purpose of Financing or Refinancing the
Acquisition, Construction, Improvement and Equipping of Monterey
Gateway Apartments
1. Staff Report: Kristi Abrams, Community Development Director
2. Open Public Hearing
3. Close Public Hearing
4. Possible Action:
Adoption of a Resolution of the City Council of the City of Gilroy Approving the
Issuance of the California Municipal Finance Authority Multifamily Housing
Revenue Bonds in an Aggregate Principal Amount not to Exceed $25,000 ,000 for
the Purpose of Financing or Refinancing the Acquisition, Construction,
Improvement and Equipping of Monterey Gateway Apartments and Certain Other
Matters Relating Thereto.
B. Introduction of an Ordinance of the City Council of the City of Gilroy
Adopting Amendments to Article 30.35 of the Gilroy City Code Entitled
“Wireless Telecommunications, Antennas and Windmills” and Article 30.45
of the Gilroy City Code Entitled “General Regulations” Relating to the
Installation of Wireless Telecommunication Facilities
1. Staff Report: Stan Ketchum, Senior Planner
2. Open Public Hearing
3. Close Public Hearing
4. Possible Action:
Motion to read the ordinance by title only and waive further reading; and,
Motion to introduce an ordinance of the City Council of the City of Gilroy adopting
amendments to Article 30.35 of the Gilroy City Code Entitled “wireless
telecommunications, antennas and windmills” and Article 30.45 of the Gilroy City
Code entitled “General Regulations” relating to the installation of wireless
telecommunication facilities.
IX. UNFINISHED BUSINESS
City Council Regular Meeting Agenda
12/4/2017 Page6 A. Adoption of an Ordinance of the City Council of the City of Gilroy to Add to
the Gilroy City Code Chapter 30, Article 54 Pertaining to the Ministerial
Approval of Accessory Dwelling Units and Amending the Gilroy City Code,
Chapter 30, Sections 30.2.20, 30.4.10, 30.4.20, 30.5.40, 30.11.10, 30.31.21,
30.39.10, and 30.39.30 (introduced 11/20/17 with a 4-3 vote; Council
Members Tovar, Leroe-Munoz and Tucker voting no)
1. Staff Report: Susan O'Strander, Interim Development Center Manager
2. Public Comment
3. Possible Action:
Motion to adopt an Ordinance of the City Council of the City of Gilroy to Add to
the Gilroy City Code Chapter 30, Article 54 Pertaining to the Ministerial Approval
of Accessory Dwelling Units and Amending the Gilroy City Code, Chapter 30,
Sections 30.2.20, 30.4.10, 30.4.20, 30.5.40, 30.11.10, 30.31.21, 30.39.10, and
30.39.30.
X. INTRODUCTION OF NEW BUSINESS
A. Adoption of an Emergency Ordinance of the City Council of the City of
Gilroy Repealing and Amending Section 24.44 (b)(1) of Article III of Chapter
24 of the Gilroy City Code Pertaining to the Public, Educational, and
Government Access Channel Capacity, Support, Interconnection, and
Signal Carriage and Declaring the Emergency Thereof
1. Staff Report: Gabriel Gonzalez, City Administrator
2. Public Comment
3. Possible Action:
a) Motion to read the ordinance by title only, and waive further reading; and,
b) Motion to adopt an Emergency Ordinance of the City Council of the City of
Gilroy adding Section 24.44(b)(5) to Article III of Chapter 24 of the Gilroy City
Code pertaining to the reauthorization of the public, educational, and
government access channel support and declaring the emergency thereof.
B. Introduction of an Ordinance of the City Council of the City of Gilroy
Adding Section 24.44(b)(5) to Article III of Chapter 24 of the Gilroy City
Code Pertaining to the Reauthorization of the Public, Educational, and
Government Access Channel Support
1. Staff Report: Gabriel Gonzalez, City Administrator
2. Public Comment
3. Possible Action:
a) Motion to read the ordinance by title only, and waive further reading; and,
b) Motion to introduce an Ordinance of the City Council of the City of Gilroy
adding Section 24.44(b)(5) to Article III of Chapter 24 of the Gilroy City Code
pertaining to the reauthorization of the public, educational, and government
access channel support.
XI. CITY ADMINISTRATOR'S REPORTS
XII. CITY ATTORNEY'S REPORTS
City Council Regular Meeting Agenda
12/4/2017 Page7 XIII. CLOSED SESSION
A. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION; Paragraph
(1) of Subdivision (d) of 54956.9 and Gilroy City Code Section 17A.11(3)(a);
Case Name: Patricia Harrell v. City of Gilroy, et al.; Santa Clara Co. Superior
Court, Case No. 17VC314125, Filed August 7, 2017
ADJOURNMENT
MEETING DATES
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City Council Meeting Minutes
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I. OPENING
A. Call to Order
Mayor Velasco called the meeting to order at 6:04 p.m. and announced that Mayor
Pro Tempore Bracco was participating in the meeting remotely, by phone.
The pledge of allegiance was led by Council Member Tucker.
The invocation was given by Bishop Glen Saul of the Church of Jesus Christ of
Latter Day Saints.
City Clerk Freels announced that the agenda had been posted on November 15,
2017 at 10:20 a.m., and that the revised agenda had been posted on November
16, 2017 at 11:00 a.m.
Roll Call
Present: Mayor Pro Tempore Dion Bracco; Council Member Daniel Harney;
Council Member Paul Kloecker; Council Member Fred Tovar; Council
Member Cat Tucker; Mayor Roland Velasco
Absent/Excused: Council Member Peter Leroe-Muñoz
B. Orders of the Day
There were no agenda changes.
C. Employee Introductions
Public Works Director introduced newly hired Transportation/City Engineer Gary
Heap.
II. CEREMONIAL ITEMS
A. Proclamations, Awards, and Presentations
There were none.
III. PRESENTATIONS TO THE COUNCIL
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A. PUBLIC COMMENT BY MEMBERS OF THE PUBLIC ON ITEMS NOT ON
THE AGENDA BUT WITHIN THE SUBJECT MATTER JURISDICTION OF THE
CITY COUNCIL
Beverly Pierce was called to speak and expressed her concerns with the lack of
traffic control during the Veterans Day event explaining that the traffic in the area
caused a difficulty with hearing.
Public comment was then closed.
B. Physically Challenged Board of Appeals Annual Presentation to Council
The presentation was given by Chairperson Johanson.
Council Member Peter Leroe-Muñoz joined the meeting at 06:03 p.m.
IV. REPORTS OF COUNCIL MEMBERS
Council Member Harney spoke on the VTA fair increase effective January 1, 2018
and agreed with a earlier comment regarding the Veterans event. He concluded
by describing his recent visit to the Armory cold shelter.
Council Member Tovar reported on the Youth Alliance explaining that they were
contemplating the move of the organization from the City.
Council Member Leroe-Muñoz reported on cyber security training for elected
officials and first responders being held in San Luis Obispo.
Mayor Velasco spoke on the Veterans Day event describing the positive
community participation, and reported on his presentation to other Veterans at
Gilroy Gardens. He concluded by thanking the first responders who came honor
Gilroy native who was killed during WWII.
V. FUTURE COUNCIL INITIATED AGENDA ITEMS
Council Member Tovar requested that staff report on traffic enforcement during
the holidays.
VI. CONSENT CALENDAR
A. Minutes of the November 6, 2017 Regular Meeting
B. Minutes of the November 7, 2017 Special Meeting
C. Claim of Joshua Watterson (The City Administrator recommends a "yes"
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vote under the Consent Calendar shall constitute the denial of the claim)
Motion
Motion: to approve Consent Calendar Items A, B and C
Moved by Council Member Cat Tucker, seconded by Council Member Peter
Leroe-Muñoz.
Vote: Motion carried 7-0.
Yes: Mayor Pro Tempore Dion Bracco; Council Member Daniel
Harney; Council Member Paul Kloecker; Council Member Peter Leroe-
Muñoz; Council Member Fred Tovar; Council Member Cat Tucker; Mayor
Roland Velasco
VII. BIDS AND PROPOSALS
A. Traffic Signal and Street Light Maintenance Contract Extension
The staff report was presented by Engineer I Than and Public Works Director
Awoke.
There were no public comments.
Motion on Item VII.A.
Motion: Approve a one year contract extension for service with Cal-West
Lighting and Signal Maintenance, Inc., and direct staff within 90 days to
ensure that the solar lighting is working to design, and return with a cost
estimate to upgrade the units.
Moved by Council Member Daniel Harney, seconded by Council Member
Cat Tucker.
Vote: Motion carried 7-0.
Yes: Mayor Pro Tempore Dion Bracco; Council Member Daniel
Harney; Council Member Paul Kloecker; Council Member Peter Leroe-
Muñoz; Council Member Fred Tovar; Council Member Cat Tucker; Mayor
Roland Velasco
VIII. PUBLIC HEARINGS
A. Introduction of an Ordinance of the City Council of the City of Gilroy to
Add to the Gilroy City Code Chapter 30, Article 54 Pertaining to the
Ministerial Approval of Accessory Dwelling Units and Amending the
Gilroy City Code, Chapter 30, Sections 30.2.20, 30.4.10, 30.4.20, 30.5.40,
30.11.10, 30.31.21, 30.39.10, and 30.39.30 (Public hearing held 11/6/17
with a 4-3 vote; Council Members Tovar, Leroe-Muñoz and Tucker voting
no)
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The staff report was presented by Interim Building Center Manager O'Strander.
The public hearing was opened.
Rosalie Sanborn was called to speak asking if her personal property would be
affected.
The public hearing was then closed.
Motion on Item VIII.A.
Motion: to read the ordinance by title only, and waive further reading; and,
Moved by Council Member Cat Tucker, seconded by Council Member Daniel
Harney.
Vote: Motion carried 7-0.
Yes: Mayor Pro Tempore Dion Bracco; Council Member Daniel Harney;
Council Member Paul Kloecker; Council Member Peter Leroe-Muñoz;
Council Member Fred Tovar; Council Member Cat Tucker; Mayor Roland
Velasco
City Clerk Freels read the ordinance title.
Second Motion on Item VIII.A.
Motion: to introduce an Ordinance of the City Council of the City of Gilroy
to Add to the Gilroy City Code Chapter 30, Article 54 Pertaining to the
Ministerial Approval of Accessory Dwelling Units and Amending the Gilroy
City Code, Chapter 30, Sections 30.2.20, 30.4.10, 30.4.20, 30.5.40, 30.11.10,
30.31.21, 30.39.10, and 30.39.30
Moved by Mayor Roland Velasco, seconded by Council Member Paul
Kloecker.
Vote: Motion carried 4-3.
Yes: Mayor Pro Tempore Dion Bracco; Council Member Daniel
Harney; Council Member Paul Kloecker; Mayor Roland Velasco
No: Council Member Peter Leroe-Muñoz; Council Member Fred
Tovar; Council Member Cat Tucker
B. Adoption of an Emergency Ordinance of the City Council of the City of
Gilroy Amending Chapter 30, Section 30.2.20, Entitled "Definitions,"
Chapter 30, Section 30.45.30, Entitled "Legislative Findings and
Statement of Purpose-Prohibition of Marijuana Cultivation, Processing,
Delivery and Dispensary Uses, and Chapter 30, Section 30.45.40, Entitled
"Prohibited Activities" and Adding Chapter 30, Section 30.45.45, Entitled
"Indoor Cultivation for Personal Use" of the Gilroy City Code
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The staff report was presented by Development Center Manager O'Strander.
The public hearing was opened.
Eric Froelich was called to speak sharing his concerns with the Council regarding
the approval of the state proposition by the people and the Council’s decision not
to follow suit.
Susan Mister was called to speak and shared statistics from the state of Colorado
after the legalization of marijuana describing the impacts of second hand smoke
on children, and impacts on first responders. She then explained that the city
leaders were elected to protect the city from the legal impacts of legalizing
marijuana.
Ron Kirkish was called to speak and described the legal implications of legalizing
marijuana in the City as it was in conflict with the Federal law. He explained that
staff members that had allowed marijuana uses could be fined as could the
Council Members.
Mike Mister was called to speak and described the cross roads and vulnerability
of students at the junior high level explaining that officials set the example for
them and legalizing marijuana would negatively affect them.
Public comment was then closed.
Motion on Item VIII.B.
Motion: to read the ordinance by title only, and waive further reading; and,
Moved by Council Member Fred Tovar, seconded by Council Member Cat
Tucker.
Vote: Motion carried 7-0.
Yes: Mayor Pro Tempore Dion Bracco; Council Member Daniel
Harney; Council Member Paul Kloecker; Council Member Peter Leroe-
Muñoz; Council Member Fred Tovar; Council Member Cat Tucker; Mayor
Roland Velasco
City Clerk Freels read the ordinance title.
Second Motion on Item VIII.B.
Motion: to adopt Emergency Ordinance 2017-06 of the City Council of the
City of Gilroy Amending Chapter 30, Section 30.2.20, Entitled "Definitions,"
Chapter 30, Section 30.45.30, Entitled "Legislative Findings and Statement
of Purpose-Prohibition of Marijuana Cultivation, Processing, Delivery and
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Dispensary Uses, and Chapter 30, Section 30.45.40, Entitled "Prohibited
Activities" and Adding Chapter 30, Section 30.45.45, Entitled "Indoor
Cultivation for Personal Use" of the Gilroy City Code.
Moved by Council Member Cat Tucker, seconded by Council Member Fred
Tovar.
Vote: Motion carried 7-0.
Yes: Mayor Pro Tempore Dion Bracco; Council Member Daniel
Harney; Council Member Paul Kloecker; Council Member Peter Leroe-
Muñoz; Council Member Fred Tovar; Council Member Cat Tucker; Mayor
Roland Velasco
City Clerk Freels read the ordinance title.
C. Introduction of an Ordinance of the City Council of the City of Gilroy
Amending Chapter 30, Section 30.2.20, Entitled "Definitions," Chapter 30,
Section 30.45.30, Entitled "Legislative Findings and Statement of Purpose-
Prohibition of Marijuana Cultivation, Processing, Delivery and Dispensary
Uses, and Chapter 30, Section 30.45.40, Entitled "Prohibited Activities" and
Adding Chapter 30, Section 30.45.45, Entitled "Indoor Cultivation for
Personal Use" of the Gilroy City Code (Z 17-07)
The public hearing was opened; there being no comments it was then closed.
Motion on Item VIII.C.
Motion: to read the ordinance by title only, and waive further reading; and,
Moved by Council Member Cat Tucker, seconded by Council Member Fred
Tovar.
Vote: Motion carried 7-0.
Yes: Mayor Pro Tempore Dion Bracco; Council Member Daniel
Harney; Council Member Paul Kloecker; Council Member Peter Leroe-
Muñoz; Council Member Fred Tovar; Council Member Cat Tucker; Mayor
Roland Velasco
City Clerk Freels read the ordinance title.
Second Motion on Item VIII.C.
Motion: to introduce an Ordinance of the City Council of the City of Gilroy
Amending Chapter 30, Section 30.2.20, Entitled "Definitions," Chapter 30,
Section 30.45.30, Entitled "Legislative Findings and Statement of Purpose-
Prohibition of Marijuana Cultivation, Processing, Delivery and Dispensary
Uses, and Chapter 30, Section 30.45.40, Entitled "Prohibited Activities" and
Adding Chapter 30, Section 30.45.45, Entitled "Indoor Cultivation for
Personal Use" of the Gilroy City Code.
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Moved by Council Member Cat Tucker, seconded by Council Member Fred
Tovar.
Vote: Motion carried 7-0.
Yes: Mayor Pro Tempore Dion Bracco; Council Member Daniel
Harney; Council Member Paul Kloecker; Council Member Peter Leroe-
Muñoz; Council Member Fred Tovar; Council Member Cat Tucker; Mayor
Roland Velasco
IX. UNFINISHED BUSINESS
There was none.
X. INTRODUCTION OF NEW BUSINESS
A. Update on the South County Youth Task Force
The staff report was presented by Police Cheif Smithee and Captain Svardal.
B. Fiscal Year 2018 First Quarter Financial Report
The staff report was presented by Finance Manager Forbis.
There were no public comments.
Mayor Pro Tempore Dion Bracco left the meeting at 07:45 p.m.
C. Strategic Plan Quarterly Update
The staff report was presented by City Administrator Gonzalez.
There were no public comments.
XI. CITY ADMINISTRATOR’S REPORTS
A. Presentation on the "Your Voice" Community Engagement Platform
The staff report was introduced by City Administrator Gonzalez and presented by
Public Information Officer Bedell.
City Administrator Gonzalez then spoke on the emergency work on 6th street by
the railroad explaining that the street is now open. He then spoke on addressing
the closure of 6th street during the Veterans celebration explaining that the
organization traditionally requested a special event permit, but hadn't this year.
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He concluded by announcing that city hall would be closed Thursday and Friday
for the Thanksgiving holiday.
XII. CITY ATTORNEY’S REPORTS
There was no report.
ADJOURNMENT at 9:10 p.m.
/s/ Shawna Freels, MMC
City Clerk
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City of Gilroy
STAFF REPORT
Agenda Item Title: Opening of a Recruitment Period for One Vacancy on the Youth
Commission
Meeting Date: December 4, 2017
From: Gabriel Gonzalez, City Administrator
Department: City Clerk
Submitted By: Shawna Freels
Prepared By: Shawna Freels
Strategic Plan Goals
☐ Financially Sustainable
and High Performing
☐ Livable Community ☐ Grow the Economy
☐ Upgrade Infrastructure ☐ Vibrant Downtown
RECOMMENDATION
Open a four week recruitment period for one open seat on the Youth Commission.
BACKGROUND
The City has received a resignation from a seated member of the Youth Commission for
a seat with a term ending 9/30/2018. Eight of the prior applicants who applied in the
summer are interested in the open seat.
CONCLUSION
Staff recommends opening a four week recruitment period until January 2, 2018 for
other potential applicants, and will schedule Council interviews at the January 8, 2018
Council meeting.
PUBLIC OUTREACH
Recruitment material will be distributed through all City social media outlets, on the City
website and will be sent to the Gilroy Unified School District Public Information Officer.
6.B
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City of Gilroy
STAFF REPORT
Agenda Item Title: Adoption of an Ordinance of the City Council of the City of Gilroy
Amending Chapter 30, Section 30.2.20, Entitled “Definitions,”
Chapter 30, Section 30.45.30, Entitled “Legislative Findings and
Statement of Purpose—Prohibition of Marijuana Cultivation,
Processing, Delivery and Dispensary Uses", and Chapter 30,
Section 30.45.40, Entitled “Prohibited Activities” and Adding
Chapter 30, Section 30.45.45, Entitled “Indoor Cultivation for
Personal Use” of the Gilroy City Code (introduced 11/20/17 with a
7-0 vote)
Meeting Date: December 4, 2017
From: Gabriel Gonzalez, City Administrator
Department: Community Development Department
Submitted By: Kristi Abrams
Prepared By: Susan O'Strander
Strategic Plan Goals
☐ Financially Sustainable
and High Performing
Livable Community ☐ Grow the Economy
☐ Upgrade Infrastructure ☐ Vibrant Downtown
RECOMMENDATION
Motion to adopt an Ordinance of the City Council of the City of Gilroy Amending Chapter
30, Section 30.2.20, Entitled “Definitions,” Chapter 30, Section 30.45.30, Entitled
“Legislative Findings and Statement of Purpose—Prohibition of Marijuana Cultivation,
Processing, Delivery and Dispensary Uses”, and Chapter 30, Section 30.45.40, Entitled
“Prohibited Activities” and Adding Chapter 30, Section 30.45.45, Entitled “Indoor
Cultivation for Personal Use” of the Gilroy City Code.
BACKGROUND
On November 20, 2017, the City Council voted 7 - 0 to introduce an ordinance
amending Chapter 30, Sections 30.2.20 (“Definitions”), 30.45.30 (“Legislative Findings
and Statement of Purpose”), 30.45.40 (“Prohibited Activities”), and addin g section
6.C
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30.45.45 entitled “Indoor Cultivation for Personal Use” of the Gilroy City Code. The
amendment maintains the status quo on the City’s existing prohibition on commercial
activity relating to marijuana. In addition, the amendment clarifies the applicability of the
prohibition to recreational marijuana uses, consistent with Proposition 64, also referred
to as the Adult Use of Marijuana Act (AUMA).
Attachments:
1. Marijuana Ord
6.C
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ORDINANCE NO. 2017- XX
4841-3072-6729v3
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ORDINANCE NO. 2017- XX
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
GILROY AMENDING CHAPTER 30, SECTION 30.2.20, ENTITLED
“DEFINITIONS”, CHAPTER 30, SECTION 30.45.30, ENTITLED
“LEGISLATIVE FINDINGS AND STATEMENT OF PURPOSE—
PROHIBITION OF MARIJUANA CULTIVATION, PROCESSING,
DELIVERY AND DISPENSARY USES” AND CHAPTER 30, SECTION
30.45.40, ENTITLED “PROHIBITED ACTIVITIES” AND ADDING
CHAPTER 30, SECTION 30.45.45, ENTITLED “INDOOR
CULTIVATION FOR PERSONAL USE” OF THE GILROY CITY
CODE
WHEREAS, the Control, Regulate and Tax Adult Use of Marijuana Act (“the AUMA”)
was approved by California voters on November 8, 2016; and
WHEREAS, the AUMA legalizes under state law certain possession, use, and cultivation
of non-medical marijuana for those who are 21 years of age or older and authorizes a
comprehensive state system to regulate commercial marijuana activity; and
WHEREAS, under the AUMA, cities may adopt and enforce local ordinances, including
zoning and land use requirements, to regulate marijuana businesses or to completely prohibit the
establishment or operation of such businesses within the City's jurisdiction, and the state will not
approve a state license for a business that violates local ordinances; and
WHEREAS, effective January 1, 2016, 3 bills (AB 266, AB 243, and SB 643),
collectively known as the Medical Cannabis Regulation and Safety Act (“MCRSA”), govern
cultivation, processing, transporting, testing, and distribution of medical marijuana to qualified
patients; and
WHEREAS, under the Federal Controlled Substances Act, 21 U.S.C. § 801 et seq., the
use, possession, and cultivation of marijuana for both medical and recreational uses are currently
unlawful and subject to federal prosecution; and
WHEREAS, while marijuana cultivation and all commercial medical marijuana uses are
prohibited under the City's current zoning regulations, the Gilroy City Code does not currently
expressly regulate the sale, cultivation and delivery of non-medical marijuana within its
jurisdiction; and
6.C.a
Packet Pg. 23 Attachment: Marijuana Ord (1485 : Personal Cultivation and Use of Marijuana)
ORDINANCE NO. 2017- XX
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WHEREAS, current City regulations prohibit cultivation for personal use of marijuana
in the City of Gilroy; and
WHEREAS, marijuana laws do not confer a land use right and the MCRSA requires the
city to prohibit cultivation uses, either expressly or otherwise under the principles of permissive
zoning, or the State will become the licensing authority. The MCRSA also requires delivery
services to be expressly prohibited by local ordinance, if the City desires to prohibit delivery.
Similarly, the AUMA gives cities explicit authority to adopt and enforce local ordinances,
including zoning and land use requirements, to regulate marijuana businesses or to completely
prohibit the establishment or operation of such businesses within the city's jurisdiction. No State
license will be approved for a business that violates local ordinances; and
WHEREAS, the City Council desires to update the marijuana regulations in the
Gilroy City Code to maintain the City’s existing prohibition on commercial marijuana activities,
and expressly make clear, in light of passage of the AUMA, that all such uses (whether medical
or recreational) continue to be prohibited in all zones throughout the City, and to preserve local
control over such uses,
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF GILROY DOES
HEREBY ORDAIN AS FOLLOWS:
SECTION I
Gilroy City Code, Chapter 30, ZONING ORDINANCE, Section 30.2.20, “Definitions” is
hereby amended to add the following definitions:
“Commercial marijuana activity” has the same meaning as “commercial cannabis activity” as
provided in California Business & Professions Code § 26001(k) as may be amended, and means
and includes cultivation, possession, manufacture, distribution, processing, storing, laboratory
testing, packaging, labeling, transportation, delivery or sale of marijuana or marijuana products.
“Commercial marijuana activity” also includes the activities of any business or nonprofit
licensees by the state or other government entity under chapter 3.5 of Division 8 or Division 10
of the Business and Professions Code.
“Marijuana delivery” has the same meaning as “Delivery” as provided in California Business &
Professions Code § 26001(p) as may be amended, and includes the commercial transfer of
marijuana or marijuana products to a customer. Marijuana delivery also includes the use by a
retailer of any technology platform, whether owned or controlled by the retailer or independently
licensed, that enables customers to arrange for or facilitate the commercial transfer by a licensed
retailer of marijuana or marijuana products.
6.C.a
Packet Pg. 24 Attachment: Marijuana Ord (1485 : Personal Cultivation and Use of Marijuana)
ORDINANCE NO. 2017- XX
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RNOSKY\04706002
SECTION II
Gilroy City Code, Chapter 30, ZONING ORDINANCE, Section 30.2.20, “Definitions” is
hereby amended to modify the definition of “marijuana dispensary” or “marijuana dispensaries”
to read as follows:
“Marijuana dispensary” or “marijuana dispensaries” means any business, office, store, facility,
location, retail or wholesale component of any establishment, cooperative or collective that
delivers (as delivery is defined in Business and Professions Code Section 26001(p) or any
successor statute thereto) whether mobile or otherwise, dispenses, distributes, exchanges,
transmits, transports, sells or provides marijuana to any person for any reason, including
members of any medical marijuana cooperative or collective consistent with the August 2008
Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use, as may be
amended from time to time, that was issued by the office of the Attorney General for the State of
California or subject to the provisions of the California Health and Safety Code Section 11362.5
(Compassionate Use Act of 1996) or California Health and Safety Code Sections 11362.7 to
11362.83 (Medical Marijuana Program Act), or otherwise engages in any commercial marijuana
activity.
SECTION III
Gilroy City Code, Chapter 30, ZONING ORDINANCE, Section 30.45.30, “Legislative
findings and statement of purpose—Prohibition of marijuana cultivation, processing, delivery
and dispensary uses.” is hereby amended to read as follows:
30.45.30 Legislative findings and statement of purpose—Prohibition of marijuana
cultivation, processing, delivery and dispensary uses.
(a) The city council finds that the prohibitions on marijuana cultivation (except as otherwise
permitted herein), marijuana processing, marijuana delivery and marijuana dispensaries are
necessary for the preservation and protection of the public health, safety, and welfare for the city
and its community. The city council’s prohibition of such activities is within the authority
conferred upon the city council in its charter and state law.
(b) Effective January 1, 2016, three bills (AB 266, AB 243, and SB 643), collectively known
as the Medical Cannabis Regulation and Safety Act (“MCRSA”), govern cultivation, processing,
transporting, testing, and distribution of medical marijuana to qualified patients, and contain
statutory provisions that
6.C.a
Packet Pg. 25 Attachment: Marijuana Ord (1485 : Personal Cultivation and Use of Marijuana)
ORDINANCE NO. 2017- XX
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(1) Allow local governments to enact ordinances expressing their intent to prohibit
the cultivation of marijuana and their intent not to administer a conditional permit program for
the cultivation of marijuana;
(2) Expressly provide that the MCRSA does not supersede or limit local authority for
local law enforcement activity, enforcement of local ordinance, or enforcement of local permit or
licensing requirements regarding marijuana;
(3) Expressly provide that the MCRSA does not limit the authority or remedies of a
local government under any provision of law regarding marijuana, including but not limited to a
local government’s right to make and enforce within its limits all police regulations not in
conflict with general laws;
(4) Require a local government that wishes to prevent marijuana delivery activity
from operating within the local government’s boundaries to enact an ordinance affirmatively
banning such delivery activity.
(c) On November 8, 2016, the California voters passed Proposition 64 (referred to as “The
Adult Use of Marijuana Act” (“AUMA”)). Effective November 9, 2016, the AUMA legalized
use and possession of nonmedical marijuana by adults, and directs the creation of a state
regulatory system for the sale, cultivation and processing of marijuana and marijuana products.
Under the AUMA, cities may adopt and enforce local ordinances, including zoning and land use
requirements, to regulate marijuana businesses or to completely prohibit the establishment or
operation of such businesses within the City’s jurisdiction. The state will not approve a state
license for a business that violates local ordinances.
(d) The city council finds that this chapter: (1) expresses its intent to prohibit the cultivation
(except as otherwise permitted herein), delivery, and distribution of marijuana in the city and to
not administer a permit program for the cultivation of marijuana in the city; (2) exercises its
local authority to enact and enforce local regulations and ordinances, including those regarding
the permitting, licensing, or other entitlement of the activities prohibited by this chapter ; (3)
exercises its police power to enact and enforce regulations for the public benefit, safety, and
welfare of the city and its community; and (4) expressly prohibits the delivery of marijuana in
the city.
SECTION IV
Gilroy City Code, Chapter 30, ZONING ORDINANCE, Section 30.45.40, “Prohibited
Activities ” is hereby amended to read as follows:
6.C.a
Packet Pg. 26 Attachment: Marijuana Ord (1485 : Personal Cultivation and Use of Marijuana)
ORDINANCE NO. 2017- XX
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30.45.40 Prohibited activities.
(a) Except as otherwise permitted herein, marijuana cultivation, marijuana processing,
marijuana delivery, and marijuana dispensaries are prohibited activities in the city, except where
the city is preempted by federal or state law from enacting a prohibition on any such activity. No
use permit, variance, building permit, or any other entitlement, license, or permit, whether
administrative or discretionary, shall be approved or issued for the activities of marijuana
cultivation, marijuana processing, marijuana delivery, or the establishment or operation of a
marijuana dispensary in the city, and no person shall otherwise establish or conduct such
activities in the city, except where the city is preempted by federal or state law from enacting a
prohibition on any such activity for which the use permit, variance, building permit, or any other
entitlement, license, or permit is sought.
(b) Commercial marijuana activities of all types are expressly prohibited in all zones and all
specific plan areas in the City of Gilroy. No person shall establish, operate, conduct or allow a
commercial marijuana activity anywhere within the City. This subsection is meant to prohibit all
activities for which a state license is required pursuant to the AUMA or the MCRSA, and the
City will not issue any permit, license, or other entitlement for any activity for which a state
license is required under the AUMA or the MCRSA.
SECTION V
Gilroy City Code, Chapter 30, ZONING ORDINANCE, Section 30.45.45, “Indoor
Cultivation for Personal Use.” is hereby added as follows:
30.45.45 Indoor Cultivation for Personal Use.
Indoor cultivation of six (6) or fewer live marijuana plants is permitted within a single private
residence or inside an accessory structure located on the grounds of a private residence, only to
the extent that it is in compliance with the limits and requirements established under California
Health and Safety Code Sections 11362.1, 11362.2, 11362.3, 11362.4 and 11362.45 and any
other applicable state laws. Cultivation outdoors upon the grounds of a private residence is
prohibited in accordance with California Health and Safety Code Section 11362.2(b)(3).
SECTION VI
If any section, subsection, subdivision, sentence, clause or phrase of this Ordinance is for
any reason held to be unconstitutional or otherwise void or invalid by any court of competent
jurisdiction, such decision shall not affect the validity of the remaining portions of this
Ordinance. The City Council hereby declares that it would have passed this Ordinance and each
6.C.a
Packet Pg. 27 Attachment: Marijuana Ord (1485 : Personal Cultivation and Use of Marijuana)
ORDINANCE NO. 2017- XX
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section, subsection, subdivision, sentence, clause or phrase thereof, irrespective of the fact that
any one or more sections, subsections, subdivisions, sentences, clauses or phrases be declared
unconstitutional or otherwise void or invalid.
SECTION VII
Pursuant to section 608 of the Charter of the City of Gilroy, this Ordinance shall be in full
force and effect thirty (30) days from and after the date it is adopted.
PASSED AND ADOPTED this 4th day of December, 2017 by the following roll call vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
APPROVED:
__________________________
Roland Velasco, Mayor
ATTEST:
_____________________________
Shawna Freels, City Clerk
6.C.a
Packet Pg. 28 Attachment: Marijuana Ord (1485 : Personal Cultivation and Use of Marijuana)
City of Gilroy
STAFF REPORT
Agenda Item Title: SB 165 Special Tax Accountability Report for Community Facilities
District 2000-1 (Series 2002 and 2006 Bonds)
Meeting Date: December 4, 2017
From: Gabriel Gonzalez, City Administrator
Department: Finance Department
Submitted By: Jimmy Forbis
Prepared By: Jimmy Forbis
Strategic Plan Goals
Financially Sustainable
and High Performing ☐ Livable Community ☐ Grow the Economy
☐ Upgrade Infrastructure ☐ Vibrant Downtown
RECOMMENDATION
Receive and file report.
EXECUTIVE SUMMARY
Senate Bill 165, filed with the Secretary of State on September 19, 2000, enacted the
Local Agency Special Tax and Bond Accountability Act (the “Act”). This Act requires that
any local special tax or local bond measure subject to voter approval contain a
statement indicating the specific purposes of the special tax, requires that the proceeds
of the special tax be applied to those purposes, requires the creation of an account into
which the proceeds shall be deposited, and requires an annual report containing
specified information concerning the use of the proceeds.
The Act applies to local bond measures adopted on or after January 1, 2001 in
accordance with Section 53410 of the California Government Code. The code provides
no ending reporting date, so although the improvement funds have been fully expended,
the reporting requirement still exists. This report concerns improvements to the
Highway 152/Highway 101 interchange which were funded through the formation of
CFD No. 2000-1 (Series 2002 and 2006).
6.D
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BACKGROUND
This report intends to comply with Section 53411 of the California Government Code
that states:
“The chief fiscal officer of the issuing local agency shall file a report with its governing
body no later than January 1, 2002, and at least once a year thereafter. The annual
report shall contain all of the following:
(a) The amount of funds collected and expended.
(b) The status of any project required or authorized to be funded as identified in
subdivision (a) of Section 53410.”
The requirements of the Act apply to the Improvement Funds for the following debt
issues:
City of Gilroy
Community Facilities District No. 2000-1 (Highway 152)
Special Tax Bonds Series 2002
City of Gilroy
Community Facilities District No. 2000-1 (Highway 152)
Special Tax Bonds Series 2006 (Improvement Area No. 1)
Purpose of Special Tax
The District was formed and Bonds were issued for the purpose of providing funding to
meet the City’s share of the costs of a project to widen and improve State Highway 152
from U.S. Highway 101 eastward through the CFD and to improve the Highway
152/Highway 101 interchange.
Collections & Expenditures
District
Date of
Issuance
Initial Amount
Deposited to
Improvement
Fund
6/30/2017
Balance
Expended
Amount
Project
Status
CFD No.
2000-1
(Highway 152)
Series 2002
12/18/2002 $5,500,000.00 Closed $5,500,000.00 Complete
6.D
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CFD No.
2000-1
(Highway 152)
Series 2006
9/12/2006 7,600,000.00 Closed 7,600,000.00 Complete
FISCAL IMPACT/FUNDING SOURCE
None
6.D
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City of Gilroy
STAFF REPORT
Agenda Item Title: Claim of Mason Aaron (The City Administrator recommends a “yes”
vote under the Consent Calendar shall constitute the denial of the
claim)
Meeting Date: December 4, 2017
From: Gabriel Gonzalez, City Administrator
Department: Human Resources Department
Submitted By: LeeAnn McPhillips
Prepared By: LeeAnn McPhillips
Strategic Plan Goals
☐ Financially Sustainable
and High Performing
☐ Livable Community ☐ Grow the Economy
☐ Upgrade Infrastructure ☐ Vibrant Downtown
RECOMMENDATION
Denial of the claim of Mason Aaron.
EXECUTIVE SUMMARY
Based on the recommendation from Municipal Pooling Authority (MPA) and/or legal
counsel, the following claim is submitted to the City Council for rejection at the
December 4, 2017 meeting:
Claim of Mason Aaron
Attachments:
1. Claim for Mason Aaron
6.E
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6.E.a
Packet Pg. 33 Attachment: Claim for Mason Aaron (1482 : Claim of Mason Aaron)
6.E.a
Packet Pg. 34 Attachment: Claim for Mason Aaron (1482 : Claim of Mason Aaron)
City of Gilroy
STAFF REPORT
Agenda Item Title: Claim of Maria Montes (The City Administrator recommends a “yes”
vote under the Consent Calendar shall constitute the denial of the
claim)
Meeting Date: December 4, 2017
From: Gabriel Gonzalez, City Administrator
Department: Human Resources Department
Submitted By: LeeAnn McPhillips
Prepared By: LeeAnn McPhillips
Strategic Plan Goals
☐ Financially Sustainable
and High Performing
☐ Livable Community ☐ Grow the Economy
☐ Upgrade Infrastructure ☐ Vibrant Downtown
RECOMMENDATION
Denial of the claim of Maria Montes.
EXECUTIVE SUMMARY
Based on the recommendation from Municipal Pooling Authority (MPA) and/or legal
counsel, the following claim is submitted to the City Council for rejection at the
December 4, 2017 meeting:
Claim of Maria Montes
Attachments:
1. Claim for Maria Montes
6.F
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6.F.a
Packet Pg. 36 Attachment: Claim for Maria Montes (1484 : Claim of Maria Montes)
6.F.a
Packet Pg. 37 Attachment: Claim for Maria Montes (1484 : Claim of Maria Montes)
City of Gilroy
STAFF REPORT
Agenda Item Title: Claim of Carol Blomquist (The City Administrator recommends a
“yes” vote under the Consent Calendar shall constitute the denial of
the claim)
Meeting Date: December 4, 2017
From: Gabriel Gonzalez, City Administrator
Department: Human Resources Department
Submitted By: LeeAnn McPhillips
Prepared By: LeeAnn McPhillips
Strategic Plan Goals
☐ Financially Sustainable
and High Performing
☐ Livable Community ☐ Grow the Economy
☐ Upgrade Infrastructure ☐ Vibrant Downtown
RECOMMENDATION
Denial of the claim of Carol Blomquist.
EXECUTIVE SUMMARY
Based on the recommendation from Municipal Pooling Authority (MPA) and/or legal
counsel, the following claim is submitted to the City Council for rejection at the
December 4, 2017 meeting:
Claim of Carol Blomquist
Attachments:
1. Claim for Carol Blomquist
6.G
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6.G.a
Packet Pg. 39 Attachment: Claim for Carol Blomquist (1488 : Claim of Carol Blomquist)
6.G.a
Packet Pg. 40 Attachment: Claim for Carol Blomquist (1488 : Claim of Carol Blomquist)
6.G.a
Packet Pg. 41 Attachment: Claim for Carol Blomquist (1488 : Claim of Carol Blomquist)
City of Gilroy
STAFF REPORT
Agenda Item Title: Amendment to the City Purchasing Policy Authorizing the Use of
National Joint Purchasing Alliance (NJPA) as a Purchasing Option
Meeting Date: December 4, 2017
From: Gabriel Gonzalez, City Administrator
Department: Finance Department
Submitted By: Jimmy Forbis
Prepared By: Jimmy Forbis
Strategic Plan Goals
Financially Sustainable
and High Performing ☐ Livable Community ☐ Grow the Economy
☐ Upgrade Infrastructure ☐ Vibrant Downtown
RECOMMENDATION
Adoption of a resolution of the City Council of the City of Gilroy updating the City's
purchasing policy to allow the use of National Joint Powers Alliance (NJPA) as an
option to make purchases and contract for services.
POLICY DISCUSSION
The policy discussion is whether or not the National Joint P owers Alliance may be used
as an option to make purchases and contract for services for any goods and services
available through the NJPA.
BACKGROUND
The City of Gilroy became members of the National J oint Powers Alliance (NJPA)
through Council action on January 4, 2016. The NJPA is a municipal national
contracting agency which establishes and provides nationally leveraged and
competitively solicited purchasing contracts under the guidance of the Unifo rm
Municipal Contracting Law. Joint Powers laws enable members to legally purchase
through NJPA’s awarded contracts.
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ANALYSIS
The attached resolution would clarify action taken by Council at its January 4, 2016
meeting when it passed an ordinance to become members of the National Joint Powers
Alliance (NJPA). The January 4, 2016 ordinance has been recently interpreted by the
City’s auditors to have only applied to the specific project (Miller Park Restroom) that
was awarded in the same staff report prepared for becoming members in the NJPA.
It was staff’s intent to be able to utilize this purchasing option and thus, if approved,
would make it clear that the NJPA may be used as a purchasing option. The use of the
NJPA for purchasing can be more efficient and result in lower prices because the NJPA
has already completed the competitive bid process and utilizes bulk purchasing. The
NJPA can only be used to make purchases and contract for services for any goods and
services available through the NJPA. This is very useful for such things as fleet sales
and high-cost equipment.
Purchases for services (and those included in service contracts) would still remain in the
local area if there is a qualified, competitive bidder. The NJPA tends to focus more on
supplies and equipment rather than services. The NJPA does not circumvent the
bidding process, but rather the NJPA does a bidding process on a wide scale that its
many members can benefit from. NJPA is commonly used by many California entities.
The attached resolution would modify the City of Gilroy Purchasing Policy to allow for
use of the NJPA to make purchases and contract for services for any goods and
services available through the NJPA. The use of the NJPA would be an alternative to
the City bidding for the purchase or service itself, but staff would not be required to use
the NJPA.
ALTERNATIVES
Council could choose to not approve the ordinance to modify the purchasing policy.
FISCAL IMPACT/FUNDING SOURCE
There is no direct fiscal impact by approving the attached ordinance. However, there is
potential to reduce City costs by making use of the NJPA when applicable.
CONCLUSION
Staff believes there are benefits, including potential efficiency and cost savings, to
allowing the use of the NJPA as an alt ernative to individual bidding, and recommends
approval of the attached resolution.
Attachments:
1. NJPA Purchasing Reso
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RESOLUTION NO. 2017-XX 4845-4823-4539v1
JH\04706083
RESOLUTION NO. 2017-XX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF GILROY
AUTHORIZING THE CITY ADMINISTRATOR TO ENTER INTO AN
AGREEMENT WITH THE NATIONAL JOINT POWERS ALLIANCE
WHEREAS, City staff was made aware of the existence of the National Joint Powers
Alliance (NJPA); and
WHEREAS, the NJPA creates national cooperative contract purchasing opportunities on
behalf of its members, which include all government and education agencies nationwide. These
cooperative contract purchasing opportunities present both time and money savings for their users by
consolidating numerous, individually prepared solicitation to one cooperative shared process; and
WHEREAS, California law allows cities to form joint powers agreements (JPAs) with out-of-
state public agencies if authorized by their legislative or other governing bodi es. Pursuant to
Government Code sections 6502, two or more public agencies by agreement may jointly exercise any
power common to the contracting parties, even though one or more of the contracting agencies may
be located outside the state; and
WHEREAS, Gilroy Charter Section 202, Contracts for Municipal Services, states that:
“The City shall have the power to enter into a contract with any other City or County within the State,
with a State department, or with any other public or private agency or firm for the performance of any
function of the City”; and
WHEREAS, pursuant to Government Code section 6500, a public agency is broadly defined
and includes an agency in another state; and
WHEREAS, at the January 1, 2016 meeting, the City Council approved the use of NJPA for
the Miller Park Restroom Replacement Project.
NOW, THEREFORE, BE IT RESOLVED that the City Council hereby authorizes City staff
to utilize the NJPA for all purchases that comply with the City’s bidding and purchase rules and
regulations.
PASSED AND ADOPTED this 4th day of December, 2017 by the following roll call vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
APPROVED:
________________________________
Roland Velasco, Mayor
ATTEST:
________________________________
Shawna Freels, City Clerk
6.H.a
Packet Pg. 44 Attachment: NJPA Purchasing Reso (1483 : Resolution Authorizing the National Joint Powers Alliance as a Purchasing Option)
City of Gilroy
STAFF REPORT
Agenda Item Title: Approval to Extend Construction Management Consultant Pre -
Approved List for an Additional Year Through August 3, 2018
Meeting Date: December 4, 2017
From: Gabriel Gonzalez, City Administrator
Department: Public Works Department
Submitted By: David Stubchaer
Prepared By: David Stubchaer
Strategic Plan Goals
☐ Financially Sustainable
and High Performing
☐ Livable Community ☐ Grow the Economy
Upgrade Infrastructure ☐ Vibrant Downtown
RECOMMENDATION
Extension of the pre-qualified list of construction management consultants for an
additional 1 year, until August 3, 2018.
BACKGROUND
The City’s Public Works Department requires the assistance of consultants to manage
construction projects, and to perform extensive project documentation required on
federally funded projects.
In 2014, a request for qualifications (RFQ) for construction management (CM) services
was emailed to approximately 60 engineering firms, as well as being advertised in th e
Gilroy Dispatch and the San Jose Mercury News, 14 statements of qualification were
submitted by the April 15th, 2014 deadline. The submittals were reviewed and ranked
based on the criteria listed in the RFQ. All of these firms provided well -presented
proposals with thoughtful responses to the RFQ. CALTROP Corporation, 4Leaf, Inc.,
MNS Engineers, Inc., Drake Haglan & Associates, Nova Partners, Inc. and
Consolidated CM were selected as the best qualified consultants for the construction
management services.
6.I
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Six firms were selected to give the City the opportunity to select a consultant that is best
suited to a particular job, and to provide the efficiency of having multiple consultants
working on multiple projects simultaneously. The prequalification p rocess streamlines
the consultant selection process for the various capital projects shown in the 6 -year
Capital Improvement Budget and provides for construction management services on an
as needed basis for a period of 3 years, with up to two one -year extensions. The pre-
qualified list of CM consultants approved by Council on August 4, 2014.
DISCUSSION
There is a continued need for CM services for the City’s capital projects. City staff feels
that the process to select the pre-qualified list of CM consultants is still valid and that the
list of CM consultants approved by Council will still meet the needs of the City. The
previous Council approval allows for up to two one-year extensions of the validity of the
list. Staff recommends that Council extend the list for an additional year. At a later
date, staff would likely recommend the second one-year extension of the prequalified
list.
FISCAL IMPACT/FUNDING SOURCE
There is no fiscal impact by extending the validity period for list of prequalified
construction management consultants.
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City of Gilroy
STAFF REPORT
Agenda Item Title: Extension of City-Wide Landscaping Contract with BrightView
Landscapes, LLC
Meeting Date: December 4, 2017
From: Gabriel Gonzalez, City Administrator
Department: Public Works Department
Submitted By: Girum Awoke
Prepared By: Girum Awoke
Bill Avila
Strategic Plan Goals
☐ Financially Sustainable
and High Performing
Livable Community ☐ Grow the Economy
☐ Upgrade Infrastructure ☐ Vibrant Downtown
RECOMMENDATION
a) Approve a three month extension with BrightView Landscapes, LLC for city-wide
landscape services; and
b) Authorize the City Administrator to execute the contract amendment.
BACKGROUND
The current City-wide landscape maintenance contract with BrightView Inc., formerly
Valley Crest Landscape Maintenance, has satisfactorily provided routine landscape
maintenance services for City parks, landscaped facilities, and landscaped roadways.
In mid- August 2017, the department of Public Works, Parks and Landscaping section,
issued a Request for Qualifications for the City-wide landscape maintenance contract
with the goal of awarding a contract before the end of the year.
Based on the qualifications submitted, Request for Proposal was issued to four
contractors. The RFP was issued on November 1, 2017 and proposals were received
on November 16, 2017. Contract selection delays related to the statement of
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qualifications submittal and review are extending the selection process for the new five-
year contract. It is in the City’s interest to extend contract services up to three months
with the existing City landscape contractor, BrightView, Inc. to prevent a disruptive end -
of-service change of contract period.
Following a successful Request For Qualifications (RFQ) process that resulted in four
short listed firms, a thorough Request For Proposals (RFP) vendor selection process is
currently in-progress and will be completed (and a new contract signed) in mid-February
2018, prior to the expiration of the requested three month contract extension .
DISCUSSION
BrightView Inc., has been providing the above mentioned services since 2012. Our
records indicate that Brightview has provided dependable and effective Landscaping
services meeting weekly targets and responding to issues and concerns pointed out by
City staff or residents. Parks staff have at various occasions reported that Brightview
addressed staffing and resource issues immediately and Parks staff ha ve been satisfied
with the services provided to date.
Upon request for a contract term extension, Brighview has agreed to provide the same
level of service for an additional three months without any increase in fees or other
charges. Staff has determined that it is in the City’s interest to approve this contract
term extension given Brightview’s track record as well as their commitment to honor
current prices for up to three additional months.
The following is a tentative schedule for the review, selection and award of the
landscaping contract:
Selection Process Actions Target Date
RFP Submittals Due To City November 16, 2017 @ 2pm
City Reference Maintenance Sites Review
And Headquarters Visits.
November 6, 7, 8, 2017
Selection Evaluation - Contractor Interviews Wednesday, November 29, 2017
Selection Committee Decision December 8, 2017
Staff Report To Council/Agenda On Contractor
Selection
December 15, 2017
Contractor To Submit Contractor Staff Names
For DOJ Submittal
December 20, 2017
Council Meeting Recommendation Report For
Approval By City Council
Monday, January 8, 2018
Contract Agreement And Insurance
Completion (Signed By Vendors)
January 9 – February 9, 2018
Issue Purchase Order February 16, 2018
City Wide Landscape Contract Services To March 1, 2018
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Begin (7 Days A Week)
FISCAL IMPACT/FUNDING SOURCE
The three month landscape maintenance extension proposal for the period of January,
February and March 2018, reflects the same fee rates ($61,170.68 per month) for site
service costs, totaling $183,512.04 for the three month extension period. This is the
same rate under the existing contract. There are sufficient funds in the Fiscal Year 2018
budget to extend this contract.
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City of Gilroy
STAFF REPORT
Agenda Item Title: Ronan Channel Trail Project No. 15-PW -228 (West Branch Llagas
Creek Trail) Construction Bid Award
Meeting Date: December 4, 2017
From: Gabriel Gonzalez, City Administrator
Department: Public Works Department
Submitted By: David Stubchaer
Prepared By: David Stubchaer
Strategic Plan Goals
☐ Financially Sustainable
and High Performing
☐ Livable Community ☐ Grow the Economy
Upgrade Infrastructure ☐ Vibrant Downtown
RECOMMENDATION
a) Approve the reallocation of $888,849 of existing local matching funds to the
Ronan Channel Trail Project No. 15-PW -228 from various grant funded trail
projects that were not awarded grants; and,
b) Authorize the City Administrator to execute a contract with Graniterock in the
amount of $1,814,859.42 for the construction of the Ronan Channel Trail Project
No. 15-PW -228 with a project contingency budget of 10% ($181,486), and
authorize the City Administrator to execute the contract and any related change
orders up to and including the contingency amount.
BACKGROUND
A design contract for the Ronan Channel Trail Project, Project No. 15 -PW -228, also
known as West Branch Llagas Creek Trail Project, as well as two other trail projects,
was approved by Council on October 3, 2011. This project has two grants for
construction funds: 1) a grant from Santa Clara Valley Water District in the amount of
approximately $178,076, and 2) a Federal grant in the amount of $1,034,000.
The project involves the construction of a multipurpose pathway along Ronan Channel
starting at Leavesley Road, south to a new bridge that will be built as part of the project
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across Miller Slough, and west to the intersection of Sixth Street and Rogers Lane. The
trail will also have connections to San Ysidro Park.
A Santa Clara Valley Water District permit and a Caltrans Encroachment Permit were
obtained for this project. The project was advertised in the Gilroy Dispatch and San
Jose Mercury News, as well as on eBidBoard (a web -based plan room). Plans and
specifications were sent to 19 plan rooms.
BID RESULTS
Project construction bids were opened on October 10, 2017, and 2 bids were received.
The 2 bids received were as follows, listed in order from lowest to highest bid amount:
RANK COMPANY NAME BID AMOUNT
1 Graniterock $1,814,859.42
2 McGuire and Hester $2,154,229.20
The lowest bidder was determined based on the amount of their respective base bid.
The lowest responsive bidder is Graniterock with a base bid of $1,814,859.42. The
Engineer’s Estimate for the base bid was $1,127,273. The bid results are discussed
further below.
The project construction cost of $1,996,345.42 includes the base bid amount
($1,814,859.42) plus a 10% contingency budget ($181,486). The contingency amount
is intended to account for unforeseen conditions or necessary field changes in the
scope of work as submitted to the Council for consideration. Council’s approval of the
contingency budget specifically authorizes the City Administrator to execute contract
change orders in amounts up to and including the contingency amount approved by
Council for this project.
ANALYSIS
The lowest bid for construction of this project was $687,586 above the engineer’s
estimate. The industry is currently seeing construction bids come in 10% - 15% above
the engineer’s estimate due to a high level of construction activity in the region.
However, the low bid was approximately 61% above the engineer’s estimate. Various
alternatives are discussed below in the Alternatives section of this report.
The current funds budgeted for construction of this project, including grant funds, is
$1,505,561 which is $888,849 less than needed, including a 10% contingency amount
of $216,492 for design support during construction, construction management, and
construction. Staff proposes using currently budgeted local matching funds for planned
trail projects that did not receive grant funds as follows:
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Local Match Funds
Currently Budgeted
Trail Project Name Amount Proposed to be
used for Ronan Trail
Remaining
Funds
$ 236,592 Lions Creek Trail Gap Closure $236,592 $0
$ 345,643 Hecker Pass Trail $345,643 $0
$ 98,919 Lions Creek Trail - Kern to Day $98,919 $0
$ 942,732 Sports Park Trail $207,695 $735,037
Total $888,849
Grant applications for the above trail projects were submitted, but grants for these trails
were not awarded.
ALTERNATIVES
Staff considered recommending rejecting all bids and going through a value engineering
process which may look at, for example, a different bridge type to try to lower the
construction costs. However, the cost to redesign the bridge and related other changes
may equal or exceed the cost savings. Additionally, environmental conditions for the
project limit the time of year for construction between March 15th and October 15th.
Redesign would likely push the construction of the project to March 15th, 2019 instead of
2018. This delay may cause both the Santa Clara Valley Water District grant and the
federal grant, a total of over $1.2M to expire.
The Santa Clara Valley Water District grant currently expires at the end of 2017, but will
go before their Board for an extension to the end of 2018 if approved. The federal grant
requires an invoice to be submitted every 6 months. The federal grant is currently in the
construction phase. There are no design funds remaining in the grant, and if no
construction is occurring, there will nothing for which to invoice.
Staff reached out to Caltrans and MTC to inquire about increasing the amount of grant
funds, but no additional funds were available.
Staff looked at reducing the scope of work of the project, but staff believes that a
truncated project would not meet the goals for which the grant funds were granted for
the project in the first place.
FISCAL IMPACT/FUNDING SOURCE
The source of the local matching funds recommend for use by this project is Facilities
Impact Fees. The use of these funds to make up the construction funding shortfall
would leave three of the four potential grant funded trail projects without currentl y
budgeted local matching funds, and the fourth project with less than the anticipated
level of required local matching funding. However, the matching funds were budgeted
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with the expectation of receiving grants for those projects, which are not forthcomi ng.
All four of those projects can be considered non-funded projects, and are not in the
current Capital Improvement Plan due to lack of funding.
CONCLUSION
In order to take advantage for the $1.2M in grant funding for this project, staff is
recommending that the City move forward with awarding the construction contract and
the construction management services contract.
PUBLIC OUTREACH
Residents adjacent to the project will be notified about the construction of the project.
This project will also be placed on the agenda of the Bike and Pedestrian Commission
and the Parks and Recreation Commission to let them know that construction of the
project is moving forward. Notices to the general public will also be posted on the City’s
website and social media.
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City of Gilroy
STAFF REPORT
Agenda Item Title: Award of Contract for Construction Management Services for
Ronan Channel Trail, Project No. 15-PW -228
Meeting Date: December 4, 2017
From: Gabriel Gonzalez, City Administrator
Department: Public Works Department
Submitted By: David Stubchaer
Prepared By: David Stubchaer
Strategic Plan Goals
☐ Financially Sustainable
and High Performing
☐ Livable Community ☐ Grow the Economy
Upgrade Infrastructure ☐ Vibrant Downtown
RECOMMENDATION
Authorize the City Administrator to execute a contract with TRC Solutions, Inc. (aka
Caltrop) in the amount of $311.334.36 for construction management services of the
Ronan Channel Trail Project No. 15-PW -228 with a project contingency budget of 10%
($31,133), and authorize the City Administrator to execute the contract and any related
contract change orders up to and including the contingency amount.
BACKGROUND
The Ronan Channel Trail Project, Project No. 15 -PW -228, also known as West Branch
Llagas Creek Trail Project is partially funded has two grants. The project involves the
construction of a multipurpose pathway along Ronan Channel starting at Leavesley
Road, south to a new bridge that will be built as part of the project across Miller Slough,
and west to the intersection of Sixth Street and Rogers Lane. The trail will also have
connections to San Ysidro Park.
DISCUSSION
To manage the construction of the project, and complete all the federal project
documentation for the project, a mini-RFP in conformance with federal regulations was
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sent to three construction management (CM) consultants which are on the City’s pre -
approved Construction Management Consultant list.
Three proposals were received, but one consultant withdrew. A three -person evaluation
committee made up of two City staff and a consultant evaluated the proposals based on
the criteria listed in the mini-RFP and selected CALTROP as the best qualified
consultant for this project. As per state law, professional services must be selected
based on qualifications as opposed to price. The cost proposal from CALTROP to
manage the construction of the project, including materials testing, is $311,334.36, or
approximately 17% of the construction bid. This amount is reasonable considering that
the project involves construction of a bridge and is a federally funded project which
requires extensive documentation.
FISCAL IMPACT/FUNDING SOURCE
The proposed funding source for this project is discussed in greater detail in the staff
report for award of the Construction Contract for this project (also on the December 4,
2017 Council agenda). In summary, the funding source for this project is grant funds in
the amount of approximately $1.2M, and approximately $2.394M in local facilities
impact funds. These funding sources would be used to cover the cost of the CM
services.
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City of Gilroy
STAFF REPORT
Agenda Item Title: Approval of the Issuance of the California Municipal Finance
Authority Multifamily Housing Revenue Bonds in an Aggregate
Principal Amount not to Exceed $25,000,000 for the Purpose of
Financing or Refinancing the Acquisition, Construction,
Improvement and Equipping of Monterey Gateway Apartments
Meeting Date: December 4, 2017
From: Gabriel Gonzalez, City Administrator
Department: Community Development Department
Submitted By: Kristi Abrams
Prepared By: Kristi Abrams
Jim Carney
Strategic Plan Goals
☐ Financially Sustainable
and High Performing
Livable Community ☐ Grow the Economy
☐ Upgrade Infrastructure ☐ Vibrant Downtown
RECOMMENDATION
Adoption of a Resolution of the City Council of the City of Gilroy Approving the Issuance
of the California Municipal Finance Authority Multifamily Housing Revenue Bonds in an
Aggregate Principal Amount not to Exceed $25,000,000 for the Purpose of Financing or
Refinancing the Acquisition, Construction, Improvement and Equipping of Monterey
Gateway Apartments and Certain Other Matters Relating Thereto.
EXECUTIVE SUMMARY
Danco Builders Northwest requested that the California Municipal Finance Authority
(CMFA) serve as the municipal issuer of the Bonds in an aggregate principal amount
not to exceed $25,000,000 of tax-exempt revenue bonds. The proceeds of the Bonds
will be used for the acquisition, construction, improvement and equipping of a 75 -unit
senior multifamily rental housing project (Project) to be located on the east side of
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Monterey Road across from Ervin Court (APN 841-14-011), Gilroy, California, generally
known as Monterey Gateway Apartments.
POLICY DISCUSSION
In order for all or a portion of the Bonds to qualify as tax-exempt bonds, the City of
Gilroy must conduct a public hearing (the “TEFRA Hearing”) providing for the members
of the community an opportunity to speak in favor of or against the use of tax-exempt
bonds for the financing of the Project. Prior to such Tax Equity and Fiscal Responsibility
Act (TEFRA) Hearing, reasonable notice must be provided to the members of the
community. Following the close of the TEFRA Hearing, an “applicable elected
representative” of the governmental unit hosting the project must provide its approval of
the issuance of the bonds for the financing of the project.
BACKGROUND
The City Council has been requested to conduct a public hearing pursuant to the federal
Tax Equity and Fiscal Responsibility Act or TEFRA. TEFRA requires that a public
hearing be held by the governing body of the jurisdiction in which a project to be
financed with tax-exempt financing is located, and that the governing body approve the
proposed Financing.
Gilroy Monterey LP proposes to obtain tax exempt financing in an amount not to exceed
$25,000,000 to finance the acquisition, construction, improvement and equipping of a
75-unit senior multifamily rental housing project to be located on the east side of
Monterey Road across from Ervin Court (APN 841-14-011), Gilroy, California, generally
known as Monterey Gateway Apartments.
The California Municipal Finance Authority (CMFA) is a joint powers authority formed to
assist local governments, non-profit organizations, and businesses with the issuance of
both taxable and tax-exempt debt.
ANALYSIS
Danco Builders Northwest requested that the City Council conduct the Public Hearing
and adopt a resolution authorizing the issuance of tax exempt bonds with a sense of
urgency due to proposals currently being considered by Congress that could jeopardize
future funding of such low-come multifamily housing developments. Tax-exempt
municipal bonds and the 4% Low Income Housing Tax Credit (LIHTC) program may no
longer be a viable affordable housing financing option as early as January 1, 2018,
depending on the provisions of the tax reform bills that may be adopted in December
2017. Should that funding be eliminated, the project proponents would need to secure
other financing for the project, or forego the Monterey Gateway affordable senior
housing development. The Monterey Gateway 75 unit multifamily project was approved
by resolution of the Gilroy Planning Commission on February 18, 2016.
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Additionally, approval of the issuance of bonds demonstrates the City is trying to meet,
as much as is possible, the Housing Element Goal H-4 Housing Opportunity for
Residents with Special Needs, specifically of the below policies and Implementation
Programs:
Policy H-4.1 The City shall encourage housing opportunities for special needs
groups, including; seniors; persons with disabilities; including development
disabilities; the homeless; large households; single female-headed households;
and farmworkers.
Policy H-4.2 The City shall encourage the development, rehabilitation, and
preservation of affordable and market-rate housing for seniors, particularly in
neighborhoods that ate accessible to public transit, commercial services, and
health and community facilities.
H-4.B. Development of Housing for Seniors The City shall consider areas for
new senior housing development, including residential care facilities, that are
convenient to public transit and within walking distance to shopping and
restaurants, and incorporate appropriate regulatory incentives, financial
incentives, and other policies that encourage appropriate regulatory incentives,
financial incentives, and other policies that encourage the development of
housing for seniors. The City shall continue to accept Senior only and Affordable
Senior Housing projects through the RDO Exemption program to encourage
development of these projects.
ALTERNATIVES
The City Council may vote to approve the resolution authoring the issuance of bonds by
the CMFA for the benefit of Gilroy Monterey LP (the “Borrower”) or a partnership
created by Danco Builders Northwest (the “Developer”). This action would be in support
of the Housing Element policies and implementation programs. Staff recommends
this action.
The City Council can choose not to approve the resolution authorizing the issuance of
the Bonds by the CMFA for the benefit of Gilroy Monterey LP (the “Borrower”) or a
partnership created by Danco Builders Northwest (the “Developer”). Should Council not
approve the resolution, the Project would need to secure alternative financing or not
proceed with development of the 75-unit senior multifamily rental housing project. This
action could negatively affect the next certification of the Housing Element. Staff does
not recommend this action.
FISCAL IMPACT/FUNDING SOURCE
The Bonds to be issued by the CMFA for the Project will be the sole res ponsibility of the
Borrower, and the City will have no financial, legal, and/or moral obligation, liability or
responsibility for the Project or the repayment of the Bonds for the financing of the
Project. All financing documents with respect to the issuan ce of the Bonds will contain
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clear disclaimers that the Bonds are not obligations of the City or the State of California,
but are to be paid for solely from funds provided by the Borrower.
The Board of Directors of the California Foundation for Stronger Co mmunities, a
California non-profit public benefit corporation (the “Foundation”), acts as the Board of
Directors for the CMFA. Through its conduit issuance activities, the CMFA shares a
portion of the issuance fees it receives with its member communities a nd donates a
portion of these issuance fees to the Foundation for the support of local charities. With
respect to the City of Gilroy, it is expected that a portion of the issuance fee attributable
to the City will be granted by the CMFA to the General Fund of the City. Such grant may
be used for any lawful purpose of the City.
CONCLUSION
In light of the foregoing, and in order to support affordable housing, staff recommends
that the City conduct the TEFRA Hearing and adopt the resolution in favor of the
issuance of the Bonds by the CMFA for the Monterey Gateway senior affordable
multifamily housing project.
PUBLIC OUTREACH
A Notice of Public Hearing of the Gilroy City Council to consider the approval of the
issuance of multifamily revenue bonds by the California Municipal Finance Authority
was published on November 20, 2017.
Attachments:
1. Resolution - Monterey Gateway TEFRA
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RESOLUTION NO. 2017-XX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF GILROY
APPROVING THE ISSUANCE OF THE CALIFORNIA MUNICIPAL
FINANCE AUTHORITY MULTIFAMILY HOUSING REVENUE BONDS
IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED
$25,000,000 FOR THE PURPOSE OF FINANCING OR REFINANCING
THE ACQUISITION, CONSTRUCTION, IMPROVEMENT AND
EQUIPPING OF MONTEREY GATEWAY APARTMENTS AND
CERTAIN OTHER MATTERS RELATING THERETO
WHEREAS, Gilroy Monterey LP (the “Borrower”) or a partnership created by Danco
Builders Northwest (the “Developer”), consisting at least of the Developer or a related person to
the Developer and one or more limited partners, has requested that the California Municipal
Finance Authority (the “Authority”) adopt a plan of financing providing for the issuance of one
or more series of revenue bonds issued from time to time, including bonds issued to refund such
revenue bonds in one or more series from time to time, in an aggregate principal amount not to
exceed $25,000,000 (the “Bonds”) for the acquisition, construction, improvement and equipping
of a 75-unit senior multifamily rental housing project to be located on the east side of Monterey
Road across from Ervin Court (APN 841-14-011), Gilroy, California, generally known as
Monterey Gateway Apartments (the “Project”) and operated by FPI Management; and
WHEREAS, pursuant to Section 147(f) of the Internal Revenue Code of 1986 (the
“Code”), the issuance of the Bonds by the Authority must be approved b y the City of Gilroy (the
“City”) because the Project is to be located within the territorial limits of the City; and
WHEREAS, the City Council of the City (the “City Council”) is the elected legislative
body of the City and is one of the “applicable elected representatives” required to approve the
issuance of the Bonds under Section 147(f) of the Code; and
WHEREAS, the Authority has requested that the City Council approve the issuance of
the Bonds by the Authority in order to satisfy the public approval requirement of Section 147(f)
of the Code and the requirements of Section 4 of the Joint Exercise of Powers Agreement
Relating to the California Municipal Finance Authority, dated as of January 1, 2004 (the
“Agreement”), among certain local agencies, including the City; and
WHEREAS, pursuant to Section 147(f) of the Code, the City Council has, following
notice duly given, held a public hearing regarding the issuance of the Bonds, and now desires to
approve the issuance of the Bonds by the Authority;
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Gilroy
as follows:
Section 1. The foregoing resolutions are true and correct.
Section 2. The City Council hereby approves the issuance of the Bonds by the Authority.
It is the purpose and intent of the City Council that this resolution constitute approval of the
issuance of the Bonds by the Authority, for the purposes of (a) Section 147(f) of the Code by the
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2
RESOLUTION NO. 2017-XX
applicable elected representative of the governmental unit having jurisdiction over the area in
which the Project is to be located, in accordance with said Section 147(f) and (b) Section 4 of the
Agreement.
Section 3. The issuance of the Bonds shall be subject to the approval of the Authority of
all financing documents relating thereto to which the Authority is a party. The City shall have no
responsibility or liability whatsoever with respect to the Bonds.
Section 4. The adoption of this Resolution shall not obligate the City or any department
thereof to (i) provide any financing to acquire or construct the Project or any refinancing of the
Project; (ii) approve any application or request for or take any other action in connection with
any planning approval, permit or other action necessary for the acquisition, construction,
rehabilitation, installation or operation of the Project; (iii) make any contribution or advance any
funds whatsoever to the Authority; or (iv) take any further action with respect to the Authority or
its membership therein.
Section 5. The officers of the City are hereby authorized and directed, jointly and
severally, to do any and all things and to execute and deliver any and all documents which they
deem necessary or advisable in order to carry out, give effect to and comply with the terms and
intent of this resolution and the financing transaction approved hereby.
Section 6. This resolution shall take effect immediately upon its adoption.
PASSED AND ADOPTED this __ day of _______, 2017 by the following roll call vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
APPROVED:
__________________________
Roland Velasco, Mayor
ATTEST:
__________________________
Shawna Freels, City Clerk
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City of Gilroy
STAFF REPORT
Agenda Item Title: Introduction of an Ordinance of the City Council of the City of Gilroy
Adopting Amendments to Article 30.35 of the Gilroy City Code
Entitled “Wireless Telecommunications, Antennas and Windmills”
and Article 30.45 of the Gilroy City Code Entitled “General
Regulations” Relating to the Installation of Wireless
Telecommunication Facilities
Meeting Date: December 4, 2017
From: Gabriel Gonzalez, City Administrator
Department: Planning Division
Submitted By: Kristi Abrams
Prepared By: Stan Ketchum
Strategic Plan Goals
☐ Financially Sustainable
and High Performing
☐ Livable Community ☐ Grow the Economy
☐ Upgrade Infrastructure ☐ Vibrant Downtown
RECOMMENDATION
a) Motion to read the ordinance by title only and waive further reading; and,
b) Motion to introduce an ordinance of the City Council of the City of Gilroy adopting
amendments to Article 30.35 of the Gilroy City Code Entitled “wireless
telecommunications, antennas and windmills” and Article 30.45 of the Gilroy City
Code entitled “General Regulations” relating to the installation of wireless
telecommunication facilities.
EXECUTIVE SUMMARY
The proposed text amendments would modify Section 30.35 Wireless
Telecommunications Facilities, Antennas and Windmills to bring the Zoning Ordinance
into conformance with federal and state legislation governing how local jurisdictions
regulate installation of wireless telecommunications facilities in public right -of-way and
on private property. The primary modifications of the ordinance would exempt certain
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wireless antenna networks (e.g. small cell and distributed area systems) from this Code
section, and would require companies proposing certain wireless antenna networks to
enter into master lease agreements. In addition, the amendment would eliminate
discretionary permit requirements for co-location facilities, and establish a ministerial
review process for such facilities.
The ordinance also includes various other minor revisions to ensure compliance with
new state and federal legal requirements. This ordinance addresses only sections
directly affected by the changes in state/federal laws and FCC regulations. The
Comprehensive Zoning Code Update, in progress, will undertake a more
comprehensive review of all aspects of the Zoning Ordinance.
POLICY DISCUSSION
The City Council is asked to revise Section 35 Wireless Telecommunications Facilities,
Antennas and Windmills to bring the Zoning Ordinance into conformance with federal
and state legislation governing how local jurisdictions regulate installation of wireless
telecommunications facilities in public right-of-way and on private property.
BACKGROUND
Since the mid-1990’s, both Congress and the Federal Communications Commission
(FCC) have established extensive laws and regulations that define the parameters by
which local governments are allowed to regulate installation of wireless
telecommunications facilities in both public right-of-way and on private property.
Formation of these laws has been driven by the wireless industry with the intent to
reduce and streamline the regulatory requirements and facilitate the expedited
deployment of the rapidly evolving wireless technology.
The primary demand for expanded wireless telecommunication capacity is not wireless
phones, but rather the exploding data requirements in response to the proliferation of
internet functions and “apps”, all of which generate and require increased data use and
storage capabilities.
The following is a brief summary of the key aspects of the primary legislation and FCC
rulings.
The Telecommunications Act of 1996 (the Act) – addresses placement of towers and
other facilities for use in providing personal wireless services. The Act included the
following key provisions:
• prohibited local governments from taking actions to discriminate against or
prohibit personal wireless facilities;
• preempted local governments from regulating proposed wireless facilities based
on the environmental effects of RF emissions; and
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• required local governments to act “within a reasonable time” on wireless facility
installation requests.
FCC Declaratory Ruling (2009) – stated that 90 days is a reasonable timeframe for
processing collocation applications and 150 days is reasonable for any project that is
not a collocation application. These timeframes are applied to the discretionary
applications, e.g., planning permits.
The Middle Class Tax Relief and Job Creation Act of 2012 - Section 6409(a) -
imposed significant revisions to the requirements local governments mu st adhere to
when processing applications for wireless telecommunications facilities. The
following excerpts from Section 6409(a) define the fundamental legal changes
instituted.
• “.. a state or local government may not deny, and shall approve, any eligi ble
facilities request for modification of an existing wireless tower or base station that
does not substantially change the physical dimensions of such tower or base
station.”
• An “eligible facilities request” is defined in Section 6409(a), and the by F CC as
“any request or modification of an existing wireless tower or base station that
does not substantially change the physical dimensions of such towers or base
stations, involving the collocation of new, or removal or replacement of
transmission equipment.
• The definition of the term “substantial change” establishes the physical size,
location and other parameters that a project must meet to qualify as an eligible
facilities request.
FCC rules implementing Section 6409(a) added a requirement to approve eligible
facilities requests within 60 days of submittal.
California Assembly Bill AB57, passed in October, 2015, further limits local
government discretion in approval of wireless facilities. It states that a wireless
facility subject to Section 6409(a) that is an “eligible facility” and has not been
justifiably denied is “deemed approved” if the applicable FCC timeframe has run out.
Zoning Ordinance Chapter 30.35 Wireless Telecommunication Facilities, Antennas and
Windmills was originally adopted in December, 2003. Prior to that time, wireless
telecommunication facilities were regulated by the standard Zoning Ordinance
development provisions e.g., building setbacks and height, etc. There were no
provisions specifically addressing the unique characteristics and issues surrounding
wireless telecommunications towers and related facilities. The ordinance has only been
amended once, previously, to reflect a change in Federal law that requires a 10 -year
term for permits for wireless telecommunication facilities.
PLANNING COMMISSION DISCUSSION AND ACTION
8.B
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At a public meeting on September 7, 2017, the Planning Commission discussion
focused on concerns raised by a recent article in the San Jose Mercury News that
described renewed concerns regarding the potential public health impacts of increased
numbers of wireless telecommunications antennas being deployed in many cities.
Commissioners suggested consideration of buffer zones surrounding sensitive land
uses, such as schools and daycare centers that prohibit location of wireless antennas.
The City Attorney reminded the Commission that FCC regulations prohibit jurisdictions
from denying an application for installation of a wireless telecommunications facility
based on potential health effects, if the facility meets FCC radio frequency thresholds.
The Commission voted to recommend the City Council deny the proposed ordinance on
a 5 – 2 vote (Commissioners Estorga and Rodriguez voting no). The Planning
Commission Resolution for denial is included as Attachment 3 of this agenda report.
ANALYSIS
The proposed ordinance is provided as Attachment 1. The primary modifications of the
ordinance include the following:
Establish that wireless telecommunication facilities including Distributed Area
Systems and Small Cell Wireless Networks attached to city-owned facilities, e.g.,
street lights in public right-of-way (ROW), are exempt from the requirements of
Chapter 30.35 Wireless Telecommunications, Antennas and Windmills. In place
of such compliance, such networks will require execution of a master lease
agreement with the City for use of the facilities. The lease will incorporate all of
the applicable requirements from the Zoning Ordinance, eliminating the need to
process discretionary permits for such projects and establish other provisions
including facility rent, maintenance, etc.
Eliminate discretionary permit requirements (Architecture and Site Review or
Conditional Use Permit) for the category of modifications to existing wireless
facilities defined in Federal law as co-locations (adding equipment to an existing
wireless facility) and establish a Zoning Clearance ministerial review to be
conducted prior to Building Permit approval, at which time Planning Staff will
verify that all Section 30.35 requirements are being met in the proposed Building
Permit application.
The decision to eliminate the discretionary approval requirement is based on the
cumulative effects of the changes in federal law. The majority of wireless
projects processed qualify as eligible facilities requests and collocations, and are
well within the allowed parameters of “substantial change”. They typically
contain very similar components and consistently meet most, if not all, of the
requirements of existing Chapter 30.35. The Middle Class Tax Relief and Job
Creation Act of 2012’s Section 6409(a) specifies that such projects must be
approved within 60 days, and are deemed approved if not done so by the City
within that timeframe. As a result, staff is recommending eliminating the existing
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discretionary permit requirements in favor of a ministerial review by planning staff
prior to issuance of the building permit to ensure that the project meets the
requirements of Section 30.35.
The two above modifications will significantly streamline the process for approval of
wireless telecommunications facilities in Gilroy, facilitating improved wireless service for
residents, businesses and visitors while maintaining the standards incorporated in the
Zoning Ordinance.
As noted above the ordinance also includes various other minor revisions to ensure
compliance with new state and federal legal requirements. These are outlined in the
Planning Commission staff report, included as Attachment 2.
ALTERNATIVES
Should the City Council wish to approve the changes to Sect ion 30.35 Wireless
Telecommunications, Antennas and Windmills, as proposed, or as modified by the
Council. An approval ordinance is attached. This is the recommended action.
Should the Council choose not to approve the proposed ordinance , the current Section
30.35 will remain in place, including those provisions which are inconsistent with federal
and state law and FCC regulations. This action is not recommended.
FISCAL IMPACT/FUNDING SOURCE
A very minor net reduction in fee revenues would be anticipated due to the reduction in
the number of Architecture and Site Review permits resulting from the elimination of the
permit requirement for certain Wireless projects. Over the last four years, the Planning
Division has received an average of six (6) permit applications for wireless antenna
modifications each year. The permit fee is $4,065.00, which would equate to a potential
loss of an average of $24,390.00 annually.
However, the reduction in the number of applications will also result in a parallel
reduction in staff workload. The proposed new Zoning Clearance application will
include a lower, and not yet determined fee and staff review process, which will result in
a somewhat reduced net level of fee revenue reduction.
NEXT STEPS
Should the Council adopt the recommended changes, the ordinance will be scheduled
for adoption at the next regular meeting and will be effective 30 days thereafter.
Attachments:
1. 30.35 - 45 Wireless Ordinance
2. Planning Commission Staff Report
3. Signed PC Reso without ord.
8.B
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1
ORDINANCE NO. 2018-
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
GILROY ADOPTING AMENDMENTS TO ARTICLE 30.35 OF
THE GILROY CITY CODE ENTITLED “WIRELESS
TELECOMMUNICATIONS, ANTENNAS AND WINDMILLS”,
AND ARTICLE 30.45 OF THE GILROY CITY CODE ENTITLED
“GENERAL REGULATIONS” RELATING TO THE
INSTALLATION OF WIRELESS TELECOMMUNICATION
FACILITIES
WHEREAS, Gilroy City Code, Chapter 30, Article 30.35 pertains to Wireless
Telecommunication Facilities requirements and the federal and state government governments
have adopted legislation that requires amendments to Section 30.35;
WHEREAS, the City Council of the City of Gilroy has considered the zoning code
amendment request (Z 17-05), in accordance with the Gilroy Zoning Ordinance, and other
applicable standards and regulations; and
WHEREAS, the Planning Commission of the City of Gilroy held a noticed public
hearing on September 7, 2017 to consider the request and reviewed written materials and oral
comments related to the proposed code amendments and recommended that the City Council
deny Z17-05; and
WHEREAS, the City Council of the City of Gilroy held a noticed public hearing on
October 2, 2017 to consider the request and reviewed written materials and oral comments
related to the proposed code amendments; and
WHEREAS, the subject ordinance amendment is covered under Section 15061(b)(3) of
the California Environmental Quality Act (CEQA) Guidelines as an activity that can be seen
with certainty to have no possibility for causing a significant effect on the environment; and
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF GILROY DOES
HEREBY ORDAIN AS FOLLOWS:
SECTION I
That Gilroy City Code, Chapter 30, Article 35 is amended to read as follows:
30.35.10 Purpose and intent.
The purpose and intent of this article is to provide a uniform and comprehensive set of standards
for the development, siting, installation and operation of wireless telecommunications antennas
and related facilities (“wireless telecommunication facilities”) for personal wireless services.
These regulations are designed to protect and promote public safety and community welfare, to
preserve the visual character of the city, to establish development standards that are consistent
with federal law related to the development of wireless telecommunication transmission
facilities, to acknowledge the community benefit associated with the provision of wireless
telecommunication services within the city, and to provide incentives for well-designed and well
placed facilities.
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(a) The objectives of this article include but are not limited to the following:
(1) General Order 159A of the Public Utilities Commission (PUC) of the State of
California acknowledges that local citizens and local government are often in a better
position than the PUC to measure local impact and to identify alternative sites.
Accordingly, the PUC will generally defer to local governments to regulate the location
and design of cell sites, wireless telecommunication facilities and mobile telephone
switching offices (MTSOs) including (a) the issuance of land use approvals, (b) acting as
lead agency for purposes of satisfying the California Environmental Quality Act (CEQA),
and (c) the satisfaction of noticing procedures for both land use and CEQA procedures;
(2) Foster an aesthetically pleasing urban environment, prevent visual blight, protect and
preserve public safety and general welfare, and maintain the character of residential and
adjacent neighborhood commercial areas consistent with the adopted general plan and
specific plans and in compliance with applicable state and federal legislation;
(3) Establish and maintain telecommunications facilities that are components of a wireless
telecommunications infrastructure designed to enhance the city’s emergency response
network and do not interfere with such emergency systems in violation of applicable
federal or state regulations;
(4) Establish a process for obtaining necessary permits for wireless telecommunication
facilities that provides greater certainty to both applicants and interested members of the
public while ensuring compliance with all applicable zoning requirements;
(5) Because wireless telecommunications antennas and related facilities for cellular and
mobile phones and personal communications systems are a commercial use that are usually
separate from and are rarely accessory to the primary use of a parcel, to dissuade locating
such facilities in residentially zoned districts unless (a) such location is necessary to
provide personal wireless services to residents and businesses in the City of Gilroy, or their
owners, customers, guests, or invitees, or other persons traveling in or about the City of
Gilroy, (b) the wireless telecommunications facilities are designed to interfere as little as
possible with the character of the neighborhood, and (c) another feasible alternative site or
sites exist that can provide comparable services individually or in combination, as
evidenced by a report provided by the applicant;
(6) Provide opportunities for further reduction in potential aesthetic or land use impacts of
wireless telecommunications facilities as changes in technology occur; and
(7) Promote the use of wireless telecommunications technology, where appropriate and
within the scope of available resources, to enhance the economic vitality of the city of
Gilroy.
(8) Comply with applicable State and Federal laws, including the 1996
Telecommunications Act and Section 6409 (a) of the Middle Class Tax Relief and Job
Creation Act of 2012.
30.35.11 Definitions.
“Amortize” means the period of time necessary to secure full value of the legal owner’s
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investment in the wireless telecommunication equipment pursuant to the regulations of generally
accepted accounting principles (“GAAP”) as established by the American Institute of Certified
Public Accountants (AICPA).
“Antennas” means any system of wires, poles, rods, reflecting discs, dishes, flat panels, or
similar devices, including “whip antennas,” attached to a telecommunications tower, mast or
other structure, which in combination with the radio-frequency radiation generating equipment
associated with a base station are used for the transmission or reception of electromagnetic
waves.
“Base station” means the structure and equipment at a fixed location that enables Federal
Communications Commission (FCC)-licensed or authorized wireless communications between
user equipment and a communication network. It includes, but is not limited to, utility poles,
light standards, traffic signals, buildings, and other structures that currently house
communication equipment as long as it received the applicable regulatory approvals, even if the
structure was not built for the sole or primary purpose of providing such support. primary
sending and receiving site in a wireless telecommunications network, including all radio
frequency generating equipment connected to antenna. More than one (1) base station and/or
more than one (1) variety of telecommunications providers can be located on a single tower or
structure.
“Cellular service” means a wireless telecommunications service that permits customers to use
mobile telephones and other communication devices to connect, via low-power radio transmitter
sites, either to the public-switched telephone network or to other fixed or mobile communication
devices.
“Channel” means the segment of the radiation spectrum from an antenna, which carries one (1)
signal. An antenna may radiate on many channels simultaneously.
“Collocation” or “co-located facility” means the mounting or installation of transmission
equipment on an existing wireless tower or base station for the purpose of transmitting and/or
receiving radio frequency signals for communication purposes. when more than one (1) wireless
service provider share a single wireless communication facility. A co-located facility can be
comprised of a single tower, mast/pole or building that supports two (2) or more antennas,
dishes, or similar wireless communication devices, that are separately owned or used by more
than one (1) public or private entity. Collocation can consist of additions or extensions made to
existing towers so as to provide enough space for more than one (1) user, or it can involve the
construction of a new replacement tower with more antenna space that supplants an older tower
with less capacity. Placing new wireless telecommunication facilities/antennas upon existing or
new PG&E or other utility towers or poles (e.g., “microcell” sites) is also considered collocation.
“Communication equipment shelter” means a structure located at a base station designed
principally to enclose equipment used in connection with telecommunication transmissions.
“dBm” means a unit of measure of the power level of an electromagnetic signal expressed in
decibels referenced to one (1) milliwatt.
“Dish antenna” means any device incorporating a reflective surface that is solid, open mesh, or
bar configured that is shallow dish, cone, horn, or cornucopia-shaped and is used to transmit
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and/or receive electromagnetic signals.
“Equipment building, shelter or cabinet” means a cabinet or building used to house equipment
used by wireless telecommunication providers at a facility.
“FAA” means Federal Aviation Administration.
“FCC” means Federal Communications Commission, the government agency responsible for
regulating telecommunications in the United States.
“GHz” means gigahertz—one billion (1,000,000,000) hertz.
“Ground-mounted wireless telecommunication facility” means any antenna with its base placed
directly on the ground, or that is attached to a mast or pipe.
Hertz. One (1) hertz is a unit of measurement of an electric or magnetic field, which reverses its
polarity at a frequency of once per second (i.e., one (1) cycle or wavelength per second).
Major modification to power output” means any of the following resulting in an increase in the
wireless communication facility’s power output and/or increase in the intensity or change in the
directionality of NIER propagation patterns: increase or intensification, or proposed increase or
intensification, in power output or in size or number of antennas; repositioning of antenna(s);
change in number of channels per antenna above the maximum number previously approved by
the City of Gilroy, including changes to an y/all RF-generating equipment/componentry that are
attached to antennas.
“Major modification to visual impact” means any increase or intensification, or proposed
increase or intensification, in dimensions of an existing and/or permitted wireless
communications facility (including, but not limited to, its telecommunications tower or other
structure designed to support telecommunications transmission, receiving and/or relaying
antennas and/or equipment) resulting in an increase of the visual impact of said wireless
communications facility.
“MHz” means megahertz—one million (1,000,000) hertz.
“Microcell site” means a small radio transceiver facility comprised of an unmanned equipment
cabinet with a total volume of one hundred (100) cubic feet or less that is either under or
aboveground, and one (1) omni-directional whip antenna with a maximum length of five (5) feet,
or up to three (3) small (approximately one (1) foot by two (2) feet or one (1) foot by four (4)
feet) directional panel antennas, mounted on a single pole, an existing conventional utility pole,
or some other similar support structure.
“MMDS” means multichannel, multipoint distribution services (also known as “wireless cable”).
“Monitoring” means the measurement, by the use of instruments in the field, of radio-
frequency/nonionizing radiation exposure at a site as a whole, or from individual wireless
telecommunication facilities/towers/antennas/repeaters.
“Monitoring protocol” means an industry accepted radio-frequency (RF) radiation measurement
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protocol used to determine compliance with FCC RF radiation exposure standards, in accordance
with the National Council on Radiation Protection and Measurements Reports 86 and 119 and
consistent with the RF radiation modeling specifications of OET Bulletin 65 (or any superseding
reports/standards), which is to be used to measure the emissions and determine radio-frequency
radiation exposure levels from existing and new telecommunications facilities. RF radiation
exposure measurements are to be taken at various locations, including those from which public
RF exposure levels are expected to be the highest.
“Monopole” means a single pole-structure erected on the ground to support one (1) or more
wireless telecommunication antennas and connecting appurtenances.
“MTSOs” means mobile telephone switching offices.
“Nonionizing electromagnetic radiation (NIER)” means radiation from the portion of the
electromagnetic spectrum with frequencies of approximately one million (1,000,000) GHz and
below, including all frequencies below the ultraviolet range, such as visible light, infrared
radiation, microwave radiation, and radio frequency radiation.
“Nonmajor modification or maintenance activity” means a modification that is not a major
modification to power output and is not a major modification to visual impact, or a maintenance
activity that does not result in a major modification to power output or a major modification to
visual impact.
PCS—personal communications services” means digital wireless telecommunications
technology such as portable phones, pagers, faxes and computers. Also known as personal
communications network (PCN).
“PUC” or “CPUC” means California Public Utilities Commission
“PUD” means planned unit development
“Personal wireless services—commercial” means mobile services, unlicensed wireless services,
and common carrier wireless exchange access services. These services include: cellular services,
personal communication services, specialized mobile radio services, and paging services.
“PUC” or “CPUC” means California Public Utilities Commission.
“PUD” means planned unit development.
“Public Works Director” means the department head for the city’s public works department, or
the person designated to act for purposes of this article XXXV.
“Radio-frequency (RF) radiation” means radiation from the portion of the electromagnetic
spectrum with frequencies below the infrared range (approximately one hundred (100) GHz and
below), including microwaves, television VHF and UHF signals, radio signals, and low to ultra-
low frequencies.
“Repeater” means a small receiver/relay transmitter of relatively low power output designed to
provide service to areas that are not able to receive adequate coverage directly from a base or
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primary station.
“Significant gap” means a gap in the service provider’s (applicant carrier’s) own personal
wireless services network within the City of Gilroy, as defined in federal case law interpretations
of the Federal Telecommunications Act of 1996.
“Stealth technology/techniques” means camouflaging methods applied to wireless
telecommunication towers, antennas and/or other facilities, which render them visually
inconspicuous.
“Structurally able” means the determination that a tower or structure is capable of carrying the
load imposed by the new antennas under all reasonably predictable conditions as determined by
professional structural engineering analysis.
“Structure-mounted wireless telecommunication facility” means any immobile antenna
(including panels and directional antennas) attached to a structure, such as a building facade or a
water tower, or mounted upon a roof.
“Telecommunication tower (tower)” means [a]ny structure built for the sole or primary purpose
of supporting any FCC-licensed or authorized antennas and their associated facilities. It includes,
but is not limited to, masts, poles, monopoles, guyed towers, lattice towers, and freestanding
towers, or other structure designed and primarily used to support antennas.
“Transmission equipment” means equipment that facilitates transmission of any FCC-licensed or
authorized wireless service. It includes, but is not limited to, radio transceivers, antennas, coaxial
or fiber-optic cable, and regular and backup power supply.
“Viable,” primarily in reference to the alternatives analysis, means an alternative site for which
there is a property owner/manager interested in renting, leasing, selling, or otherwise making
available, space for one (1) or more wireless telecommunication facilities upon said site on
reasonable terms commensurate with the market in the City of Gilroy.
“Visual impact” means an adverse effect on the visual and/or aesthetic environment. This may
derive from blocking of a view, or introduction of elements that are incompatible with the scale,
texture, form or color of the existing natural or human-made landscape, including the existing
community character of the neighborhood.
“Wireless telecommunication (or telecommunications) facility” means a facility, including all
associated equipment, which supports the transmission and/or receipt of electromagnetic/radio
signals. Wireless telecommunication facilities include cellular radiotelephone service facilities,
personal communications service facilities (including wireless Internet), specialized mobile radio
service facilities, and commercial paging service facilities. Components of these types of
facilities can consist of the following: antennas, repeaters, microwave dishes, horns, and other
types of equipment for the transmission or receipt of such signals, telecommunication towers or
similar structures supporting said equipment, equipment buildings, parking area, and other
accessory development.
30.35.12 Applicability.
(a) Facilities regulated by this article include the siting, design, construction, major modification,
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and operation of all wireless telecommunication facilities, including Federal Communications
Commission (FCC)- regulated dish antennas, antennas used for multichannel, multipoint
distribution services (MMDS) or “wireless cable,” personal wireless service facilities (e.g.,
cellular phone services, PCS—personal communication services, wireless paging services, etc.),
television antennas and windmills. The regulations in this article and qualifying applications
processed pursuant to this Ordinance are intended to be consistent with the requirements of
applicable sState and fFederal law, particularly including the Federal Telecommunications Act of
1996 and Section 6409 (a) of the Middle Class Tax Relief and Job Creation Act of 2012, in that
they are not intended to: (1) be used to unreasonably discriminate among providers of
functionally equivalent services, (2) have the effect of prohibiting personal wireless services
within the City of Gilroy, or (3) have the effect of prohibiting the siting of wireless
telecommunication facilities on the basis of the environmental/health effects of radio frequency
emissions, to the extent that the regulated services and facilities comply with the regulations of
the Federal Communications Commission FCC concerning such emissions.
(b) Nothing contained in this article affects the city’s right to retain and/or utilize its proprietary
rights over its property.
30.35.13 Exemptions.
(a) The following wireless telecommunications facilities shall be exempt from this article:
(1) A wireless telecommunication facility shall be exempt from the permit provisions of
this article if and to the extent that a permit issued by the California Public Utilities
Commission (CPUC) or the rules and regulations of the Federal Communications
Commission FCC specifically provides the antenna is exempt from local regulation.
(2) Direct broadcast satellite (DBS) antennas and multipoint distribution services (MDS)
antennas which are one (1) meter or less in diameter or diagonal measurement and
television broadcast service (TVBS) antennas so long as they are located entirely on site
and are not located within the required front yard setback area. This locational requirement
is necessary to ensure that such antenna installations do not become attractive nuisances
and/or result in accidental tripping hazards if located adjacent to a street or other public
right-of-way.
(3) Satellite earth station (SES) antennas which are two (2) meters or less in diameter or in
diagonal measurement located in a commercial or industrial zoning district. However, such
antennas shall require building permit approval and architectural and site review by the
planning division to ensure maximum safety is maintained. In order to avoid the creation of
an attractive nuisance, reduce accidental tripping hazards and maximize stability of the
structure, such antennas shall be placed whenever possible on the top of buildings and as
far away as possible from the edges of rooftops.
(4) A ground- or building-mounted citizens band or two (2) way radio antenna including
any mast.
(5) A ground-, building-, or tower-mounted antenna operated by a federally licensed
amateur radio operator as part of the amateur or radio service, provided the antenna does
not exceed thirty-five (35) feet in the R1 and R2 zone districts, thirty (30) feet in the RH
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zone district, forty-five (45) feet in the R3 zone district, seventy-five (75) feet in the R4
zone district and fifty (50) feet in the public facilities zone district. Amateur radio antennas
that exceed the height limit in residential zone districts are required to secure approval of a
conditional use permit.
(6) A ground- or building-mounted receive-only radio or television antenna which does not
exceed the height requirements of the zoning district, or television dish antenna which does
not exceed three (3) feet in diameter if located on residential property within the exclusive
use or control of the antenna user.
(7) A television dish antenna that is no more than six (6) feet in diameter and is located in
any area where commercial or industrial uses are allowed by the land use designation.
Television dish antennas greater than one (1) meter in diameter in the R1 and R2 zones
shall be permitted only between the main dwelling unit and the rear property line, or
attached to the rear roof eave or building wall and not within twenty (20) feet of any
property line adjacent to a public right-of-way. Dish antennas greater than one (1) meter
shall not be placed higher than eighteen (18) feet. In other zone districts, dish antennas
shall be screened to comply with section 30.50.45 related to mechanical appurtenances,
whether such antenna is located on the roof or on the ground.
(8) Temporary mobile wireless services, including mobile wireless telecommunication
facilities and services providing public information coverage of news events, of less than
two (2) weeks’ duration.
(9) Hand held devices such as cell phones, business-band mobile radios, walkie-talkies,
cordless telephones, garage door openers and similar devices.
(10) Wireless telecommunication facilities and/or components of such facilities to be used
solely for public safety purposes, installed and operated by authorized public safety
agencies (e.g., county 911 emergency services, police, sheriff, and/or fire departments, first
responder medical services, hospitals, etc.), are exempt from the provisions of this article.
(11) Any nonmajor modification or maintenance activities carried out as part of the routine
operation of wireless telecommunication facilities.
(12) Small scale, low powered, short-range wireless Internet transmitter/receivers (e.g.,
“wi-fi hotspots”).
(13) A television antenna that is not located in any front or side yard setback, at least six
(6) feet from any property boundary, set back ten (10) feet from any overheard electrical
power line, located such that any collapse of the antenna will not result in contact with any
power line carrying over four thousand (4,000) volts, and does not exceed the zone district
height limit by more than fifteen (15) feet.
(14) Windmills that conform to all height and setback requirements established for the
main building in the zone district. The setback shall be measured from the greatest possible
extension of any fixed or movable part of the windmill or related structure. Windmills shall
be located at least ten (10) feet from any overhead electrical power line.
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(15) Telemetry facilities used solely for the monitoring and control of water, sewer,
irrigation, and flood and storm control systems.
(16) Notwithstanding section 30.35.13(a) (1), all DAS/small cell structures and equipment
affixed to city-owned street lights or other city-owned facilities, structures or equipment in
the public ROW are subject to the execution of a master lease agreement between the City
and the carrier that includes all of the siting and design requirements that would typically
occur in the planning review process and project implementation through the
Encroachment Permit process.
30.35.14 Permits required.
(a) Permit Required. No wireless telecommunications facility on public or private
property except those designated in section 30.35.13 (Exemptions) shall be installed or
erected in the city limits of Gilroy except upon approval of a permit as set forth in Table
35.1. Table 35.1 identifies the type of permit required in each general zoning
classification.
(b) Collocation. Each service provider located on a collocation site must obtain a permit
zoning clearance per section 30.45.15, independent of the other service providers in the
same locations if the proposed facility complies with all of the following requirements:
1. The facility Is consistent the current zoning regulations;
2. The facility was previously subject to discretionary review; and
3. The facility was found to be in compliance with CEQA and NEPA.
Multiple service providers may submit one (1) application for all intended co-located
facilities.
(c) Architectural and Site Review Permit. Applications, which require approval of a
conditional use permit, shall also require approval of an architectural and site review
permit.
(d) Conflicting Provisions. Use permits and architectural and site review permits shall be
processed in accordance with sections 30.50.30 and 30.50.40, respectively, and in
accordance with the provisions of this article. In the event of any conflict between the
provisions of this article and the provisions of sections 30.50.30 and 30.50.40, the
provisions of this article shall be controlling.
(e) Findings. In approving or denying any permit required by this article, written findings
shall be made for the particular permit sought setting forth the factual basis for the
decision in accordance with section 30.35.20.
(f) Conditions. In approving an application, the city may impose such conditions as it
deems appropriate or necessary to further the purposes of this article, including, but not
limited to, redesign or relocate the facility and resubmit a revised proposal for further
consideration.
(g) Wireless Telecommunication Services Not Prohibited. Notwithstanding anything
contained in this article to the contrary, no decision made pursuant to this article shall
have the effect of prohibiting the provision of wireless telecommunication services in the
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city.
(h) Notification. Except for exempt facilities listed in section 30.35.13 and wireless
telecommunication facilities that are in commercial or industrial zone districts and at least
five hundred (500) feet from a residential dwelling, all residential property owners within
five hundred (500) feet of a property on which a wireless telecommunications facility is
proposed shall be notified of the wireless telecommunication facility application as
provided in section 30.51.30(b). Applicants for wireless telecommunication facilities that
are proposed in industrial or commercial zone districts and are within five hundred (500)
feet of a residential dwelling shall provide notification to all residential uses in the five
hundred (500) foot radius from the property boundaries of the proposed facility pursuant
to the procedures in section 30.51.30(b) (Notices).
Table 35.1
Required Permit Matrix
General Zoning Districts
Type of
Permit
Residential
Districts and
Mixed Use
Projects with
Residential Uses
Commercial and
Industrial
Districts
Publicly Owned
Property
Open Space
Districts
Conditional use
permit—
planning
commission
review
All wireless
telecommunication
facilities except
those designated in
section 30.35.13,
Exemptions, and
30.35.14(b)
All wireless
telecommunication
facilities except
those designated in
section 30.35.13,
Exemptions, and
30.35.14(b),
Architectural
and site
review—staff
review
All wireless
telecommunication
facilities except
those designated in
section 30.35.13,
Exemptions, and
30.35.14(b),
All wireless
telecommunication
facilities except
those designated in
section 30.35.13,
Exemptions, and
30.35.14(b)
All wireless
telecommunication
facilities except
those designated in
section 30.35.13,
Exemptions, and
30.35.14(b),
All wireless
telecommunication
facilities except
those designated in
section 30.35.13,
Exemptions and
30.35.14(b),
Zoning All collocation All collocation All collocation All collocation
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Clearance applications
pursuant to section
30.35.14(b),
Permits Required
applications
pursuant to section
30.35.14(b),
Permits Required
applications
pursuant to section
30.35.14(b),
Permits Required
applications
pursuant to section
30.35.14(b),
Permits Required
30.35.15 Preapplication.
A preapplication conference is strongly encouraged for all wireless telecommunication
proposals. For a new site Ttwo (2) preapplication submittals are encouraged. The first should
take place at the earliest stage of looking for an appropriate site and include a map of the
geographic service area and geographic area where the antenna site is proposed. A second
preapplication submittal is recommended after the site is selected and should include a site
review and architectural drawings illustrating the visual impacts of the project together with a
radio frequency analysis of the proposed facility. For a proposed collocation, one preapplication
conference is strongly encouraged and should include site review and architectural drawings and
a radio frequency analysis. A preapplication submittal is not considered a development
application and no fee is charged for review of material submitted at this stage.
30.35.16 Minimum application requirements.
Information to Be Provided. For all wireless telecommunications facilities, with the exception of
collocations, as defined in Section 30.35.14 (b), above, the applicant shall provide the
information listed below. Application for a wireless telecommunications facility shall be made
upon a form to be provided by and shall be submitted to the planning division. Application
requirements that contain an asterisk after the item are required for all applications that require a
conditional use permit only. The number and size of plans shall be determined by the planning
manager, who may waive certain submittal requirements or require additional information based
on specific project factors. Applications for a collocation requiring a Zoning Clearance are not
required to include the following sections: 30.35.16 (d) Ten (10) Year Plan, 30.35.16 (e)
Cumulative Effects, or 30.35.16 (h) Alternatives Analysis.
(a) Proposed Wireless Telecommunications Facility Plans.
(1) Site Review. Provide a site review plan, drawn to a measurable scale, showing the
metes and bounds of the property, showing the location of existing features of the site
including existing structures, roads, landscaping, trees and other significant natural
features. The site review shall also show the location of each new structure to be located on
the site including telecommunications antennas, base transceiver stations, equipment
cabinets and buildings, parking, lighting, and appurtenant structures including screening.
(2) Elevations. Provide elevations and identify heights of all proposed telecommunication
structures and appurtenances and composite elevations from the street of all structures on
site.
(3) Colored Elevations. Colored renderings or perspectives of the street elevation and any
other elevation that will be visible from public view. A sample of colors and materials is
required at the time of application submittal.
(4) Section Drawings. If applicable, section drawings shall be provided to show the
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foundations/footings of new structures and how they affect existing conditions, including
landscaping.
(5) Visual Impact Demonstrations. Using photo-simulations, photo-montage, story poles,
elevations or other visual or graphic illustrations, provide a visual impact demonstration to
determine potential visual impact including proper coloration and blending of the facility
with the proposed site.
(6) Visibility Impacts. If the installation is located where it is visible to the public, identify
what elements of the proposed facility (including screening) can be viewed by the public.
(7) Landscape Plan. Provide a landscape plan that shows existing vegetation, indicating
any vegetation proposed for removal, and identifying proposed plantings by type, size and
location. If deemed necessary by the planning manager, an arborist’s report may be
required to verify that the existing landscaping will not be adversely affected by the
installation of the facility. The arborist’s report may recommend protective measures to be
implemented during construction.
(8) Miscellaneous and Appurtenant Structures. Show all facility-related support and
protection measures to be installed. This includes, but is not limited to, the location(s) and
method(s) of placement, support, protection, screening, paint and/or other treatments of the
antennas, base transceiver stations, equipment cabinets and buildings, cables, and other
appurtenances to ensure public safety, ensure compatibility with urban design, architectural
and historic preservation principles, and harmony with neighborhood character.
(9) Other Wireless Telecommunication Facilities. A plan showing telecommunication
facilities of all wireless telecommunications service providers within one thousand (1,000)
feet of the proposed site including facilities located outside the City of Gilroy, if
applicable.
(b) Narrative.
(1) Antennas. List the number of antennas and base transceiver stations and/or equipment
cabinets and buildings per site by your carrier and, if there are other installations on a site,
list the number by each carrier.
(2) Location. Describe the location and type of antenna installations (standalone rooftop,
rooftop attached to a mechanical penthouse or building facade) and location of the base
transceiver station(s), equipment cabinets and/or buildings.
(3) Height. List the height from nearest adjacent grade to the top of the antennas
installation(s).
(4) Radio Frequency. List the radio frequency range in megahertz and list the wattage
output of the equipment.
(5) FCC Compliance. Provide a description stating that the system, including the antennas
and associated base transceiver stations, equipment cabinets and buildings; conform to the
radio-frequency radiation emission standards adopted by the FCC.
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(6) Maintenance. Provide a description of the anticipated maintenance and monitoring
program for the antennas and back-up equipment, including frequency of maintenance
services, back-up service plans for disruption of service due to repair, testing, maintenance
or monitoring activities.
(7) Environmental Assessment. Provide sufficient information to permit the city to make
any required determination under the California Environmental Quality Act (CEQA).
(8) Noise/Acoustical Information. Provide noise and acoustical information for the base
transceiver stations, equipment buildings and associated equipment such as air conditioning
units and back-up generators.
(9) Site Selection Process. Provide a description explaining the site selection process
including information about other sites that were considered and reasons for their rejection.
In addition, carriers must demonstrate that facilities have been designed to attain the
minimum height required from a technological standpoint for the proposed site.
(10) A structural professional engineer’s written description of the proposed tower/facility
structure and its capacity to support additional antennas or other communication facilities
at different heights and the ability of the tower to be shortened if future communication
facilities no longer require the original height.
(c) Geographic Service Area. Identify the geographic service area for the subject installation,
including a map showing the site and the associated “next” cell sites within the network.
Describe the distance between cell sites. Describe how this service area fits into and is necessary
for the company’s service network. Illustrate the geographic area in which the facility could be
located showing all other sites that could be used for antenna location.
(d) Ten (10) Year Plan. Provide a map showing how the proposed facility fits into the individual
service provider’s network of existing and proposed antenna sites. Each application shall include
a ten (10) year facilities plan. The ten (10) year plan shall include:
(1) Type of Technology. A written description of the types of technology to be provided to
its customers over the next ten (10) years (e.g., cellular, PCS, ESMR).
(2) Radio Frequencies. A description of the radio frequencies to be used for each
technology.
(3) Services. The type of consumer services (voice, video, data transmission) and consumer
products (mobile phones, laptop PCs, modems) to be offered.
(4) All Facilities. Provide a list of all existing, existing to be upgraded or replaced, and
proposed cell sites within the city for these services by your company.
(5) List of Information. Provide a list of the ten (10) year cell sites, with the following
information:
a. List the cell sites by address and assessor’s parcel number.
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b. The zoning district in which the site is located.
c. The type of building and the number of stories.
d. The name of the carrier (your company).
e. Appurtenant Equipment. The number of antennas and base transceiver stations,
equipment cabinets and buildings per site by your carrier and, if there are other
installations on a site, list the number by each carrier.
f. Location. Describe the location and type of antenna installation (standalone rooftop,
rooftop attached to a mechanical penthouse or building facade) and location of the
base transceiver station, equipment cabinets and buildings.
g. Height. List the height from grade to the top of the antenna installation(s), the radio
frequency range in megahertz and the wattage output of the equipment.
(6) Ten (10) Year Map. Using the city zoning map as a base, show the ten (10) year cell
sites. If individual properties are not known, show the geographic service areas of the cell
sites.
(e) Cumulative Effects. Identify the location of the applicant’s antennas and backup facilities per
building and number and location of other wireless telecommunication facilities on and near the
property, including the following:
(1) Height. The height of all existing and proposed wireless telecommunications facilities
on the property, shown in relation to the height limit for the district and measured from
grade.
(2) Antennas. The dimensions of each existing and proposed antenna, base transceiver
station, equipment cabinet and associated building and backup equipment on the property.
(3) Power Rating. The power rating for all existing and proposed backup equipment subject
to the application.
(4) Ambient Radio Frequency. A report estimating the ambient radio frequency fields for
the proposed site.
(5) Total Watts. The total number of watts per installation and the total number of watts for
all installations on the building (roof or side).
(6) Facilities within One Hundred (100) Feet. The number and types of wireless
telecommunication facilities within one hundred (100) feet of the proposed site and provide
estimates of the cumulative electromagnetic radiation emissions at the proposed site
(f) Other Permit Requirements. The application information required by sections 30.50.30(b) and
30.50.42 for the particular permit sought by the applicant (conditional use permit and/or
architectural and site review application).
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(g) Collocation Agreement. All telecommunications carriers shall provide a letter stating their
willingness to allow other carriers to co-locate on their facilities wherever technically and
economically feasible and aesthetically desirable. Telecommunication facility applicants shall
also provide written notice to all telecommunication providers in the City of Gilroy stating their
intent to locate a new wireless telecommunication facility and willingness to allow other carriers
to co-locate on their facility. To facilitate collocation when deemed appropriate, conditions of
approval for conditional use permits shall require all service providers to cooperate in the siting
of equipment and antennas to accommodate the maximum number of operators at a given site
where found to be feasible and aesthetically desirable. The applicant shall agree to allow future
collocation of additional antennas and shall not enter into an exclusive lease for the use of the
site.
(h) Alternatives Analysis. For applications for wireless communication facilities proposed to be
located in any residential zone districts or within a PUD with residential uses, an alternatives
analysis must be submitted by the applicant, subject to independent RF engineering review,
which shall at a minimum:*
(1) Identify and indicate on a map at a minimum two (2) viable, technically feasible, and
potentially environmentally equivalent or superior alternative locations for facilities within
residential zone districts or PUDs with residential uses, which could eliminate or
substantially reduce the significant gap(s) in the applicant carrier’s network intended to be
eliminated or substantially reduced by the proposed facility. If there are fewer than two (2)
such alternative locations, the applicant must provide evidence establishing that fact. The
map shall also identify all locations where an unimpaired signal can be received to
eliminate or substantially reduce the significant gap(s). For all non-co-located wireless
communication facilities proposed in residential zone districts or PUD with residential
uses, the applicant must also evaluate the potential use of one (1) or more microcell sites
(i.e., smaller facilities often mounted upon existing or replacement utility poles), and the
use of repeaters, to eliminate or substantially reduce said significant gaps in lieu of the
proposed facility. The applicant shall demonstrate that there is no feasible site or sites to
provide coverage. The analysis shall also consider that the applicant may need to provide
multiple, less obtrusive sites outside of a residential zone district or PUD with residential
uses as opposed to one (1) site in the residential zone district to provide the same level of
coverage. For each alternative location so identified, the applicant shall describe the type of
facility and design measures that could be used at that location so as to minimize negative
resource impacts (e.g., the use of stealth camouflaging techniques).
(2) Evaluate the potential for collocation with existing wireless communication facilities as
a means to eliminate or substantially reduce the significant gap(s) in the applicant carrier’s
network intended to be eliminated or substantially reduced by the proposed facility.
(3) Compare, across the same set of evaluation criteria and to similar levels of description
and detail, the relative merits of the proposed site with those of each of the identified
technically feasible alternative locations and facility designs. Such comparison analysis
shall rank each of the alternatives (i.e., the proposed location/facility and each of the
technically feasible location/design alternatives) in terms of impacts (i.e., from least to
most environmentally damaging), and shall support such ranking with clear analysis and
evidence.
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(4) Include photo-simulations of each of the alternatives (i.e., the proposed location/facility
and each of the technically feasible location/design alternatives).
(5) Document good faith and diligent attempts to rent, lease, purchase or otherwise obtain
the use of at least two (2) of the viable, technically feasible alternative sites which may be
environmentally equivalent or superior to the proposed project site. The decision making
body may determine that an alternative site is not viable if good faith attempts to rent,
lease, purchase or otherwise obtain the site have been unsuccessful.
(i) Security Plan. A plan for safety/security considerations, consistent with section 30.35.19
(NIER exposure). A detailed description of the proposed measures to ensure that the public
would be kept at a safe distance from any NIER transmission source associated with the
proposed wireless communication facility, consistent with the NIER standards of the FCC or any
potential future superseding standards, must be submitted as part of the application. The
submitted plans must also show that the outer perimeter of the facility site (or NIER hazard zone
in the case of rooftop antennas) will be posted with bilingual NIER hazard warning signage that
also indicates the facility operator and an emergency contact. The emergency contact shall be
someone available on a twenty-four (24) hour a day basis who is authorized by the applicant to
act on behalf of the applicant regarding an emergency situation. For the protection of emergency
response personnel, each wireless communication facility shall have an on-site emergency shut-
off switch to de-energize all RF-related circuitry/componentry at the base station site (including
a single shut-off switch for all facilities at a collocation site), or some other type of emergency
shut-off by emergency personnel acceptable to the local fire chief, unless the applicant can prove
that the FCC public exposure limits cannot be exceeded in the vicinity of the proposed facility,
even if firefighters or other personnel work in close proximity to the antenna(s) or other RF
radiation emitting devices/components.
(j) Applications in Residential and PUDs with Residential Uses. For applications for new
wireless communication facilities in any residential zone districts or PUDs with residential uses,
the applicant must also disclose:*
(1) Number, type(s), manufacturer(s) and model number(s) for all antennas and other RF-
generating equipment.
(2) For each antenna, the antenna gain and antenna radiation pattern.
(3) Number of channels per antenna, projected and maximum.
(4) Power input to each antenna.
(5) Power output, in normal use and at maximum output for each antenna and all antennas
as an aggregate.
(6) Output frequency of the transmitter(s).
(k) Fees. Payment of all filing fees and fees for processing and monitoring the permit application
as established in the comprehensive fee schedule.
(l) NIER Report. Submission of a NIER (nonionizing electromagnetic radiation calculations)
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report in accordance with section 30.35.19.
(m) Independent Review. The planning manager is explicitly authorized, at his/her discretion, to
employ on behalf of the city an independent technical expert to review any technical materials
submitted including, but not limited to, those required under this article and in those cases where
a technical demonstration of unavoidable need or unavailability of alternatives is required. The
applicant shall pay all the costs of such review including any administrative costs incurred by the
city at the time the application is filed.
(n) Additional Information. The planning manager may require the applicant to submit additional
documentation prepared at the applicant’s cost, which the planning manager deems necessary to
evaluate the proposed site or facility, including, but not limited to, identifying locations where a
facility can be installed without prohibiting the service provider’s ability to provide its
telecommunications service, information concerning the applicant’s network of
telecommunications facilities, site selection criteria and radio frequency emission coverage. The
planning commission may also require the service provider submit additional information based
on issues raised at the public hearing that are likely to be of significant concerns to the
community.
30.35.17 General requirements.
The following shall be met for all telecommunication facilities in all zoning districts:
(a) Compliance with Plans and Policies. Any applicable general plan goals, objectives, programs
and policies, specific plan, PUD standards, design guidelines, and the permit requirements of any
agencies which have jurisdiction over the project.
(b) Compliance with the Gilroy Municipal Code and Zoning Ordinance. All the requirements
established by the Gilroy Municipal Code and Gilroy Zoning Ordinance which are not in conflict
with the requirements contained in this article.
(c) Compliance with the Uniform Codes. Requirements of the Uniform Building Code, National
Electrical Code, Uniform Plumbing Code, Uniform Mechanical Code, and Uniform Fire Code,
as amended, where applicable.
(d) Compliance with Easements or Other Restrictions. Any applicable easements or similar
restrictions on the subject property.
(e) Compliance with the Setbacks. Wireless telecommunication facilities shall not be located in
any required yard setback area of the zoning district in which it is located with the exception of
possible encroachment of the antenna array into airspace over said setback, unless exempted
from these requirements pursuant to section 30.35.13. All setbacks shall be measured from the
base of the tower or structure closest to the applicable property line or structure.
(f) Compliance with FCC Rules. All telecommunication facilities shall comply at all times with
all FCC rules, regulations, and standards.
(g) Compliance with FAA Rules. All wireless telecommunication facilities shall comply with all
Federal Aviation Administration requirements.
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(h) Aviation Safety. No wireless communication facility shall be installed within the safety zone
or runway protection zone of any airport, airstrip or helipad within or adjacent to the city unless
the airport owner/operator indicates that it will not adversely affect the operation of the airport,
airstrip or helipad. In addition, no wireless communication facility shall be installed at a location
where special painting or lighting will be required by the FAA regulations unless the applicant
has demonstrated to the planning manager that the proposed location is the only technically
feasible location for the provision of personal wireless services as required by the FCC.
(i) Compliance with the Security Program. All telecommunication facilities shall maintain in
place a security program, when determined necessary by and subject to the review and approval
of the police chief, that will prevent unauthorized access and vandalism.
(j) Compliance with the Height of Satellite Dish and Parabolic Antennas. Satellite dish and
parabolic antennas shall be situated as close to the ground as possible to reduce visual impact
without compromising their function.
(k) Impact on Parking. Installation of the wireless telecommunication facilities shall not reduce
the required parking on the site.
(l) Stealth Requirements. Wireless telecommunications facilities that are proposed in residential
zone districts or PUDs with residential uses shall use stealth techniques to minimize the visual
impact of the telecommunication facility from all surrounding locations.
(m) Access Control. In addition to providing visual screening, each antenna site shall be required
to provide warning signs, fencing, anticlimbing devices, or other techniques to control access to
the facilities in order to prevent unauthorized access and vandalism. The use of fencing shall not
necessarily add to the visual impact of the facility, and the design of the fencing and other access
control devices shall be subject to the planning manager or planning commission review and
approval, whichever is applicable. Pursuant to subsection (i) of this section, the police chief shall
review and approve the type of anticlimbing device.
(n) Telecommunication Facilities—Critical Disaster Response Facility. All wireless
telecommunication facilities providing service to the government and general public shall be
designed to survive a natural disaster without interruption of operation. To this end, all the
following measures shall be implemented:
(1) The telecommunication tower when fully loaded with antennas, transmitters, and other
equipment and camouflaging shall be designed to withstand the forces expected during the
“maximum credible earthquake.” All equipment mounting racks and equipment used shall
be anchored in such a manner that such a quake will not tip them over, throw the
equipment off its shelves, or otherwise act to damage it.
(2) All connections between various components of the facility and with necessary power
and telephone lines shall be protected against damage by fire, flooding, and earthquake.
(3) Measures shall be taken to keep the facility in operation in the event of a disaster,
including installation of backup generators.
(4) Demonstration of compliance with these requirements shall be provided via a
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certification on the plans signed by a structural engineer or other appropriate professional
licensed by the State of California.
(o) Length of Permit.
(1) Use permits and architectural and site review permits for all wireless
telecommunication facilities shall expire ten (10) years after permit approval. An approval
may be extended administratively from the initial approval date for a subsequent ten (10)
years and may be extended by the planning manager every ten (10) years thereafter upon
verification of the wireless service provider’s continued compliance with the findings and
conditions of approval under which the application was originally approved. Costs
associated with the review process shall be borne by the wireless service provider. The
planning manager may schedule a public hearing at which the planning commission may
deny the renewal of an approval if they find that:
a. The report showing that the wireless telecommunication service facility complies
with the current FCC radio frequency standards, as required in section 30.35.16(b)(5),
has not been submitted to the planning division.
b. The wireless telecommunication service facility fails to comply with the
requirements of this article as they exist at the time of renewal, and the wireless
service provider has failed to supply assurances acceptable to the planning manager
that the facility will be brought into compliance within ninety (90) days.
c. The wireless telecommunication service provider has failed to comply with the
conditions of approval imposed.
d. The wireless telecommunication service facility has not been properly maintained
in accordance with section 30.35.22.
e. The wireless telecommunication service provider has not agreed in writing to
upgrade the wireless telecommunication service facility within six (6) months to
minimize the facility’s adverse visual impact to the greatest extent permitted by the
technology that exists at the time of renewal. The planning manager shall determine if
a new technology shall further minimize a facility’s adverse visual impact and if a
facility shall be required to be upgraded. A wireless telecommunication service
facility shall not be upgraded if it continues to comply with the requirements of this
article, as they exist at the time of renewal.
f. Notwithstanding the foregoing, no public hearing to schedule a denial of an
extension pursuant to this article shall be calendared until the planning manager has
first provided a written notice to the wireless telecommunication service provider
including with reasonable specificity: (1) the nature of the deficiency or violation; (2)
a reasonably ascertainable means to correct such deficiency or violation; and (3) a
reasonable opportunity to cure the same if the deficiency or violation is curable, which
time period in no event shall be less than thirty (30) days from the date of notification
or such lesser period as may be warranted by virtue of a public emergency.
(2) If an approved wireless telecommunication facility meets the requirements of this
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article, but it is no longer allowed in its applicable zoning district, the wireless service
facility shall be permitted to remain for ten (10) years from the date the facility became a
nonconforming use in the zone district, unless the owner of the facility can prove to the
satisfaction of the city that a longer period of time is required to fully amortize the
investment in the existing structure.
(3) A nonconforming personal wireless service facility shall not be altered or modified
unless approved by the planning manager subject to a determination that the alteration or
modification will cause the personal wireless service facility to be in greater conformance
with this article.
(4) The planning manager’s decision to deny a renewal may be appealed as described in
section 30.35.24.
(5) At the planning manager’s request, the personal wireless service provider shall provide
a written summary certifying the commencement date and expiration date of any lease,
license, property right, or other use agreement for the personal wireless service facility,
including any options or renewal terms contained therein.
(6) An approval for a wireless telecommunication service facility may be modified or
revoked by the planning commission as described in section 30.35.26.
(p) FCC and Other Agency Standards. All towers must meet or exceed current standards and
regulations of the FCC and any other agency of the federal government with the authority to
regulate towers and antennas. If such standards and regulations are changed, then the owners of
the towers and antennas governed by this article shall bring such towers and antennas into
compliance with such revised standards and regulations within six (6) months of the effective
date of such standards and regulations, unless a more stringent compliance schedule is mandated
by the controlling federal agency. Failure to bring towers and antennas into compliance with
such revised standards and regulations shall constitute grounds for the removal of the tower or
antenna at the owner’s expense.
(q) Security Requirement. Prior to issuance of any permits for new wireless telecommunications
facilities, or prior to renewing a conditional use permit or architectural and site review permit for
an existing wireless telecommunications facility, the applicant shall provide a bond or an
irrevocable letter of credit that explicitly covers the full life of the wireless telecommunications
facility or other reasonable form of security, satisfactory to the city attorney, in an amount
reasonably sufficient to cover the cost of removal, for the removal of the facility in the event that
its use is abandoned or its conditional use permit or architectural and site review permit expires
or is terminated and the equipment is not voluntarily removed within thirty (30) days of
termination of the facility operations.
(r) Cessation of Operations.
(1) Within thirty (30) days of cessation of operations of any wireless telecommunications
facility approved pursuant to this article, the operator shall notify the planning manager in
writing. The permit for said wireless telecommunications facility shall be deemed lapsed
and of no further effect six (6) months thereafter unless:
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a. The planning manager has determined that the same operator resumed operation
within six (6) months of the notice, or
b. The city has received an application to transfer the permit to another operator.
(2) No later than thirty (30) days after a permit has lapsed under the preceding subsection,
the operator shall remove all wireless telecommunication facilities from the site. If the
operator fails to do so, the property owner shall be responsible for removal. The property
owner shall be entitled to reimbursement for the cost of removal from any bond or other
assurances provided by the operator pursuant to the requirements of subsection (q) of this
section. If such facilities are not removed, the site shall be deemed to be a nuisance, and the
city may call the bond or letter of credit to pay for removal of the facilities and remediation
of the site.
(3) Failure to inform the planning manager of cessation of operations of any existing
facility shall constitute a violation of the Zoning Ordinance and be grounds for:
a. Revocation or modification of the permit;
b. Calling of any bond or other assurance; and/or
c. Removal of the facilities.
(s) Nonconforming Wireless Telecommunication Facilities.
(1) A lawfully established wireless telecommunication facility that is was in operation on
December 11, 2003, the effective date of the ordinance codified in this article when this
Ordinance was originally codified, but did not conform to the provisions of the Ordinance
shall be deemed a legal nonconforming use, provided it did not substantially change its
lawfully established base station, physical configuration, location and/or use and shall be
allowed to continue operation for a period of ten (10) years following the effective date of
the original Ordinance, unless the owner of the facility can prove to the satisfaction of the
City that a longer period of time is required to fully amortize the investment in the existing
structure.
(2) A lawfully established wireless telecommunication facility that is in operation on the
effective date of Ordinance 2017-__, but no longer conforms to the provisions of this
Ordinance shall be deemed a legal nonconforming use, provided it does not substantially
change its use and shall be allowed to continue operation for a period of ten (10) years,
following the effective date of Ordinance 2017-__ ,unless the owner of the facility can
prove to the satisfaction of the city that a longer period of time is required to fully amortize
the investment in the existing structure. The following characteristics are among those that
create an increase of intensity of use and/or an expansion of use:
1) Expand or enlarge the equipment floor area or size;
2) Increase the size, number or height of any antennae or related facilities;
3) Make a change to the radio frequency field;
4) Increase the power rating of any of the equipment;
5) Increase the electromagnetic radiation emissions; or
6) Require a modification to the facility’s existing FCC license.
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Any increase in intensity of use or expansion in size of a facility shall require permit pursuant to
section 30.35.14 (Permits required).
(t) Interference. All personal wireless service facilities shall be operated in a manner which
complies with the Federal Communications Commission’s regulations regarding signal
interference.
(u) Advertising. No advertising shall be placed on personal wireless service facilities.
Minor Modifications. Minor Modifications to personal wireless service facility equipment
design, location, height, and other elements may be allowed, subject to the approval of the
planning manager, if such modifications are in keeping with the architectural statement and
layout design of the original approval, and meet the requirements of this article.
Section 30.35.18 Modifications Constituting a “Substantial Change” Structural, design and
environmental standards.
.
For the purpose of implementing Section 30.35.17(s) Nonconforming Wireless
Telecommunication Facilities, above, and Section 30.35.19(d) Height, below, the following
definition of “substantial change” shall refer to a single change, or a series of changes over time
(whether made by the same or different entities) viewed against the baseline conditions for the
wireless tower or base station that would have any of the effects described below:
1. Wireless tower located outside the public right-of-way:
a. Height. The proposed collocation or modification would increase the height more
than 10 percent, or the height of one additional antenna array would be more than
20 feet above the height of the nearest existing antenna (whichever is greater);
and
b. Width. The proposed collocation or modification would protrude from the edge of
the tower either more than 20 feet, or more the width of the tower structure at the
level of the existing appurtenance, whichever is greater.
2. Wireless tower located in the public right-of-way:
a. Height. The proposed collocation or modification would increase the height more
than 10 percent or 10 feet above the originally approved height (whichever is
greater); and
b. Width. The proposed collocation or modification would protrude from the edge of
the originally approved structure by more than six feet.
3. Base station wherever located:
a. Height. The proposed collocation or modification would increase the height of the
base station more than 10 percent or 10 feet above the originally approved height
(whichever is greater); and
b. Width. The proposed collocation or modification would protrude from the edge of
the originally approved base station structure by more than six feet.
4. Additional equipment cabinets. The proposed collocation or modification would involve
adding more than the standard number of new equipment cabinets for the technology
involved, but in no event shall exceed four new equipment cabinets.
5. Work outside existing boundaries. A proposal that includes excavation or development of
equipment outside the boundaries of the controlled, leased, or owned property
surrounding the wireless tower and base station and any access or utility easements
related to the site.
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6. Change in the approved appearance. A proposal to alter or expand the exterior of any
wireless communication facility or base station that was originally approved as stealth or
camouflaged that changes the facility in a manner that it shall no longer be considered
stealth or camouflaged.
7. Violation of condition of approval. The proposed collocation or modification would
violate an existing condition of approval, unless the noncompliance is due to an increase
in height, increase in width, addition of cabinets, new excavation, or aesthetic change that
does not exceed the corresponding “substantial change” thresholds identified in
Subparagraphs 1 through 6 above with respect to a wireless tower or base station.
8. Site alterations. A proposal that would alter required access, parking, or landscaping from
that shown on the originally approved site plans.
9. Replacement of facility. A proposal to replace the wireless tower or foundation.
10. Violation of regulations. A proposal to alter the width, bulk, or arrangement of a wireless
communication facility that may violate any law, rule, regulation, or other requirement
intended to protect public health and safety.
30.35.19 Structural, design and environmental standards.
(a) Structural Requirements. A building permit shall be required for the construction, installation,
repair or alteration of any support structure for communication equipment.
(b) Basic Tower and Building Design. All telecommunication facilities, except exempt facilities
as defined in section 30.35.13 shall be designed to blend into the surrounding environment to the
greatest extent feasible. To this end, all of the following measures shall be implemented:
(1) Telecommunication towers shall be constructed out of metal or other nonflammable
material and shall be painted a color approved by the decision making body, unless the
color or materials are specifically conditioned by the city to be otherwise;
(2) All ground-mounted telecommunication towers shall be self-supporting monopoles
except where satisfactory evidence is submitted to the appropriate decision-making body
that a guyed/lattice tower is required;
(3) Satellite dishes other than microwave dishes shall be of mesh construction, except
where technical evidence acceptable to the appropriate decision-making body is submitted
showing that this is infeasible;
(4) Telecommunication support facilities (i.e., vaults, equipment rooms, utilities, and
equipment enclosures) shall be constructed out of non-reflective materials (visible exterior
surfaces only) and shall be placed in underground vaults to the extent possible;
(5) Telecommunication support facilities shall be no taller than one (1) story (fifteen (15)
feet) in height, shall be designed to blend with existing architecture in the area or shall be
screened from sight by mature landscaping, and shall be located or designed to minimize
their visibility;
(6) All buildings, poles, towers, antenna supports, antennas, and other components of each
telecommunications facility shall be initially painted and thereafter repainted as necessary
with a “flat” paint. The color shall be selected by the appropriate decision-making body;
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(7) Wireless communication facilities proposed for visually prominent ridgeline, hillside or
hilltop locations shall be discouraged and, if deemed necessary, be sited and designed to be
as visually unobtrusive as possible. Said wireless telecommunication facilities should be
sited so the top of the proposed tower/facility is below any ridgeline when viewed from
public roads in the vicinity. If the tower must extend above a ridgeline, the applicant must
camouflage the tower by utilizing stealth techniques and hiding it among surrounding
vegetation; and
(8) The city shall have the authority to require special stealth design techniques for
telecommunication facilities where findings of particular sensitivity are made (e.g.,
proximity to historic or aesthetically significant structures, residential uses, views and/or
community features).
(c) Location. All telecommunication facilities shall be located so as to minimize their visibility
and the number of distinct facilities present. To this end all of the following measures shall be
implemented for all telecommunications facilities, unless exempted from these measures
pursuant to section 30.35.13:
(1) Proposed telecommunication towers shall be set back at a minimum of the tower
overall height from all property lines and/or a distance consistent with the required yard
setbacks of the particular zone district, whichever is most restrictive. Guy wire anchors
shall be set back at least twenty (20) feet from any property line. This section shall not
apply to building-mounted antennas attached to existing facilities, but it shall apply to any
related facilities associated with such antennas. This requirement may does not apply to
antennas proposed to be co-located on existing towers or utility poles (e.g., microcell sites,
DAS, small cells), nor to underground equipment shelters, located in public right-of-way, if
it would prohibit use of the proposed facility site.
(2) Location Preference. Location preference for wireless telecommunication facilities
shall be given to:
a. Industrial or commercial sites;
b. Facilities attached or sited adjacent to existing structures. Appropriate types of
existing structures may include, but are not limited to: buildings, telephone and utility
poles, signage and sign standards, light standards, and roadway overpasses; and
c. Sites that are not highly visible from adjacent roadways.
(3) Preferred Antenna Siting and Mounting Techniques. The following antenna and
equipment siting and mounting techniques are preferred:
a. Facade-mounted antennas;
b. Roof-mounted antennas that are not visible to the public; and
c. Monopole antennas that utilize stealth or camouflaging techniques.
(d) Height. The height of a telecommunication tower shall be measured from the natural
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undisturbed ground surface below the center of the base of said tower to the top of the tower
itself or, if higher, to the tip of the highest antenna or piece of equipment attached thereto. In the
case of building-mounted towers, the height of the tower includes the height of the portion of the
building on which it is mounted. In the case of “crank-up” or other similar towers whose height
can be adjusted, the height of the tower shall be the maximum height to which it is capable of
being raised.
Towers proposed in the commercial, industrial, public facilities and residential zone districts
shall meet the height limitation for the underlying zone district. Increases to the height limitation
may be approved administratively with the architectural and site review application if the
modification height increase does not substantially exceed twenty percent (20%) of the allowable
height in the commercial zone districts and thirty Percent (30%) of the allowable height in the
industrial zone districts change the physical dimensions of a telecommunications tower or base
station. Any applications for towers of a height more than the allowed height for structures in the
zoning district must include a written justification proving the need for a tower of that height and
the absence of viable alternatives that would have less visual impact. Tower height increases
beyond the permitted maximum height percentages stated in this subsection shall require a
variance approval pursuant to section 30.50.20(a).
(e) Lighting. Any exterior lighting, except as required for FAA regulations for airport safety,
shall be manually operated and used only during night maintenance checks or in emergencies.
The lighting shall be constructed or located so that only the intended area is illuminated and off-
site glare is fully controlled.
(f) Roads and Parking. Except exempt facilities as defined in section 30.35.13, all
telecommunication facilities shall be served by the minimum roads and parking areas necessary
and shall use existing roads and parking areas whenever possible.
(g) Vegetation Protection and Facility Screening.
(1) Except exempt facilities as defined in section 30.35.13, all telecommunications
facilities shall be installed in such a manner so as to maintain and enhance existing native
vegetation and shall include suitable mature landscaping to screen the facility, where
necessary. For purposes of this section, “mature landscaping” shall mean trees, shrubs or
other vegetation of a size that will provide the appropriate level of visual screening
immediately upon installation.
(2) No actions shall be taken subsequent to project completion with respect to the
vegetation present that would increase the visibility of the facility itself or the access road
and power/telecommunication lines serving it. The owner(s)/operator(s) of the facility shall
be responsible for maintenance and replacement of all required landscaping.
(h) Fire Prevention. All telecommunication facilities shall be designed and operated in such a
manner so as to minimize the risk of igniting a fire or intensifying one that otherwise occurs. To
this end all of the following measures shall be implemented for all telecommunication facilities,
when determined necessary by the fire chief, unless exempted from these measures by section
30.35.13:
(1) At least one (1) hour fire resistant interior surfaces shall be used in the construction of
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all buildings;
(2) Monitored automatic fire extinguishing systems approved by the fire chief shall be
installed in all equipment buildings and enclosures;
(3) Rapid entry (KNOX) systems shall be installed as required by the fire chief;
(4) Type and location of vegetation, screening materials and other materials within ten (10)
feet of the facility and all new structures, including telecommunication towers, shall have
review for fire safety purposes by the fire chief. Requirements established by the fire chief
shall be followed; and
(5) All tree trimmings and trash generated by construction of the facility shall be removed
from the property and properly disposed of prior to building permit finalization or
commencement of operation, whichever comes first.
(i) Environmental Resource Protection. All telecommunication facilities shall be located so as to
minimize the effect on environmental resources. To that end, all facilities deemed to be a project
shall be subject to review for environmental considerations.
(j) Noise and Traffic. All telecommunication facilities shall be constructed and operated in such
a manner as to minimize the amount of disruption caused to nearby properties. To that end, all
the following measures shall be implemented for all telecommunication facilities, unless
exempted from these measures by section 30.35.13.
(1) Outdoor noise producing construction activities shall only take place between the hours
of 8:00 a.m. and 6:00 p.m. unless allowed at other times by the planning manager or the
planning commission; and
(2) Backup generators shall only be operated during power outages and for testing and
maintenance purposes. If the facility is located within one hundred (100) feet of a
residential dwelling unit, noise attenuation measures shall be included to reduce noise
levels at the facility to a maximum exterior noise level of sixty (60) Ldn at the property line
and a maximum interior noise level of forty-five (45) Ldn. Testing and maintenance shall
only take place on weekdays between the hours of 8:00 a.m. and 6:00 p.m.
(k) Visual Compatibility. Facility structures and equipment shall be located, designed and
screened to blend with the existing natural or built surroundings, as well as any existing
supporting structures, so as to reduce visual impacts to the extent feasible. Facilities that are
proposed in residential zone districts or in PUDs with residential uses shall be designed to be
compatible in scale, mass and height with the character of surrounding uses through camouflage
or stealth techniques that will minimize their visual impacts.
30.35.20 NIER exposure.
(a) Public Health. No telecommunication facility shall be located or operated in such a manner
that it poses, either by itself or in combination with other such facilities, a potential threat to
public health. To that end, no telecommunication facility or combination of facilities shall
produce at any time power densities that exceed the FCC-adopted standard for human exposure,
as amended, or any more restrictive standard subsequently adopted or promulgated by the city,
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county, the State of California, or the federal government.
(b) Initial Compliance with NIER Levels. Initial compliance with this requirement shall be
demonstrated for any facility through submission, at the time of application for the necessary
permit or entitlement, of NIER (nonionizing electromagnetic radiation calculations) specifying
NIER levels where the levels produced are projected to be highest. If these calculated NIER
levels exceed eighty percent (80%) of the NIER standard established by this article, the applicant
shall hire a qualified electrical engineer licensed by the State of California to measure NIER
levels at said location after the facility is in operation. A report of these measurements and the
findings with respect to compliance with the established NIER standard shall be submitted to the
planning manager. NIER monitoring shall to be conducted utilizing the monitoring protocol
described in section 30.35.11. Said facility shall not commence normal operations until it
complies with this standard. Proof of said compliance shall be a certification provided by the
engineer who prepared the original report. In order to assure the objectivity of the analysis, the
city may require, at the applicant’s expense, independent verification of the results of the
analysis. Because of their intermittent nature, facilities solely for personal use, such as citizens
band radio antenna or antenna operated by a federally licensed amateur radio operator as part of
the amateur radio service, or for the incidental use of a co-located commercial activity, shall be
required to comply with applicable FCC rules for NIER emissions, but they shall be routinely
exempt from the submission requirements in this article.
(c) Ongoing Compliance with NIER Levels. Within ninety (90) days of operation, every
telecommunication facility and all broadcast radio and television facilities shall demonstrate
continued compliance with the NIER standard established by this article. Every two (2) years a
report listing each transmitter and antenna present at the facility and the effective radiated power
radiated shall be submitted to the planning manager. If either the equipment or effective radiated
power has changed, calculations specifying NIER levels where said levels are projected to be
highest shall be prepared. NIER calculations shall also be prepared every time the adopted NIER
standard changes. If calculated levels in either of these cases exceed eighty percent (80%) of the
standard established by this article, the operator of the facility shall hire a qualified electrical
engineer licensed by the State of California to measure the actual NIER levels produced. A
report of these calculations, required measurements, if any, and the author’s/engineer’s findings
with respect to compliance with the current NIER standard shall be submitted to the planning
manager within ninety (90) days of facility approval and every two (2) years thereafter. In the
case of a change in the standard, the required report shall be submitted within ninety (90) days of
the date said change becomes effective.
(d) Failed Compliance. Failure to supply the required reports or to remain in continued
compliance with the NIER standard established by this article shall be grounds for revocation of
the major and minor development permit or other entitlement.
30.35.210 Required findings for wireless telecommunication facilities.
In order to grant any permit for a wireless telecommunication facility, the approving body shall
make the required permit findings of section 30.50.30(b) (Conditional Use Permit—Application)
as well as the following findings:
(a) That either: (1) the development of the proposed wireless telecommunications facility as
conditioned will not significantly affect any visual resources, environmentally sensitive habitat
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and/or other significant City of Gilroy resources, including agricultural, open space, and
community character resources; or (2) there are no other environmentally equivalent and/or
superior and technically feasible alternatives to the proposed wireless telecommunications
facility as conditioned (including alternative locations and/or designs) with less visual and/or
other resource impacts and the proposed facility has been modified by condition and/or project
design to minimize and mitigate its visual and other resource impacts.
(b) That the site is adequate for the development of the proposed wireless telecommunications
facility and, for sites located in residential zoning districts or PUDs with residential uses, that the
applicant has demonstrated that there are not environmentally equivalent or superior and
technically feasible: (1) alternative sites outside residential zone districts or PUDs with
residential uses; and/or (2) alternative designs for the proposed facility as proposed and
conditioned.
(c) That the subject property upon which the wireless telecommunications facility is to be built is
in compliance with all rules and regulations of the City of Gilroy, including, but not limited to,
zoning uses, subdivisions and any other applicable provisions of this article, and that all zoning
violations have been abated and abatement costs, if any, have been paid.
(d) That the proposed wireless communication facility as conditioned is in compliance with all
FCC, FAA and California PUC standards and requirements.
Any decision to deny a permit for a wireless communication facility shall be in writing and shall
specifically identify the reasons for the decision.
30.35.221 Implementation and monitoring costs.
The wireless telecommunications service provider or its successors shall be responsible for the
payment of all reasonable costs associated with the monitoring of the conditions of approval
contained in this authorization, including costs incurred by the city, the office of the city attorney
or any other appropriate city department or agency. The planning division shall collect such costs
on behalf of the city.
30.35.232 Operation and maintenance standards.
All wireless telecommunication facilities shall comply at all times with the following operation
and maintenance standards:
(a) All facilities and related equipment, including lighting, fences, shields, cabinets, and poles,
shall be maintained in good repair, free from trash, debris, litter and graffiti and other forms of
vandalism, and any damage from any cause shall be repaired as soon as reasonably possible so as
to minimize occurrences of dangerous conditions or visual blight. Graffiti shall be removed from
any facility or equipment as soon as practicable pursuant to section 12.5.1.
(b) Each facility which contains trees, foliage or other landscaping elements, whether or not used
as screening, shall be maintained in good condition at all times, and the owner or operator of the
facility shall be responsible for replacing any damaged, dead or decayed landscaping promptly.
(c) Each facility for which a landscape plan was required and approved shall maintain the facility
and site in accordance with the approved landscape plan at all times. Amendments or
modifications to the plan shall be submitted for approval to the planning manager.
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(d) Each facility shall be operated in such a manner so as to minimize any possible disruption
caused by noise. Backup generators shall only be operated during periods of power outages, and
shall not be tested on weekends or holidays, or between the hours of 6:00 p.m. and 8:00 a.m. At
no time shall equipment noise from any source exceed an exterior noise level of sixty (60) dB at
the property line.
(e) Each owner or operator of a facility shall routinely and regularly inspect each site to ensure
compliance with the standards set forth in this article.
(f) Each owner or operator of a wireless telecommunications facility shall provide signage
identifying the name and phone number of a party to contact in event of an emergency. The
design, materials, colors, and location of signs shall be subject to design review. The signage
shall be attached to the base of any utility pole or light standard to which microcells are affixed.
30.35.243 Telecommunications Act exception procedures.
If the application of the requirements or limitations set forth in this article would have the effect
of violating the Federal Telecommunications Act as amended, the approving body shall grant a
Telecommunications Act exception to allow an exception to the offending requirement or
application. The applicant shall have the burden of proving that application of the requirement or
limitation would violate the Federal Telecommunications Act, and that no alternatives exist,
which would render the approval of a Telecommunications Act exception unnecessary. (Ord. No.
2013-08, § 2 (Exh. A), 8-5-13)
30.35.254 Appeal procedures.
Appeals to the denial or conditional approval of a wireless telecommunication application shall
be filed in accordance with section 30.51.50.
30.35.265 Transfer of operation.
Any carrier/service provider authorized by the planning manager or by the planning commission
to operate a specific wireless telecommunications facility may assign the operation of the facility
to another carrier licensed by the FCC for that radio frequency; provided, that such transfer is
made known to the director in advance of such operation and all conditions of approval for the
subject installation are carried out by the new carrier/service provider. However, the
carrier/service provider may, without advance notification, transfer operations of the facility to
its general partner or any party controlling, controlled by or under common control with the
carrier/service provider licensed by the FCC for that radio frequency.
30.35.276 Revocation of permit.
Failure to Comply with Any Condition Basis for Revocation. The wireless telecommunications
service provider or its successors shall comply fully with all conditions specified in this
authorization. Failure to comply with any condition shall constitute grounds for revocation of the
permit. The planning manager shall notify the service provider that a violation exists and request
compliance and a schedule for said compliance. Upon failure to comply, or if the schedule for
compliance will not bring the use into compliance in a reasonable amount of time, the planning
manager may schedule a public hearing before the planning commission to receive testimony
and other evidence relating to the violation of a condition of the authorization of the use of the
facility, and finding that violation, the commission may modify or revoke the permit. Such
revocation by the planning commission may be appealed to the city council. All hearings shall be
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noticed and conducted in accordance with the proceedings set forth in section 30.51.60.
30.35.287 Indemnity and liability.
(a) The personal wireless service provider shall defend with counsel of city’s choice, indemnify
and hold harmless the city or any of its boards, commissions, agents, officers, and employees
from any liability, claim, action, regulation, order or proceeding against the city, its boards,
commissions, agents, officers, or employees to attack, modify, set aside, void, or annul the
approval of the project, unless such liability, claim, action, regulation, order or proceeding results
from the city’s negligence or willful misconduct. The city shall promptly notify the personal
wireless service providers of any such claim, action, regulation, order or proceeding. Nothing
contained in this subsection shall prohibit the city from participating in a defense of any claim,
action, or proceeding of the city.
(b) Personal wireless service providers shall be strictly liable, and shall defend with counsel of
city’s choice, indemnify and hold harmless the city, for any and all liability, claim, action,
regulation, order or proceeding alleging pollution or contamination arising from their personal
wireless service facilities within the city. This liability shall include cleanup, injury or damage to
persons or property. Additionally, personal wireless service providers shall be responsible for
any sanctions, fines, or other monetary costs or injunctive relief imposed upon the personal
wireless service provider or the city as a result of the release of pollutants from their operations.
(c) Personal wireless service providers shall be strictly liable, and shall defend with counsel of
city’s choice, indemnify and hold harmless the city, for any and all liability, claim, action,
regulation, order or proceeding alleging electromagnetic waves or radio frequency emissions
within the city in excess of the Federal Communications Commission’s standards. This liability
shall include cleanup, injury or damage to persons or property. Additionally, personal wireless
service providers shall be responsible for any sanctions, fines, or other monetary costs or
injunctive relief imposed upon the personal wireless service provider or the city as a result of the
release of pollutants from their operations.
SECTION II
That a new Section 15 is added to Article 35 of Chapter 30 of the Gilroy City Code to read as
follows:
30.35.15 Zoning Clearance
(a) Purpose and Intent
Zoning Clearance is the procedure used by the City to verify that a proposed land use or structure
complies with the list of uses allowed in the applicable zone and the development standards
applicable to the use or structure.
(b) Applicability/Permit Requirement
A Zoning Clearance is required for the alteration, construction, modification, or reconstruction of
a wireless telecommunication collocation facility per section 30.35.14(b).
(c) Review Authority
The Director may issue a Zoning Clearance only after confirming that the proposed land use
and/or structure is in full compliance with all of the applicable provisions of this Development
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Code.
(d) Review Procedures
(1) Director’s Responsibility. The Director shall issue the Zoning Clearance after first
determining that the request complies with provisions of the Development Code applicable
to the proposed land use or structure.
(2) Form of Approval. Approval shall be indicated on a form provided by the City.
(3) Appeal. An appeal of the Director’s decision may be brought pursuant to section
30.51.50.
SECTION III
That Gilroy City Code Section 30.45.10 is amended to read as follows:
30.45.10 Adherence to zoning regulations. No use shall be allowed or building permit
shall be issued for any use within any zoning district unless all building, site, parking,
landscaping and sign plans have been submitted and approved by the director of planning.
SECTION IV
If any section, subsection, subdivision, sentence, clause or phrase of this Ordinance is for any
reason held to be unconstitutional or otherwise void or invalid by any court of competent
jurisdiction, such decision shall not affect the validity of the remaining portions of this
Ordinance. The City Council hereby declares that it would have passed this Ordinance and each
section, subsection, subdivision, sentence, clause, or phrase thereof, irrespective of the fact that
any one or more sections, subsections, subdivisions, sentences, clauses, or phrases be declared
unconstitutional.
SECTION V
Pursuant to section 608 of the Charter of the City of Gilroy, this ordinance shall be in full force
and effect thirty (30) days from and after the date it is adopted.
PASSED AND ADOPTED this ___ day of _______, 2018, by the following roll call vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
APPROVED:
_________________________
Roland Velasco, Mayor
ATTEST:
_______________________________
Shawna Freels, City Clerk
8.B.a
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8.B.a
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Community Development
Department
7351 Rosanna Street, Gilroy, California 95020-61197
Telephone: (408) 846-0451 Fax (408) 846-0429
http://www.cityofgilroy.org
DATE: September 7, 2017
TO: Planning Commission
FROM: Stan Ketchum, Senior Planner
SUBJECT: Z 17-05(# 17080026]), Zoning Ordinance Amendment to Modify
Ch. 30.35 Wireless Telecommunication Facilities, Antennas and
Windmills.
1) Request: Z 17-05 (zone code amendment) proposes modifications to the Gilroy
City Code pertaining to Section 30 (Zoning Ordinance), which would be effective
citywide. Proposed text amendments to Section 30.35 Wireless
Telecommunications Facilities, Antennas and Windmills would bring the Zoning
Ordinance into conformance with federal legislation governing how local
jurisdictions regulate installation of wireless telecommunication facilities in public
right-of-way and on private property. Application filed by the City o f Gilroy,
Community Development Department, 7351 Rosanna Street, Gilroy, CA 95020.
2) Recommendation: Staff has analyzed the proposed project, and recommends
that the Planning Commission adopt a resolution recommending that the City
Council approve Zoning Code Amendment, Z17-05 as requested.
3) Environmental Assessment: Section 15061(b)( 3) of the California
Environmental Quality Act (CEQA) Guidelines, exempts from further environmental
review, those projects involving activities that can be seen with certainty to have no
possibility of causing a significant effect on the environment. All colocation
wireless telecommunications projects will be required to meet all relevant city
requirements prior to installation.
4) Background Information: Since the mid-1990’s, both Congress and the Federal
Communications Commission (FCC) have established extensive laws and
regulations that define the parameters by which local governments are allowed to
regulate installation of wireless telecommunications facilities in both public right-of-
way and on private property. Formation of these la ws has been driven by the
wireless industry with the intent to reduce and streamline the regulatory
requirements and facilitate the expedited deployment of the rapidly evolving
Kristi A. Abrams
DIRECTOR
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wireless technology. The primary demand for expanded wireless
telecommunication capacity is not wireless phones, but rather the exploding data
requirements of the “internet of things”, the proliferation of internet functions and
“apps” in almost everything we use, all of which generate and require data use and
storage capabilities.
The Telecommunications Act of 1996 (the Act) was the federal government’s first
effort to help create a foundation for the wireless communications industry that was
rapidly evolving. It contained provisions regarding the placement of towers and
other facilities for use in providing personal wireless services. The Act included the
following key provisions:
prohibited local governments from taking actions to discriminate against or
prohibit personal wireless facilities;
preempted local governments from regulating proposed wireless facilities
based on the environmental effects of radio frequency (RF) emissions; and
required local governments to act “within a reasonable time” on wireless
facility installation requests.
FCC Declaratory Ruling (2009) – This action stated that 90 days is a reasonable
timeframe for processing “collocation” applications (a collocation is defined as
adding equipment to an existing wireless facility) and 150 days is reasonable for
any project that is not a collocation application. These provisions have become
known as the “Shot Clocks,” in reference to the time limits established in various
sports e.g., to complete a play or take a shot. These timeframes are applied to the
discretionary applications, e.g., planning permits.
The Middle Class Tax Relief and Job Creation Act of 2012 contains legislation
known as Section 6409(a) that imposed significant revisions to the requirements
local governments must adhere to when processing applications for wireless
telecommunications facilities. The following excerpts from Section 6409(a) define
the fundamental legal changes instituted.
“.. a state or local government may not deny, and shall approve, any eligible
facilities request for modification of an existing wireless tower or base station that
does not substantially change the physical dimensions of such tower or base
station.”
An “eligible facilities request” is defined in Section 6409(a), and by the FCC as
“any request or modification of an existing wireless tower or base station that
does not substantially change the physical dimensions of such towers or base
stations, involving:
Collocation of new transmission equipment;
Removal of transmission equipment; or
Replacement of transmission equipment.
The definition of the term “substantial change” establishes the physical size,
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location and other parameters that a project must meet to qualify as an eligible
facilities request.
Finally, the FCC rules implementing Section 6409(a) add a requirement to approve
eligible facilities requests within 60 days of submittal.
California Assembly Bill AB57, passed in October, 2015, further limits local
government discretion in approval of wireless facilities. It states that a wireless
facility subject to Section 6409(a) that is an “eligible facility” and has not been
justifiably denied is “deemed approved” if he applicable FCC Shot Clock timeframe
has run out.
Zoning Ordinance Section 30.35 Wireless Telecommunication Facilities, Antennas and
Windmills was originally adopted in December, 2003. Prio r to that time, wireless
telecommunication facilities were regulated by the standard Zoning Ordinance
development provisions e.g., building setbacks and height, etc. There were no
provisions specifically addressing the unique characteristics and issues surrounding
wireless telecommunications towers and related facilities. The ordinance has only been
amended once, previously, to reflect a change in Federal law that requires a 10 -year
term for permits for wireless telecommunication facilities.
This ordinance revision is intended to address only those sections directly affected by
the changes in federal laws and FCC regulations. The comprehensive Zoning Code
Update, in progress, will undertake a more comprehensive review of all aspects of the
Zoning Ordinance.
5) Analysis
The proposed ordinance is provided as Attachment 1. The ordinance is intended to
achieve two primary objectives:
1. Establish that wireless telecommunication facilities including Distributed Area
Systems (multiple wireless antenna nodes attached to a centralized network) and
Small Cell Wireless Networks (multiple wireless antenna nodes that
independently receive and transmit the wireless signal to a small area of up to
approximately 1,500 feet) attached to city-owned facilities, e.g., street lights in
public right-of-way (ROW), are exempt from the requirements of Section 30.35
Wireless Telecommunications, Antennas and Windmills, due to the fact that such
systems require execution of a lease agreement with the city for use of the
facilities. Such a lease will incorporate all of the applicable requirements from
the Zoning Ordinance, eliminating the need to process discretionary permits for
such projects.
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2. Incorporate the above-referenced new federal legal requirements into the
ordinance.
The modifications included in the amended ordinance are described below:
30.35.11 Definitions (ord. pages 2 – 6)
Revised definitions for “base station” and “collocation” are provided to match those
included in the federal requirements. The definition of base station establishes the
range of locations that are eligible to host collocation facilities, including buildings or
other structures that were not built for the primary purpose of providing support for
wireless facilities. In addition, the existing definitions of Major- and Non-Major
Modifications are deleted due to their inconsistency with the other necessary
modifications.
30.35.13 Exemptions (ord. pages 7 – 9)
Subsection (a) (16) Added subsection to exempt Distributed Area Systems
(DAS)/Small Cell structures attached to city-owned facilities in public right-of-way – The
newest technology for wireless telecommunications equipment is known generally as
“small cell”, referring to the reduced size of the equipment and its significantly smaller
signal broadcast radius, commonly in the range of 500 – 1,500 feet. The smaller signal
radius requires much greater numbers of antennas to provide required coverage to an
area. Today, wireless companies are working in cities nation-wide installing such small
cell equipment on city facilities in public right-of-way, including street lights and traffic
signals. In 2013-14, Gilroy approved a DAS network that allowed antennae on ten city
street lights and seven PGE utility poles. Verizon is presently using this system. The
city is currently in discussions with Verizon to locate up to 70 small cell antennae on
street lights. The Gilroy City Code requires the wireless companies to enter into a lease
agreement with the city for the use of the city poles, including payment of rent. Such
agreements will include all of the siting, design and other requirements that would
otherwise be included in planning permits. As a result, these facilities in public right-of-
way will no longer require discretionary planning permits (e.g., Site and Architecture,
Conditional Use permits). They will still require Encroachment and Building Permits.
30.35.14 Permits required.
Added subsection (b) Collocation (ord. page 9). As described previously under
definitions, a Collocation consists of installing new equipment on “an existing tower or
base station . . .”. Such existing facilities, assuming they are legal, will have received
approval of previous discretionary permits in conformance with the Zoning Ordinance.
The typical collocation project involves either adding and/or replacing antennas and
associated equipment on existing poles or other structures in order to strengthen
signals, usually intended to support increased internet data demand. Most of the
existing wireless antennas throughout the city have been the subject of multiple
equipment upgrade projects in recent years to install updated technology. Such
projects qualify as collocations. This revision eliminates the requirement for a
discretionary permit (Architecture and Site Review/Conditional Use Permit) for
collocations and instead requires a new ministerial Zoning Clearance approval from
Planning, to be completed prior to issuance of the Building Permit. The Zoning
Clearance is described further below.
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The decision to eliminate the discretionary approval requirement is based on the
cumulative effects of the changes in federal law. The great majority of wireless projects
processed by the city qualify as eligible facilities requests and collocations (and are well
within the allowed parameters of “substantial change”). They typically contain very
similar components and consistently meet most, if not all the requirements of existing
Section 30.35. Section 6409(a) specifies that such projects must be approved within 60
days, and are deemed approved if not done so by the city within that timeframe. As a
result, staff is recommending eliminating the existing discretionary permit requirements
in favor of a ministerial review by planning staff prior to issuance of the building perm it
to ensure that the project meets the requirements of Section 30.35. In fact, there is
pending state legislation (SB 649) which may impose this and other requirements in the
near future.
Table 35.1 Required Permit Matrix (ord. page 11)_
This table identifies the level of discretionary review required for installation of wireless
telecommunication facilities in various zoning districts. It is modified to reflect the
requirement for a Zoning Clearance for collocation applications, as described above.
30.35.15 Pre-application. (ord. page 12)
This section is revised to distinguish between new wireless telecommunication facility
sites, for which two pre-application conferences with city staff are recommended, and
collocation projects for which one pre-application appointment is recommended. Such
meetings are not made mandatory in order to avoid challenges that they constitute the
start of the review process and, as such, trigger the start of the Shot Clock.
30.35.16 Minimum application requirements. (ord. page 12)
This section is revised to be consistent with the addition of Zoning Clearance
requirement for collocations (see below). It also reflects federal law stating that
collocation projects are not required to submit the following three permit application
requirements in the current ordinance: a Ten (10) Year Plan, analysis of cumulative
effects, and analysis of alternative sites
30.35.17 General Requirements. (ord. page 23)
Subsection (s) Nonconforming Wireless Telecommunication Facilities is revised to
accomplish the following two changes:
Incorporate the new provision from federal law establishing what constitutes a
“substantial change” of a facility. The verification of the nonconforming status of
a wireless facility now requires confirmation that the facility “did not substantially
change its lawfully established based station, physical configuration, location
and/or use”. See definition of substantial change, below.
Establish two critical dates for determination of nonconforming status of wireless
facilities:
(1) December 3, 2003, the date the Wireless Telecommunications Ordinance
was originally adopted, is the applicable date when determining if a use
inconsistent with a provision of the original ordinance can continue in
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operation for up to an additional 10 years.
(2) The date this ordinance revision becomes effective is the applicable date
when determining if a use inconsistent with a section of the current
ordinance revision can continue in operation for up to an additional 10
years.
Section 30.35.18 Modifications Constituting a “Substantial Change” (ord. page 24)
As noted above, the definition of the term “substantial change”, instituted by the FCC,
establishes the physical size, location and other parameters that a project must meet to
qualify as an eligible facilities request. The language from the FCC ruling identifies the
maximum amount of change, e.g., height, width, area of change, etc. beyond which a
project would be considered a substantial change. Collocation projects which do not
exceed the requirements of Section 30.35, none of which exceed the substantial
change limits, will qualify for the Zoning Clearance ministerial approval (see below).
30.35.19 Structural, design and environmental standards.
Amended Subsection (d) Height. The majority of projects in the recent past qualify as
collocations and meet the requirements of the Zoning Ordinance. However, a project
could exceed the height limit in the zoning district and remain within the parameters of
allowed substantial change (add up to 10% or 20 feet). This section addresses that
potential situation by allowing such projects to be approved through an architectural and
site review permit, as appropriate. The revised code language also states that height
increases beyond that permitted by this revision (i.e., beyond the limits of substantial
change) shall require approval of a variance.
ARTICLE XLV. GENERAL REGULATIONS – Section 30.45.15 Zoning Clearance
This section adds the new Zoning Clearance procedure to the Zoning Ordinan ce. A
Zoning Clearance will be used to verify that a proposed land use or structure complies
with the list of uses allowed in the applicable zone and the development standards
applicable to the use or structure. It is purposefully generic so that multiple types of
projects may be made subject to a Zoning Clearance in the future. At this time, only
wireless collocation projects will be subject to a Zoning Clearance.
6) General Plan Consistency: The proposed ordinance amendment supports the
following two General Plan Policies:
19.10 Provision of Utilities. Work with public, quasi-public and private utility
providers to ensure adequate levels of service to City residents.
19.12 New Technologies. Support implementation of new telecommunication
technologies (such as high-volume voice/data lines), recognizing the potential for
attracting new businesses, reducing vehicle trips (through telecommuting), and
meeting the changing communication needs of city residents.
7) Noticing: The public notice for this item, published in the Gilroy Dispatch on
August 24, 2017, meets the Government Code requirement for projects of citywide
importance. In addition, the Planning Commission public hearing packets are
available through the City's webpage prior to the scheduled meeting.
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8) Appeal Procedure: The Planning Commission's action is not final, but rather a
recommendation. As such, the matter will be considered by the City Council at a
later date.
Attachments:
1. Wireless Telecommunications Ordinance Amendments
2. PC Resolution for 9-7-17
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City of Gilroy
STAFF REPORT
Agenda Item Title: Adoption of an Ordinance of the City Council of the City of Gilroy to
Add to the Gilroy City Code Chapter 30, Article 54 Pertaining to the
Ministerial Approval of Accessory Dwelling Units and Amending the
Gilroy City Code, Chapter 30, Sections 30.2.20, 30.4.10, 30.4.20,
30.5.40, 30.11.10, 30.31.21, 30.39.10, and 30.39.30 (introduced
11/20/17 with a 4-3 vote; Council Members Tovar, Leroe-Munoz
and Tucker voting no)
Meeting Date: December 4, 2017
From: Gabriel Gonzalez, City Administrator
Department: Community Development Department
Submitted By: Kristi Abrams
Prepared By: Susan O'Strander
Strategic Plan Goals
☐ Financially Sustainable
and High Performing
Livable Community ☐ Grow the Economy
☐ Upgrade Infrastructure ☐ Vibrant Downtown
RECOMMENDATION
Motion to adopt an Ordinance of the City Council of the City of Gilroy to Add to the
Gilroy City Code Chapter 30, Article 54 Pertaining to the Ministerial Approval of
Accessory Dwelling Units and Amending the Gilroy City Code, Chapter 30, Sections
30.2.20, 30.4.10, 30.4.20, 30.5.40, 30.11.10, 30.31.21, 30.39.10, and 30.39.30 .
BACKGROUND
At a meeting on November 20, 2017, the City Council voted four to three, with
Councilmembers Leroy-Munoz, Tover and Tucker voting no, to introduce an ordinance
amending Chapter 30 of the Gilroy City Code pertaining to accessory dwelling units
(ADUs). The amendment establishes a new article identifying development standards
and review processes specific to ADUs and clean-up of other City Code sections for
consistency with state law. The City Council has also directed staff to conduct a more
comprehensive review of the City’s ADU standards, scheduled for Spring 2018.
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Attachments:
1. Recommended Ordinance
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ORDINANCE NO. 2017-XX
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
GILROY TO ADD TO THE GILROY CITY CODE CHAPTER
30, ARTICLE LIV, PERTAINING TO THE MINISTERIAL
APPROVAL OF ACCESSORY DWELLING UNITS, AND
AMENDING THE GILROY CITY CODE, CHAPTER 30,
SECTIONS 30.2.20, 30.4.10, 30.4.20, 30.5.40, 30.11.10, 30.31.21,
30.39.10, AND 30.39.30
WHEREAS, the City of Gilroy has adopted accessory dwelling unit development
standards, currently located at Gilroy City Code, section 30.11.10, subdivision (c), footnotes 1
and 4; and
WHEREAS, the State adopted Senate Bill (SB) 1069 and Assembly Bill (AB) 2299,
effective January 1, 2017, which mandate that cities ministerially approve accessory dwelling
units according to criteria adopted by the city as well as conditions required by the State; and
WHEREAS, in order to comply with SB 1069 and AB 2299, the proposed ordinance
would add Article LIV to Chapter 30 of the Gilroy City Code, and modify sections 30.2.20,
30.4.10, 30.4.20, 30.5.40, 30.11.10, 30.31.21, 30.39.10, and 30.39.30 of the Gilroy City Code
pertaining to the ministerial approval of accessory dwelling units.
WHEREAS, the Planning Commission of the City of Gilroy has considered the Zoning
Ordinance Amendment request (Z 17-06), in accordance with the Gilroy Zoning Ordinance, and
other applicable standards and regulations; and
WHEREAS, the Planning Commission of the City of Gilroy held a public hearing on
September 7, 2017 to consider the request and reviewed written materials and oral comments
related to the proposed code amendments; and
WHEREAS, the subject Gilroy City Code amendments are covered under Section
15061(b)(3) of the California Environmental Quality Act (CEQA) Guidelines as an activity that
can be seen with certainty to have no possibility for causing a significant effect on the
environment; and
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF GILROY DOES
HEREBY ORDAIN AS FOLLOWS:
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SECTION I
Article LIV, “Accessory Dwelling Units” is hereby added to the Gilroy City Code, Chapter 30,
and reads as follows:
“ARTICLE LIV. ACCESSORY DWELLING UNITS.
30.54.10 Statement of Intent
The intent of this article is to provide for accessory dwelling units on lots developed or proposed
to be developed with a single-family dwelling. Accessory dwelling units contribute needed
housing to the City of Gilroy’s housing stock and enhance housing opportunities. An accessory
dwelling unit is considered a residential use that is consistent with the existing general plan and
zoning designations for the lot. The accessory dwelling unit is not included in calculation of
residential density for the purposes of determining general plan conformance.
30.54.20 Reducing Barriers to Constructing Accessory Dwelling Units
The approval of a building permit to construct an accessory dwelling unit shall not be subject to
the following:
(a) No passageway will be required in conjunction with the construction of an accessory
dwelling unit.
(b) An accessory dwelling unit will not be required to provide fire sprinklers unless they are
required for the primary residence.
(c) An accessory dwelling unit will not be subject to any charges and fees other than building
permit fees generally applicable to residential construction in the zone in which the property is
located.
30.54.30 Development Standards for Accessory Dwelling Units
An application for a building permit to construct an accessory dwelling units will be ministerially
approved within 120 days after the City receives the application if the proposed accessory
dwelling unit meets all of the following conditions to the satisfaction of the Community
Development Director:
(a) The accessory dwelling unit must not be intended for sale separate from the primary
residence, but may be rented for periods not less than 30 days. Prior to the issuance of the
building permit for the accessory dwelling unit, the owner-occupant must record a deed
restriction stating that the accessory dwelling unit must not be rented for periods less than 30
days and stating that either the primary residence or the accessory dwelling unit must be owner-
occupied.
(b) The accessory dwelling unit must be located on a parcel that is designated as an RR, R1 or
RH zoning district, an R2 zoning district if the parcel is currently developed with only one (1)
single-family dwelling and the accessory dwelling unit takes the place of any future second
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dwelling unit on the property, or an ND zoning district in which such use is allowed in
accordance to the master plan or specific plan adopted for the neighborhood district area in
which the parcel is located.
(c) The accessory dwelling unit must be located on a parcel that is occupied by an existing
single-family residence, and that single-family residence must have at least two parking spaces
that comply with the requirements of Article XXXI, “Off-Street Parking Requirements.” At least
one of these spaces must be covered.
(d) In addition to the required off-street parking spaces for the existing single-family residence,
one (1) off-street parking stall is required for the accessory dwelling unit. The additional parking
stall must comply with parking stall dimensions per Section 30.31.40 of the City Code. The
additional parking stall may be covered or uncovered, and may be provided as tandem parking
on a driveway that otherwise complies with the setback and paving requirements set forth in
Article XXXI of Chapter 30 of the City Code. Parking in setback areas or tandem parking may
be denied if found to be infeasible due to specific site or life safety conditions. Notwithstanding
the above, a parking stall will not be required for an accessory dwelling unit that meets any of
the following criteria:
(1) The accessory dwelling unit is located within one-half mile of a public transit
station, such as a bus stop or train station.
(2) The accessory dwelling unit is located within an architecturally and
historically significant historic district.
(3) The accessory dwelling unit is contained within the existing space of the
single-family residence or an accessory structure.
(4) The accessory dwelling unit is located in an area where on-street parking
permits are required but not offered to the occupant of the accessory dwelling
unit.
(5) When there is a car share vehicle located within one block of the accessory
dwelling unit.
(e) The accessory dwelling unit can either be attached to the existing single-family unit or
located within the living area of the existing single-family unit, or detached from the existing
single-family unit and located on the same lot as the existing single-family unit. Detached
accessory dwelling units must be limited to a single story unless the unit is built above an
existing detached garage. Outside stairways serving a second story accessory dwelling unit shall
not be constructed on any building elevation facing a public street.
(f) The accessory dwelling must be limited to a one-bedroom unit with an overall floor area,
garage areas excluded, not to exceed 600 square feet. The floor area of an attached accessory
dwelling unit must not exceed 50 percent of the existing living area of the single-family unit.
(g) The accessory dwelling unit must contain water, sewer and gas and/or electric utility
connections that are in working condition upon its occupancy. The accessory dwelling unit may
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be serviced by the primary residence or may have separate utility meters. The accessory dwelling
unit will not be considered a new residential use for the purpose of calculating connection fees or
capacity charges for these utilities.
(h) The maximum height for a single-story accessory dwelling unit must be fifteen (15) feet.
The maximum height for the total structure of an accessory dwelling unit located above a garage
must be twenty-four (24) feet.
(i) An accessory dwelling unit must conform to the setback requirements generally applicable to
residential construction in the zoning district in which the property is located, subject to the
following:
(1) A setback of six (6) feet from the side and rear lot lines is required for a
newly constructed detached accessory dwelling unit and for an existing accessory
structure that is expanded into an accessory dwelling unit, except that such an
accessory dwelling unit that is located closer than five (5) feet to the existing
single-family residence remains subject to the setback requirements as specified
by the zoning district in which the lot is located.
(2) A setback of five (5) feet from the side and rear lot lines is required for an
accessory dwelling unit that is constructed above a garage.
(3) No setback is required for an existing garage that is converted into an
accessory dwelling unit.
(4) An accessory dwelling unit must not encroach upon the required front yard
area.
(j) Architectural review of the accessory dwelling unit will be limited to the following:
(1) The architectural features, window styles, roof slopes, exterior materials,
colors, appearance, and design of the accessory dwelling unit must be compatible
with the existing single-family residence.
(2) Entrances to the accessory dwelling unit must be screened from street view.
(3) Any window, door or deck of an accessory dwelling unit must utilize design
techniques to lessen views onto adjacent properties to preserve the privacy of
residents.
(4) An accessory dwelling unit located within an historic site or neighborhood
combining district will be subject to the design review procedures set forth in
Section 30.27.40 of this Chapter and must be consistent with the Secretary of
Interior’s Standards for the Treatment of Historic Properties.
(k) The accessory dwelling unit is subject to the design standards and other zoning requirements
of the zoning district in which the existing single-family dwelling is located and must be built in
accordance with the building code set forth in Chapter 6 of the City Code, except for those
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design, zoning, and building standards inconsistent with state requirements under California
Government Code Section 65852.2.
30.54.40 Accessory Dwelling Units Within Existing Single-Family Residences
Notwithstanding any other provisions of this chapter to the contrary, an application for a building
permit to create an accessory dwelling unit will be ministerially approved within 120 days after
the City receives the application if the proposed accessory dwelling unit meets all of the
following conditions:
(a) The unit is contained within the existing space of a single-family residence or accessory
structure;
(b) The unit has independent exterior access from the existing residence;
(c) The side and rear setbacks of the unit are sufficient for fire safety;
(d) The unit complies with applicable building and safety codes; and
(e) No other accessory dwelling units have been approved on the lot.
An accessory dwelling unit meeting the criteria of this section will not be subject to any
additional parking or other development standards.”
SECTION II
Gilroy City Code, Chapter 30, Section 30.2.20, definition of “Accessory dwelling unit” is hereby
amended to read as follows:
“‘Accessory dwelling unit’ means an attached or detached residential dwelling unit that is
located on the same lot as an existing single-family dwelling. The unit must provide complete
independent living facilities for one or more persons, including permanent provisions for living,
sleeping, eating, cooking, and sanitation. An accessory dwelling unit does not include a truck
trailer or recreational vehicle, but does also include the following:
(a) An efficiency unit, as defined in Section 17958.1 of the California Health and Safety Code;
(b) A manufactured home, as defined in Section 18007 of the California Health and Safety
Code.”
SECTION III
Gilroy City Code, Chapter 30, Section 30.2.20, definition of “Accessory building (or structure)”
is hereby amended to read as follows:
“‘Accessory building (or structure)’ means buildings, both permanent and temporary, excluding
accessory dwelling units as defined in this section, which are:
(a) Located on the same lot as the principal building or use;
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(b) Subordinate to and serve a principal building or principal use;
(c) Subordinate in area, extent, or purpose to the principal building or principal use; and
(d) Contribute to the comfort, convenience, or necessity of occupants of the principal building or
principal use.”
SECTION IV
Gilroy City Code, Chapter 30, Section 30.4.10, subdivision (d), is hereby amended to read as
follows:
“(d) Density. The maximum density in the A1 agriculture district shall be one (1) dwelling unit
per lot. This density limitation is intended to provide for an average density of less than one (1)
unit per twenty (20) acres.”
SECTION V
Gilroy City Code, Chapter 30, Section 30.4.20, subdivision (d), is hereby amended to read as
follows:
“(d) Density. The maximum density in the RR rural residential district shall be one (1) dwelling
unit per lot. (Accessory dwelling units may be allowed under the regulations prescribed in
Article LIV of this Chapter.) This density limitation is intended to provide for an average density
of one (1) unit per two and one-half (2 1/2) acres.”
SECTION VI
Gilroy City Code, Chapter 30, Section 30.5.40, is hereby amended to read as follows:
“The maximum density in the R1 single-family residential district shall be one (1) single-family
detached unit per lot. (Accessory dwelling units may be allowed under the regulations prescribed
in Article LIV of this Chapter.)”
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SECTION VII
Gilroy City Code, Chapter 30, Section 30.11.10, subdivision (c), is hereby amended to read as
follows:
“(c) Residential Use Table.
A1 RR R1 R2 R3 R4 RH ND
Accessory Building X X X X X X X *
Temporary Building X X X X X X X *
Agricultural Uses
Agriculture X X C5 C5 C5 C5 C5 *
Animal Husbandry C C *
Animal Services *
Animal Boarding X X *
Veterinary Hospital X X *
Commercial Uses
Bed/Breakfast Establishment (1—2 Rooms) C C C C C C *
Boarding or Rooming House X C C C C C *
Day Care Center C C C C C C *
Family Day Care Home X X X X X X *
Home Occupation2 D D D D D D *
Landscape Nursery C *
Sale of Farm Products (Grown on Site) X C *
Subdivision Sales Office T T T T T *
Public and Semi-Public Uses
Community Garden X X X X X X *
Emergency Shelter7 C C C C C C C *
Golf Course or Country Club C C C C C C *
Hospital C C *
Neighborhood Bazaar T T T T T *
Open Space (Recreational) X X X X X X *
Private Neighborhood Park, Recreation
Facility
C4 C4 C4 C4 C4 C4 *
9.A.a
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8
Publicly Owned Building or Facility X X X X X X *
Religious Institution X X X X X X *
Schools (Private ≤ 12 Students or Public) X X X X X X *
Schools (Private > 12 Students) C C C C C C *
Supportive and Transitional Housing6 X X X X X X X *
Residential Uses
Accessory Dwelling Unit X1 X1 X1 X1 *
Condominiums X X X *
Duplex X3 X X X *
Mobile Home Park C C X X *
Multiple-Family Building X X *
Residential Care Homes (More Than 6
Residents)
C C C C C C *
Residential Care Homes (Up to and Including
6 Residents)
X X X X X X *
Single-Family Dwelling or Modular Home X X X X X X *
Townhouse X X X *
X = Unconditionally permitted.
C = Permitted only with conditional use permit granted by planning commission.
D = Permitted subject to the approval of the planning manager.
T = Temporary use—see Article XLVII.
* = Refer to the master plan or specific plan adopted for the neighborhood district area in
which the property is located.
1 Accessory dwelling units must comply with the regulations prescribed in Article LIV of
this Chapter.
2 Permitted only if the regulations of Article XL are met.
3 A duplex dwelling is permitted when all of the following conditions are met:
(a) The duplex dwelling shall be located on a corner lot only; and
(b) The corner lot shall have a minimum area of eight thousand (8,000) square feet and be so
designated for a duplex unit on a tentative and final map; and
9.A.a
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9
(c) The duplex shall not increase the overall density within any given land subdivision
beyond the maximum of seven and one-fourth (7 1/4) dwelling units per net acre.
4 Conditional use permit required unless otherwise allowed through an approved planned unit
development.
5 Planning commission approval of a conditional use permit is required for all new
agricultural uses.
6 Supportive and/or transitional housing that serves more than six (6) individuals, provides
on-site services and is licensed by the state as a group home shall only be allowed upon the
granting of a conditional use permit.
7 Emergency shelters shall be subject to the performance standards listed in section 30.41.32.
Additionally, emergency shelters in the agriculture and residential zoning districts shall only
serve families. For the purpose of this section, a family is defined as having one (1) or more
individuals under eighteen (18) years of age who reside with a parent or with another person
with care and legal custody of that individual (including foster parents) or with a designee of
that parent or other person with legal custody. Family also includes a pregnant woman or a
person who is in the process of adopting or otherwise securing legal custody of any
individual under eighteen (18) years of age.
SECTION VIII
Gilroy City Code, Chapter 30, Section 30.31.21 is hereby amended to read as follows:
“Accessory dwelling units
One (1) stall per unit, subject to the restrictions contained in section 30.54.30, subdivision
(e), and section 30.54.40 of this Chapter.
Bed and breakfast establishment
Two (2) stalls, one (1) of which shall be a covered carport or garage, plus one (1) stall per
two (2) guest rooms.
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Packet Pg. 119 Attachment: Recommended Ordinance (1486 : ADU Ordinance Amendment)
10
Multiple-family
One and one-half (1 1/2) stalls per one (1) bedroom or two (2) bedroom dwelling unit and
two (2) stalls for each unit having three (3) or more bedrooms or rooms which could be
used as bedrooms, plus one (1) stall for every four (4) units for guests. One (1) stall for
each unit shall be covered with a garage or carport.
Rooming houses, residence clubs, fraternity and sorority houses
One (1) stall for every two (2) occupants plus four (4) stalls.
Single- and two-family dwellings
Two (2) stalls per dwelling unit, one (1) of which shall be a covered carport or garage
(each space must be at least ten (10) feet by twenty (20) feet).”
SECTION IX
Gilroy City Code, Chapter 30, Section 30.39.10 is hereby amended to read as follows:
“The intent of this article is to provide regulations for building or structures that are not main
building on parcels, excluding accessory dwelling units, in which the principal use of land does
not take place.”
SECTION X
Gilroy City Code, Chapter 30, Section 30.39.30, subdivision (f), is hereby amended to read as
follows:
“(f) Accessory structures shall not be used for dwelling purposes. Applications for a building
permit to construct an accessory dwelling unit is subject to the provisions of Article LIV of this
Chapter.”
SECTION XI
If any section, subsection, subdivision, sentence, clause or phrase of this Ordinance is for
any reason held to be unconstitutional or otherwise void or invalid by any court of competent
jurisdiction, such decision shall not affect the validity of the remaining portions of this
Ordinance. The City Council hereby declares that it would have passed this Ordinance and each
section, subsection, subdivision, sentence, clause or phrase thereof, irrespective of the fact that
any one or more sections, subsections, subdivisions, sentences, clauses or phrases be declared
unconstitutional or otherwise void or invalid.
SECTION XII
Pursuant to section 608 of the Charter of the City of Gilroy, this Ordinance shall be in full
force and effect thirty (30) days from and after the date it is adopted.
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11
PASSED AND ADOPTED this 4th day of December, 2017 by the following roll call vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
ATTEST:
APPROVED:
Shawna Freels, City Clerk Roland Velasco, Mayor
9.A.a
Packet Pg. 121 Attachment: Recommended Ordinance (1486 : ADU Ordinance Amendment)
City of Gilroy
STAFF REPORT
Agenda Item Title: Adoption of an Emergency Ordinance of the City Council of the City
of Gilroy Repealing and Amending Section 24.44 (b)(1) of Article III
of Chapter 24 of the Gilroy City Code Pertaining to the Public,
Educational, and Government Access Channel Capacity, Support,
Interconnection, and Signal Carriage and Declaring the Emergency
Thereof
Meeting Date: December 4, 2017
From: Gabriel Gonzalez, City Administrator
Department: Administration
Submitted By: Gabriel Gonzalez
Prepared By: Gabriel Gonzalez
Strategic Plan Goals
Financially Sustainable
and High Performing ☐ Livable Community ☐ Grow the Economy
Upgrade Infrastructure ☐ Vibrant Downtown
RECOMMENDATION
a) Motion to read the ordinance by title only, and waive further reading; and,
b) Motion to adopt an Emergency Ordinance of the City Council of the City of Gilroy
adding Section 24.44(b)(5) to Article III of Chapter 24 of the Gilroy City Code
pertaining to the reauthorization of the public, educational, and government
access channel support and declaring the emergency thereof.
EXECUTIVE SUMMARY
The Gilroy City Code (“Code”) includes in Section 24.44 a provision that allows state -
wide television franchise holders who serve the residents of Gilroy to collect fees from
users to fund the purchase, maintenance, repair and replacement of broadcasting
equipment for public, educational, and governmental (“PEG”) programming. Under state
law, in order for the City’s current franchisee Charter Communications, Inc. (“Charter”)
to continue collecting this fee during their next 10 -year franchise period, the above
10.A
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mentioned section of the Code must be reauthorized as it relates to PEG fee collection.
These fees are provided to the Community Media Access Partne rship of Southern
Santa Clara and San Benito County (“CMAP”).
CMAP is the City’s designated provider of Channel 17, the City’s PEG channel. Without
reauthorization, the PEG fees will no longer be collected by Charter, impacting CMAP ’s
ability to fund maintenance efforts of the broadcasting equipment for next calendar year,
or however long it takes until the PEG support provision of Section 24.44 is
reauthorized. The emergency status of this ordinance is due to the limited window of
notice the City received regarding the official granting of renewal of Charter’s state
franchise, the limited timeframe until the current franchise agreement expires, and the
potential loss of PEG funding as a result.
BACKGROUND
Cities in California have historically entered into local franchise agreements with cable
and satellite television providers. However, in 2006 the Digital Infrastructure and Video
Competition Act of 2006 (“DIVCA”) was adopted by the state as part of the Public
Utilities Code, which authorized such companies to have state-wide franchises. DIVCA
requires that these companies provide channels for PEG programming. It further allows
for local entities to require the collection of PEG fees by the franchisee by adoption of
an ordinance.
In December of 2009, Emergency Ordinance No. 2009-06 was adopted, and in early
2010, the City adopted Ordinance No. 2010-01, which created Section 24.44 of the
Code which relates to PEG channels and support. The City is able to collect more than
the 1% PEG fee rate authorized under DIVCA because the City already had a local
franchise agreement with Charter. As such, the City is able to secure a PEG fee
collection of 3% of Charter’s gross revenue in Gilroy.
The City formed a partnership with the Cities of Hollister and San Juan Bautista to form
CMAP. CMAP is the City’s delegated organization that administers Channel 17 for the
City, and transmits the City’s content through the PEG channel. CMAP utilizes the PEG
fees to purchase, maintain, repair and replace broadcasting equipment that keeps the
City’s PEG channel operating.
The PEG channel regularly shows slides developed by the City’s Public Information
Office with information about City services and events. Channel 17 also shows the
recordings of City Council meetings, Planning Commission meetings, and County Board
of Supervisors meetings. Last, but definitely not least, Channel 17 also serves as one of
the emergency information channels the City uses, providing important information to
Gilroy residents in the event of a natural disaster or other emergency condition.
ANALYSIS
The City received notice in mid-November from Charter, through CMAP, that Charter
successfully renewed their state-wide franchise and requested to know the status of the
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PEG fee ordinance reauthorization. The existing franchise expiration and the renewal of
the new 10-year franchise certificate are both effective January 2, 2018. Due to the
short timeframe, the City’s regular ordinance adoption process and delay in effective
date would leave a gap of approximately one and one-half months where the PEG fee
would not be collected and remitted to CMAP. By adopting this emergency ordinance
the PEG fees will continue to be collected and remitted to CMAP to maintain the City’s
PEG Channel infrastructure.
Section 5870(n) of the California Public Utilities Code, included below, governs th e
administration of the PEG fee.
“(n) A local entity may, by ordinance, establish a fee to support PEG channel
facilities consistent with federal law that would become effective subsequent to the
expiration of any fee imposed pursuant to subdivision (l). If no such fee exists, the
local entity may establish the fee at any time. The fee shall not exceed 1 percent of
the holder’s gross revenues, as defined in Section 5860. Notwithstanding this
limitation, if, on December 31, 2006, a local entity is imposing a separate fee to
support PEG channel facilities that is in excess of 1 percent, that entity may, by
ordinance, establish a fee no greater than that separate fee, and in no event greater
than 3 percent, to support PEG activities. The ordinance shall expire, and may be
reauthorized, upon the expiration of the state franchise . [underline added]”
The underlined section highlights that without reauthorization the City’s ordinance
regarding the collection of PEG fees is expired, even if the ordinance did not have an
expiration timeframe in its language approved by the Council. Staff is recommending
that Council adopt the recommended emergency ordinance to reauthorize the PEG fee
collection. By reauthorizing the ordinance on an emergency basis, Council will protect
the receipt and delivery of PEG fees from Charter to CMAP to maintain the City’s PEG
channel infrastructure until a regular ordinance is adopted and in effect.
The fact that the City would potentially lose PEG fees collected from January 2, 2018
until a reauthorization ordinance becomes effective is the basis for the emergency
ordinance. The PEG fees are a critical source of revenue for CMAP to afford
maintenance and repair of broadcasting equipment that shares regular and emergency
information with residents. The loss of one and one -half months of revenue could limit
CMAP’s ability to maintain the equipment.
The proposed emergency ordinance, as well as the subsequent regular ordinance bein g
introduced, is structured to prevent this situation from happening in the future. The
ordinances contain language whereby the PEG support section is automatically
renewed with each expiration of a franchisee’s franchise certificate. This will proceed in
perpetuity until the Council takes affirmative action to not reauthorize the ordinance. The
reason for the two ordinances is that the emergency ordinance can only be in effect for
45 days by state law. The companion regular ordinance would be effective in perpetuity
until changed by action of the City Council.
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ALTERNATIVES
As an alternative, Council may choose not to adopt the emergency ordinance. Not
recommended. Should Council choose not to adopt this ordinance, there would be lost
PEG fees that could have been collected in the interim period between January 2, 2018
and when the next reauthorization of Section 24.44 of the Code becomes effective.
FISCAL IMPACT/FUNDING SOURCE
Approval of the emergency ordinance would not have any fiscal impact. However, if the
emergency ordinance is not adopted, Charter would not continue collecting PEG fees
until an ordinance reauthorizing the collection of the fee is adopted and effective. This
would be approximately one and one-half months when 3% of Charter’s gross revenue
earned during that period would not be sent to CMAP for maintenance of the
broadcasting equipment. Based on CMAP’s report of the latest PEG fee payment from
Charter for Gilroy subscribers, this amount is estimated to be approximately $27,000.
The lower amount of impact is due to the limited timeframe of an emergency ordinance,
and the time for the companion regular ordinance to become effective.
CONCLUSION
While cumbersome due to the month in which Charter renews its 10 -year license, by
adopting this emergency ordinance, Council reauthorizes that the PEG fees are
collected as already identified in the Code. This supports the maintenance and
replacement of broadcast equipment used for the City’s government channel, which is
also a medium of relaying emergency communication to residents. As emergency
ordinances are only in effect for a limited time, a companion ordinance is being
introduced at this same Council Meeting that, if approved, would make the changes
enacted by this emergency ordinance continue on an ongoing basis.
NEXT STEPS
If approved, staff will relay a signed copy of the emergency ordinance to Charter, who
requires a copy in order to continue collection of the fee after January 2, 2018, until the
non-emergency PEG fee ordinance is adopted or the emergency ordinance expires.
Attachments:
1. DIVCA PEG Fee Emergency Ordinance
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1
ORDINANCE NO. 2017-XX
4839-5514-0181v1
JH\04706083
ORDINANCE NO. 2017-XX
AN EMERGENCY ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF GILROY ADDING SECTION 24.44 (b)(5)
TO ARTICLE III OF CHAPTER 24 OF THE GILROY CITY
CODE PERTAINING TO THE REAUTHORIZATION OF
THE PUBLIC, EDUCATIONAL, AND GOVERNMENT
ACCESS CHANNEL SUPPORT AND DECLARING THE
EMERGENCY THEREOF
WHEREAS, Section 5870(n) of the Public Utilities Code, which was enacted as part of
the Digital Infrastructure and Video Competition Act of 2006 (“DIVCA”), authorized the City of
Gilroy to adopt an ordinance establishing a fee on state-franchised video and cable service
providers to support public, educational, and governmental access channel facilities (“PEG”);
and,
WHEREAS, The City of Gilroy had previously established a PEG support fee from
Charter Communications (“Charter”) to be used for supporting the PEG channel facilities; and,
WHEREAS, on December 7, 2009, Emergency Ordinance No. 2009-06 and on January
11, 2010 Ordinance No. 2010-01 were adopted implementing the provisions of DIVCA by
adding sections 24.38 through 24.45 to the Gilroy City Code, continuing the practice of charging
our franchisee a fee to support the PEG channel facilities; and,
WHEREAS, Section 5870(n) of the Public Utilities Code states that such an ordinance
shall expire, and may be reauthorized, upon the expiration of the state franchise; and,
WHEREAS, the City of Gilroy desires to ensure that there is no gap in the payment of
PEG fees due to the future expiration of any existing or future video and cable franchise
certificate franchise(s) held by any state franchise holder operating within the City of Gilroy;
and,
WHERAS, due to the short timeframe of notice from Charter of their successful state-
wide franchise renewal and the expiration of the current franchise, a regular ordinance would
become effective after the expiration of the franchise certificate, preventing the collection of
PEG fees until such time an ordinance reauthorizing the fee becomes effective, thereby
necessitating an emergency ordinance to protect the stability of the PEG fee collection; and,
WHEREAS, this Ordinance is exempt from environmental review pursuant to
Section 15061(b)(3) of the State Guidelines implementing the California Environmental Quality
Act of 1970, as amended.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF GILROY DOES
HEREBY ORDAIN AS FOLLOWS:
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2
ORDINANCE NO. 2017-XX
4839-5514-0181v1
JH\04706083
SECTION I
Section 24.44(b) of Chapter 24, of the Gilroy City Code entitled "Public, Educational,
and Government Access Channel Capacity, Support, Interconnection, and Signal Carriage" is
hereby amended by adding a new Section 24.44(b)(5), which shall read as follows:
“Sec. 24.44 Public, Educational, and Government Access Channel
Capacity, Support, Interconnection, and Signal Carriage
(b) PEG Support.
(5) Reauthorization of State Franchise Holder PEG Fees
i. The fee on state franchise holders to support public, educational,
and governmental channel facilities in Gilroy City Code Sections
24.44(b)(1) through 24.44(b)(4) above is reauthorized and shall
remain unchanged and in full effect as to all state franchise holders.
ii. The PEG fee in Gilroy City Code Sections 24.44(b)(1) through
24.44(b)(4) shall automatically be reauthorized upon the expiration
of any existing or future franchise certificate(s) held by any state
franchise holder operating within the City of Gilroy.
iii. This chapter shall automatically be reauthorized upon the expiration
of any existing or future franchise certificate franchise(s) held by
any state franchise holder operating within the City of Gilroy. This
chapter shall so renew upon the future expiration of any franchise
certificate(s) until such time that the City Council takes formal
affirmative action to cease the renewals.
SECTION II
This Ordinance, pursuant to Gilroy City Charter, Article VI, Section 602, is hereby
declared by the City Council to be necessary as an emergency measure and for the preservation
of the public peace, health, safety and welfare of the City, and as such shall take effect
immediately and be in full force and effect after its adoption after publication at least once in an
official newspaper of the City for the following reasons:
This Ordinance is necessary as an emergency Ordinance to: (1) avoid confusion and
assure the public what PEG fees apply; and (2) maintain the existing PEG channel. In order to
accomplish these goals, the Gilroy City Code Article III, Section 24.44(b), as amended, must be
adopted by means of this emergency Ordinance.
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3
ORDINANCE NO. 2017-XX
4839-5514-0181v1
JH\04706083
SECTION III
If any section, subsection, sentence, clause or phrase of this ordinance is for any reason
held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining
portions of this ordinance. The City Council of the City of Gilroy hereby declares that it would
have passed and adopted this ordinance, and each section, subsection, sentence, clause or phrase
hereof, irrespective of the fact that anyone or more sections, subsections, sentences, clauses or
phrases may be declared invalid or unconstitutional.
PASSED AND ADOPTED this 4th day of December, 2017, by the following roll call
vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
APPROVED
Roland Velasco, Mayor
ATTEST:
Shawna Freels, City Clerk
10.A.a
Packet Pg. 128 Attachment: DIVCA PEG Fee Emergency Ordinance (1481 : Emergency PEG Fee Ordinance 2017)
City of Gilroy
STAFF REPORT
Agenda Item Title: Introduction of an Ordinance of the City Council of the City of Gilroy
Adding Section 24.44(b)(5) to Article III of Chapter 24 of the Gilroy
City Code Pertaining to the Reauthorization of the Public,
Educational, and Government Access Channel Support
Meeting Date: December 4, 2017
From: Gabriel Gonzalez, City Administrator
Department: Administration
Submitted By: Gabriel Gonzalez
Prepared By: Gabriel Gonzalez
Strategic Plan Goals
Financially Sustainable
and High Performing ☐ Livable Community ☐ Grow the Economy
Upgrade Infrastructure ☐ Vibrant Downtown
RECOMMENDATION
a) Motion to read the ordinance by title only, and waive further reading; and,
b) Motion to introduce an Ordinance of the City Council of the City of Gilroy adding
Section 24.44(b)(5) to Article III of Chapter 24 of the Gilroy City Code pertaining
to the reauthorization of the public, educational, and government access channel
support.
EXECUTIVE SUMMARY
The Gilroy City Code (“Code”) includes in Section 24.44 a provision that allows state-
wide television franchise holders who serve the residents of Gilroy to collect fees from
users to fund the purchase, maintenance, repair and replacement of broadcasting
equipment for public, educational, and governmental (“PEG”) programming. Under state
law, in order for the City’s current franchisee Charter Communications, Inc. (“Charter”)
to continue collecting this fee during their next 10 -year franchise period, the above
mentioned section of the Code must be reauthorized as it relates to PEG fee collection.
These fees are provided to the Community Media Access Partnership of Southern
10.B
Packet Pg. 129
Santa Clara and San Benito County (“CMAP”). CMAP is the City’s designated provider
of Channel 17, the City’s PEG channel. Without reauthorization, the PEG fees will no
longer be collected by Charter, impacting CMAP’s ability to fund maintenance efforts of
the broadcasting equipment for next calendar year, or however long it takes until the
PEG support provision of Section 24.44 is reauthorized.
BACKGROUND
Cities in California have historically entered into local franchise agreements with cable
and satellite television providers. However, in 2006 the Digital Infrastructure and Video
Competition Act of 2006 (“DIVCA”) was adopted by the state as part of the Public
Utilities Code, which authorized such companies to have state-wide franchises. DIVCA
requires that these companies provide channels for PEG programming. It further allows
for local entities to require the collection of PEG fees by the franchisee by adoption of
an ordinance.
In December of 2009, Emergency Ordinance No. 2009 -06 was adopted, and in early
2010, the City adopted Ordinance No. 2010-01, which created Section 24.44 of the
Code which relates to PEG channels and support. The City is able to collect more than
the 1% PEG fee rate authorized under DIVCA because the City already had a local
franchise agreement with Charter. As such, the City is able to secure a PEG fee
collection of 3% of Charter’s gross revenue in Gilroy.
The City formed a partnership with the Cities of Hollister and San Juan Bautista to form
CMAP. CMAP is the City’s delegated organization that administers Channel 17 for the
City, and transmits the City’s content through the PEG channel. CMAP utilizes the PEG
fees to purchase, maintain, repair, and replace broadcasting equipment that keeps the
City’s PEG channel operating.
The PEG channel regularly shows slides developed by the City’s Public Information
Office with information about City services and events. Channel 17 also shows the
recordings of City Council meetings, Planning Commission meetings, and County Board
of Supervisors meetings. Last, but definitely not least, Channel 17 also serves as one of
the emergency information channels the City uses, providing important information to
Gilroy residents in the event of a natural disaster or other emergency condition.
ANALYSIS
The City received notice in mid-November from Charter, through CMAP, that Charter
successfully renewed their state-wide franchise and requested to know the status of the
PEG fee ordinance reauthorization. The existing franchise expiration and the renewal of
the new 10-year franchise certificate are both effective January 2, 2018. By adopting
this ordinance the PEG fees will continue to be collected and remitted to CMAP to
maintain the City’s PEG Channel infrastructure.
Section 5870(n) of the California Public Utilities Code, included below, governs the
administration of the PEG fee.
10.B
Packet Pg. 130
“(n) A local entity may, by ordinance, establish a fee to support PEG channel
facilities consistent with federal law that would become effective subsequent to the
expiration of any fee imposed pursuant to subdivision (l). If no such fee exists, the
local entity may establish the fee at any time. The fee shall not exceed 1 percent of
the holder’s gross revenues, as defined in Section 5860. Notwithstanding this
limitation, if, on December 31, 2006, a local entity is imposing a separate fee to
support PEG channel facilities that is in excess of 1 percent, that entity may, by
ordinance, establish a fee no greater than that separate fee, and in no event greater
than 3 percent, to support PEG activities. The ordinance shall expire, and may be
reauthorized, upon the expiration of the state franchise . [underline added]”
The underlined section highlights that without reauthorization the City’s ordinance
regarding the collection of PEG fees is expired, even if the ordinance did not have an
expiration timeframe in its language approved by the Council. Staff is recommending
that Council adopt the recommended ordinance to reauthorize the PEG fee collection.
By reauthorizing the ordinance Council will protect the receipt and delivery of PEG fees
from Charter to CMAP to maintain the City’s PEG channel infrastructure.
The PEG fees are a critical source of revenue for CMAP to afford maintenance and
repair of broadcasting equipment that shares regular and emergency information with
residents. The loss of revenue if the ordinance is not approved could limit CMAP’s
ability to maintain the equipment.
The proposed ordinance is structured to prevent the need for repeated ordinances each
10 years to reauthorize the PEG fee collection. The ordinance contains language
whereby the PEG support section is automatically renewe d with each expiration of a
franchisee’s franchise certificate. This will proceed in perpetuity until the Council takes
affirmative action to not reauthorize the ordinance.
ALTERNATIVES
As an alternative, Council may choose not to adopt the ordinance. Not recommended.
Should Council choose not to adopt this ordinance, the City will not be able to receive
PEG fees which pay for the broadcasting equipment that CMAP uses to provide the
City’s PEG channel, Channel 17. Additionally, should the City ever decide to undertake
its own broadcasting in the future, there would not be PEG fees to pay for equipment
purchases to self-broadcast, should that ever be desired by Council.
If Council does not approve the ordinance, CMAP, through the City, would no longer
receive the 3% of gross revenue earned by Charter in Gilroy. Once equipment failures
happen CMAP may not be able to purchase repair services or replacement equipment.
Based on CMAP’s report of the latest PEG fee payment from Charter for Gilroy
subscribers, this amount is estimated to be approximately $219,000 annually.
FISCAL IMPACT/FUNDING SOURCE
Approval of the ordinance would not have any fiscal impact to the City’s General Fund.
10.B
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However, if the ordinance is not adopted, Charter would cease to collect PEG fees until
an ordinance reauthorizing the collection of the fee is adopted and effective .
CONCLUSION
By adopting this ordinance Council reauthorizes that the PEG fees are collected as
already identified in the Code. This supports the maintenance and replacemen t of
broadcast equipment used for the City’s government channel, which is also a medium of
relaying emergency communication to residents.
NEXT STEPS
If approved, staff will return to Council with an agenda item on the January 8, 2018
regular Council meeting to adopt the ordinance. If adopted, staff will then relay a signed
copy of the ordinance to Charter who requires a copy in order to continue collection of
the PEG fee.
Attachments:
1. DIVCA PEG Fee Perpetual Reauthorization Ordinance
10.B
Packet Pg. 132
ORDINANCE NO. 2018-XX
4839-5514-0181v1
JH\04706083
ORDINANCE NO. 2018-XX
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF GILROY ADDING SECTION 24.44 (b)(5) TO ARTICLE
III OF CHAPTER 24 OF THE GILROY CITY CODE
PERTAINING TO THE REAUTHORIZATION OF THE
PUBLIC, EDUCATIONAL, AND GOVERNMENT ACCESS
CHANNEL SUPPORT
WHEREAS, Section 5870(n) of the Public Utilities Code, which was enacted as part of
the Digital Infrastructure and Video Competition Act of 2006 (“DIVCA”), authorized the City of
Gilroy to adopt an ordinance establishing a fee on state-franchised video and cable service
providers to support public, educational, and governmental access channel facilities (“PEG”);
and,
WHEREAS, The City of Gilroy had previously established a PEG support fee from
Charter Communications (“Charter”) to be used for supporting the PEG channel facilities; and,
WHEREAS, on December 7, 2009, Emergency Ordinance No. 2009-06 and on January
11, 2010 Ordinance No. 2010-01 were adopted implementing the provisions of DIVCA by
adding sections 24.38 through 24.45 to the Gilroy City Code, continuing the practice of charging
our franchisee a fee to support the PEG channel facilities; and,
WHEREAS, Section 5870(n) of the Public Utilities Code states that such an ordinance
shall expire, and may be reauthorized, upon the expiration of the state franchise; and,
WHEREAS, the City of Gilroy desires to ensure that there is no gap in the payment of
PEG fees due to the future expiration of any existing or future video and cable franchise
certificate franchise(s) held by any state franchise holder operating within the City of Gilroy;
and,
WHEREAS, this Ordinance is exempt from environmental review pursuant to
Section 15061(b)(3) of the State Guidelines implementing the California Environmental Quality
Act of 1970, as amended.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF GILROY DOES
HEREBY ORDAIN AS FOLLOWS:
SECTION I
Section 24.44(b) of Chapter 24, of the Gilroy City Code entitled "Public, Educational,
and Government Access Channel Capacity, Support, Interconnection, and Signal Carriage" is
hereby amended by adding a new Section 24.44(b)(5), which shall read as follows:
10.B.a
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“Sec. 24.44 Public, Educational, and Government Access Channel
Capacity, Support, Interconnection, and Signal Carriage
(b) PEG Support.
(5) Reauthorization of State Franchise Holder PEG Fees
i. The fee on state franchise holders to support public, educational,
and governmental channel facilities in Gilroy City Code Sections
24.44(b)(1) through 24.44(b)(4) above is reauthorized and shall
remain unchanged and in full effect as to all state franchise holders.
ii. The PEG fee in Gilroy City Code Sections 24.44(b)(1) through
24.44(b)(4) shall automatically be reauthorized upon the expiration
of any existing or future franchise certificate(s) held by any state
franchise holder operating within the City of Gilroy.
iii. This chapter shall automatically be reauthorized upon the expiration
of any existing or future franchise certificate franchise(s) held by
any state franchise holder operating within the City of Gilroy. This
chapter shall so renew upon the future expiration of any franchise
certificate(s) until such time that the City Council takes formal
affirmative action to cease the renewals.
SECTION II
If any section, subsection, sentence, clause or phrase of this ordinance is for any reason
held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining
portions of this ordinance. The City Council of the City of Gilroy hereby declares that it would
have passed and adopted this ordinance, and each section, subsection, sentence, clause or phrase
hereof, irrespective of the fact that anyone or more sections, subsections, sentences, clauses or
phrases may be declared invalid or unconstitutional.
SECTION III
Pursuant to section 608 of the Charter of the City of Gilroy, this Ordinance shall be in full
force and effect thirty (30) days from and after the date it is adopted.
PASSED AND ADOPTED this ___ day of January, 2018, by the following roll call vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
10.B.a
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APPROVED
Roland Velasco, Mayor
ATTEST:
Shawna Freels, City Clerk
10.B.a
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