A joint powers agency in Marin County that wanted to build a radio antenna in the Town of Tiburon did not have to comply with Tiburon’s land use laws, the First District Court of Appeal has ruled.

The unanimous three-judge appellate panel overturned a lower court, which had ruled that not only did the joint powers agency have to comply with Tiburon’s ordinances, but that the agency had violated the California Environmental Quality Act (CEQA) by not preparing a supplemental environmental impact report. In the unpublished portion of its decision, the appellate court ruled that the agency had complied with CEQA.

In February 1998, 25 local public agencies in Marin County formed the Marin Emergency Radio Authority (MERA). The county’s emergency radio system was obsolete and not dependable, so MERA was charged with planning, financing, building and operating a new system. The agency proposed a network of microwave dishes, antennas and radio equipment at 17 interlinked sites.

One of those sites was a 1.1-acre parcel on Mt. Tiburon Drive in Tiburon. The site was owned by Marin Municipal Water District, which had a storage tank and pump on the property. MERA prepared an EIR addressing all 17 proposed antenna sites. In February 2000, the MERA board certified the final EIR, and a mitigation monitoring and reporting program. The Town of Tiburon, which is a MERA member, did not have a representative at the meeting in which MERA approved the EIR, nor had the town commented on the EIR.

Two months later, MERA applied to Tiburon for a conditional use permit and design review. In June 2000, The Planning Commission denied the application, finding that the plan for two microwave dishes and three antennas on the Mt. Tiburon Drive site was inconsistent with the city’s general plan, zoning ordinance and standards for wireless communications facilities, all of which sought to avoid land use conflicts. Houses border three sides of the Mt. Tiburon Drive site.

After the Planning Commission decision, MERA studied potential alternatives to the Mt. Tiburon site but eventually concluded no alternative was feasible. In May 2002, MERA condemned the Mt. Tiburon site with the water district’s consent.

The Tiburon Town Council then hurriedly adopted a resolution approving MERA antennas at an alternative location, known as the Sugarloaf site, that MERA had ruled out. (In an unrelated lawsuit, the council’s action was invalidated by the Marin County Superior Court.) Still, MERA attempted to proceed with construction at the Mt. Tiburon site — until the Tiburon Police Department showed up to enforce a city “stop work” order. The contractor left the site, and then the attorneys got busy.

Two groups of citizens filed separate but similar lawsuits against MERA and naming the city as the real party in interest. Both lawsuits sought to block the MERA facility on Mt. Tiburon Drive. The lawsuits were consolidated, and Marin County Superior Court Judge Michael Dufficy ruled for the citizens. He determined that MERA was subject to, and had failed to comply with, Tiburon’s general plan and zoning ordinance. Judge Dufficy also ruled that new information regarding the feasibility of the Sugarloaf site required MERA to prepare a supplemental EIR. On appeal, the First District overruled Dufficy.

In the published part of its decision, the appellate panel addressed exactly what powers the joint powers agency has. The trial court ruled that MERA lacked the “common power” to take the action that it did because four MERA members — the water district, the Marin County Transit District, the Marinwood Community Services District, and the Marin Community College District — lacked authority to construct and operate an emergency communications system.

“The trial court,” Presiding Justice Anthony Kline wrote for the First District, “appears to have taken the position that the power to construct and operate an emergency communications system is an implied power only of public agencies expressly authorized to provide emergency services, such as police and fire protection. … [W]e believe the trial court’s approach is too restrictive. Disaster preparedness is necessarily incident to the provision of a much broader range of mandated public services.”

In fact, all of the agencies involved must plan for and respond to disasters and emergencies, the court ruled, citing state laws that emphasize the importance of disaster preparedness. Under the Joint Exercise of Powers Act (Government Code § 6500 et seq.), MERA “has the ‘common power’ to operate an emergency communication system” and is not subject to Tiburon’s land use regulations, the court concluded.

In the unpublished part of the decision, the court addressed Judge Dufficy’s ruling that new information mandated preparation of a supplemental EIR. The appellate court found that the only new information was the Town Council’s action regarding the Sugarloaf site — and all of the information on which the council based its action could have been known before the EIR was certified. Therefore, no additional environmental study was required.

The Case:
Zack v. Marin Emergency Radio Authority (Town of Tiburon), No. A102148, 04 C.D.O.S. 4111, 2004 DJDAR 5673. Filed April 14, 2004. Certified for partial publication May 13, 2004.
The Lawyers:
For Zack: Steven Roland, Sedgwick, Detert, Moran & Arnolds, (415) 781-7900.
For Citizens for Open Process in Antenna Siting: J. Dennis McQuaid, McQuaid, Bedford & Van Zandt, (415) 905-0200.
For MERA: James Wagstaffe, Kerr & Wagstaffe, (415) 371-8500.
For the city: Ann Danforth, town attorney, (415) 435-7370.