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Home My WebLink AboutMINUTES - 12172013 - C.80RECOMMENDATION(S): APPROVE and AUTHORIZE the Director of Conservation and Development, or designee, to execute a tolling agreement with AT&T Mobility to extend the time to act on the permit application for the wireless telecommunication facility proposed for 15320 Marsh Creek Road (Clayton area). FISCAL IMPACT: None. BACKGROUND: AT&T Mobility (New Cingular Wireless PCS LLC) has filed a land use permit application to construct a wireless telecommunication facility at 15320 Marsh Creek Road (LP13-2069) in the Clayton area. The application was filed with the County on June 4, 2013. Under a ruling of the Federal Communications Commission (“FCC”), a wireless service provider whose application has been pending for a period of 90 days for collocation applications, and 150 days for all other applications, is authorized to seek judicial review within 30 days on the basis that a state or local permitting authority did not act on the application within “a reasonable time.” (In Re: Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review, Etc., FCC 09-99 (FCC November 18, 2009) (the “Ruling”), 45.) The Ruling also permits the period for a local jurisdiction’s review of an application to be extended APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/17/2013 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS AYE:John Gioia, District I Supervisor Candace Andersen, District II Supervisor Mary N. Piepho, District III Supervisor Karen Mitchoff, District IV Supervisor Federal D. Glover, District V Supervisor Contact: Francisco Avila, (925) 674-7801 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 17, 2013 David Twa, County Administrator and Clerk of the Board of Supervisors By: Stephanie L. Mello, Deputy cc: C. 80 To:Board of Supervisors From:Catherine Kutsuris, Conservation and Development Director Date:December 17, 2013 Contra Costa County Subject:Tolling Agreement with AT&T Mobility (LP13-2069) BACKGROUND: (CONT'D) by mutual consent. (Ruling, 49.) Hearings on the application have not yet been scheduled before the County Zoning Administrator. The proposed tolling agreement would extend the time for the County Zoning Administrator to act on the application to January 22, 2014, and would prohibit AT&T Mobility from seeking a court order before January 22, 2014, directing the County to act on that application. This Board order also authorizes the Director of Conservation and Development, or designee, to execute extensions of the above time period if necessary. CONSEQUENCE OF NEGATIVE ACTION: Possible litigation over whether the permit application was acted upon in a timely manner. CHILDREN'S IMPACT STATEMENT: N/A ATTACHMENTS Tolling Agreement Page 1 of 2 TOLLING AGREEMENT This Tolling Agreement (“Agreement”), is made and entered into this _____ day of ____________, 2013 (“Effective Date”) by and between New Cingular Wireless PCS LLC, a Delaware limited liability company dba AT&T Mobility (“AT&T”) and the County of Contra Costa, a political subdivision of the state of California ("County"). RECITALS A On June 4, 2013, AT&T filed an application with the County for a use permit to authorize AT&T to construct a wireless telecommunications facility at the location of 15320 Marsh Creek Road, Clayton, County of Contra Costa, County Application No.: LP13-2069 (“Application”). The Application was deemed complete on December 3, 2013. B. On November 18, 2009, the Federal Communications Commission (the "FCC") released a Declaratory Ruling clarifying Section 332(c)(7) of the Communications Act. See In Re: Petition for Declaratory Ruling to Clarify; Provisions of Section 332(c)(7){B) to Ensure Timely Siting Review, Etc.. FCC 09-99 (FCC November 18, 2009) (the “Ruling”). The Ruling permits a wireless service provider whose application has been pending for a period of 90 days for collocation applications, and 150 days for all other applications, to seek judicial review within 30 days on the basis that a state or local permitting authority failed to act on the application within “a reasonable time.” Ruling, ¶ 45. The Ruling further permits the period for review of an application to be extended by mutual consent. Ruling, ¶ 49. The parties disagree over whether the time to act under the FCC “shot clock” has passed. C. In order to allow the County Zoning Administrator time to hear the Application in an orderly manner, without either party risking the loss of important rights, the parties wish to enter into a tolling agreement. NOW, THEREFORE, the parties agree as follows: 1. The parties agree that the time period within which the County Zoning Administrator may act on the Application, under both California and federal law, shall be extended through Wednesday, January 22, 2014, (the “Extension Date”), and that no limitations period under California or federal law for any claim by AT&T of unreasonable or unlawful delay in processing the Application shall commence to run before the Extension Date. 2. If the County Zoning Administrator has not acted on the Application by the Extension Date, this Agreement shall not be construed as an admission by the County that such failure to act is unreasonable or unlawful, nor shall it be construed to waive or otherwise impair the rights of AT&T with respect to any such claim, including AT&T right to file an “unreasonable delay” claim under 47 U.S.C. 332(c)(7)(B) within 30 days following the Extension Date. In addition, this Agreement shall not be construed to waive any claims by the County regarding the validity or applicability of the requirements and deadlines established in the Ruling. 3. This Agreement may be executed in counterparts and facsimile, each of which shall be deemed an original. The individuals whose signatures appear below on behalf of each party are authorized to execute this Agreement on behalf of the respective parties, and to bind them to the terms thereof. /// /// Page 2 of 2 /// IN WITNESS WHEREOF, the Parties hereto have set their hands and caused this Agreement to be effective as of the Effective Date first written above. SO AGREED: New Cingular Wireless PCS LLC, a Delaware limited liability company dba AT&T Mobility Signed: _____________________________ Print Name: _________________________ Its: ________________________________ The County of Contra Costa, a political subdivision of the state of California Signed: _____________________________ Print Name: _________________________ Its: ________________________________