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Attachment 2TOWN OF LOS GATOS OFFICE OF THE TOWN ATTORNEY MEMORANDUM To: Mayor & Council From: Robert Schultz, Town Attorney Date: February 12, 2017 Subject: Ordinance Priorities as directed from the January 31, 2017 Priority Setting Study Session __________________________________________________________________________________ Based upon the input received at the Town Council Priority Setting Study Session on January 31, 2017, the Town Attorney’s Office has reprioritized the ordinances that it will be working on during the upcoming year as follows: 1. Tobacco Retail Ordinance One of the 2015-2016 Strategic Goals and Priorities of the Town Council was to update the Town’s Smoking Regulations, last revised some 25 years ago. In that regard, on May 17, 2016 the Town Council adopted amendments to the Town’s Smoking Regulations. The amendments include provisions for prohibiting smoking in public places, commercial areas, and multi-unit residences. During the discussion regarding the Town’s Smoking Regulations, the Town Council directed staff to also develop an ordinance to address regulating the sales of tobacco by businesses in Los Gatos. In response, the Town Attorney along with the Town’s Community Outreach Coordinator obtained a grant for $20,000 from the County to implement our Town’s Smoking Regulations and is in the process of drafting amendments to the Tobacco Retail Sales Ordinance. The draft Tobacco Sales Ordinance will be presented to the Youth Commission in March for a recommendation to Council in April and would establish a local licensing system for tobacco retailers to ensure that retailers comply with tobacco control laws and business standards in order to protect the health, safety, and welfare of our residents and to discourage violations of tobacco- related laws, especially those that prohibit the sale or distribution of tobacco products to minors. 2. Secondary Unit Ordinance The California Legislature passed three bills in 2016 that have substantive effects on the existing regulatory framework for secondary (accessory) dwelling units and upon junior accessory dwelling units. Towns/Cities and Counties throughout the state are now amending their zoning ordinances in response to the new laws. State law requires ministerial or non- discretionary review and approval of secondary dwelling units, subject to locally-adopted standards that retained a very limited level of local discretion as to their content. In addition, under the new state laws, secondary dwelling units are now required to be called “accessory dwelling units” (ADU). These bills are intended to remove regulatory barriers that have so far Attachment 2 Page 2 of 6 discouraged homeowners from constructing new second units and the Town’s Municipal Code needs to be updated to bring it in compliance with State regulations. 3. Density Bonus Ordinance The California State Legislature passed a number of bills (AB 2501, AB 2442, AB 2556, and AB 1934) in 2016 that substantially amended the residential housing density bonus statutes promulgated under CGC Section 65915. Under the new State law, local jurisdictions are required to amend their own affordable housing regulations (their zoning ordinances) to align with the amended statutes. Although the basic premise of the density bonus remains the same, the newly enacted legislation has thoroughly modified CGC 65915, with revised density bonus eligibility parameters, expanded and more stringent zoning concession mandates, and broadened applicability of the entire density bonus program (to now senior housing projects, mixed use projects, and redevelopment projects, as well as more typical new residential housing projects). Consequently, the Towns Density Bonus Ordinance must be rewritten. 4. Wireless Facilities Ordinance The wireless telecommunications industry is expanding as citizens’ demand more bandwidth for the data they consume. The Federal and State governments are passing laws to help facilitate expansion of wireless infrastructure. Companies such as Mobilite, Crown Castle and Zayo are wireless infrastructure providers, which build large and small cell facilities to provide wireless connectivity to carriers such as Verizon, Sprint, etc. These infrastructure companies are approaching the Town of Los Gatos, as well as all other municipalities in the area, to expand their infrastructure for the purpose of providing cellular connectivity currently as well as to begin to contemplate the advent of 5G coverage, which requires different equipment than 4G. The Town’s current Wireless Facilities Ordinance was adopted in 2003 to conform to the 1996 Telecommunications Act and is now outdated based on the ongoing changes to State and Federal legislation and leaves the Town unprepared for the scale of expansion that is on the horizon. Our current Ordinance only deals with the collocation of wireless facilities on existing utility poles. The above referenced wireless facility companies are now proposing installations in the public right of way. Such installations could be on existing Town-owned structures, such as street light poles, or could involve the companies putting in their own new poles. The Town needs to update its wireless telecommunications ordinance to address the current status of Federal and State law as well as to reflect best practices in siting and design standards to preserve the aesthetics of the Town but to also facilitate providing competitive, varied and high quality wireless communications service infrastructure. 5. Medical Marijuana Ordinance In 2011, the Town adopted an ordinance prohibiting medical marijuana dispensaries, cultivation, and delivery services. In November 2016, the voters passed Proposition 64, the Control, Regulate, and Tax Adult Use of Marijuana Act (“AUMA”). The AUMA immediately legalized the possession, transport, purchase, use, and transfer of recreational marijuana for individuals 21 years of age or older. Other provisions, including State issued licenses for large Page 3 of 6 scale cultivation, manufacturing, delivery and retail business, will be issued beginning January of 2018. Proposition 64 allows local governments to ban all marijuana-related businesses outright, including marijuana dispensaries, delivery services, and any recreational marijuana retail services and outdoor cultivation of marijuana, unless the California Attorney General determines marijuana is no longer illegal under Federal law (if marijuana is federally legalized, outdoor cultivation could be regulated, but not prohibited) and to reasonably regulate indoor cultivation in private residences, but not ban it outright. It is recommended that the Town Council needs to consider an Ordinance that amends the Town’s Municipal Code to recognize the new State pre-emption allowing individuals to have six living marijuana plants and any marijuana produced by those plants in their homes. The Ordinance also must modify language in the Town Code to update the ban to non -medical cultivation, delivery, distribution and retail, and other provisions of AUMA. 6. Update of the General Plan Safety Element In order to address fire protection and prevention, Senate Bill 1241 (SB 1241) mandates that the Town’s Safety Element be reviewed and updated as necessary to address the risk of fire for State Responsibility Areas (SRAs) and very high fire hazard severity zones including review of fire hazard severity zone maps. In general, SB 1241 requires that the Town’s Safety Element minimize fire risks and provide guidance on local decision-making to achieve this goal. 7. Hillside Fence Ordinance Amend the requirements for fences in the hillside areas to make certain that fences do not interfere with wildlife corridors and those fences do not impede the movement of wildlife. The amendment would define an "open fence" as one that permits all animals, depending on their size, to either climb under, pass through, or jump over any fence on the property, including side and back yards, and not just a front yard fence and specify that chicken wire, wire mesh, chain links, etc., over an open slat fence, is not considered animal- movement friendly. Clarify that the fence requirements applies to all hillside fences, not just to a fence associated with an A&S application. 7. Animal Ordinance The Town’s Animal Control Ordinance was adopted in 1971 and is very limited compared to other municipalities. As a result, the Town’s ordinance provides very little assistance in enforcing animal issues. For example, the definitions of a dangerous or potentially dangerous dog do not align with the definitions under State law and there is only an administrative procedure related to a post-seizure hearing. Therefore, in order to declare a dog potentially dangerous or dangerous in the absence of it being impounded, the Town’s only recourse is to file a court action. The Town’s Animal Control Ordinance also does not address barking dogs. Although our Noise Ordinance addresses barking dogs, the Animal Control Ordinance should be amended to reflect and address this issue. Furthermore, the Town’s Animal Control Ordinance also does not address the feeding of feral or wild animals on private property. This can be a health and safety issue as it draws nuisance animals to the property and impacts neighbors. The Page 4 of 6 Animal Control Ordinance should be amended to reflect and address this issue. The Town’s Animal Control Ordinance also needs to be updated regarding bee keeping and livestock keeping, to reflect current issues that have been brought to the Town’s attention by affected residents. 8. Appeal Process Ordinance Based upon the number of recent appeals, the Planning Commission and Town Council should review and analyze and potentially amend the appeals process. The Code changes could implement administrative processes and procedures that clarify who may file, the issues to be determined by Council on appeal, and the issues to be determined by Planning Commission if remanded back to the Planning Commission. 9. Short Term Rental Ordinance The Town currently does not have any regulations for short term vacation rental properties. Since the Town does not have any regulations, it has prohibited the rental of property for less than 30 days. The Town needs to study and analyze the impacts of short term vacation rentals on residential neighborhoods, the overall cost and availability of housing in the Town, and the revenue that could generated by short term vacation rentals. After studying the issue and receiving input from the public, the Council would determine whether to allow or prohibit short term vacation rentals. If allowed, staff would draft regulations that define Vacation Rentals as distinct from other rental types, make clear where Vacation Rentals may be allowed, limit the number of Vacation Rentals in neighborhoods where they may be allowed, establish application/licensing requirements and operating standards for Vacation Rentals, and define and establish operating standards for Home Stays in all residential districts. If they are to be prohibited, then language should be adopted into the Town Code specifically prohibiting short term vacation rentals. This was one of the revenue generating ideas that received at least three votes of the Town Council in 2015. 10. Public Nuisance Ordinance/Administrative Abatement Hearing The Town does not have a comprehensive Public Nuisance Ordinance related to the identification, definition, and enforcement of nuisances. Such an Ordinance would make identification of violations easier for residents and businesses to understand and thereby comply with, as well as to assist the Town in enforcing the Code and providing due process. The Nuisance Ordinance would provide a just, equitable, and practicable method for preventing, discouraging, and/or abating certain conditions which endanger the life, limb, health, property, safety, or welfare of the general public. Currently, the Administrative Abatement of Violations of our Town Code is antiquated and needs to be updated to allow for the enforcement of Code violations through administrative hearings effectively applied and administered in a fair, expedient, and cost-efficient manner. Page 5 of 6 11. Claims/Settlement Authority Ordinance The Town’s current claims ordinance has not been updated since 2003. With the passage of time, certain provisions have become outdated and other provisions have not historically been followed. This proposed update would conform the Ordinance to current practice, and update current settlement limits to allow for more expeditious settlement of claims and disposition of workers compensation claims. 12. Weed Abatement Ordinance The Town’s Weed Abatement Ordinance was adopted in 1968 and establishes a program and procedure to maintain weeds in an effort to eliminate hazardous conditions. The Town should update the Ordinance to expand the definition of weeds to include other dead vegetation, fallen limbs, and combustible trash on this parcel and add additional language to clarify and strengthen the Town’s weed abatement program. Additionally, ordinance amendments would assist property owners to understand their responsibilities in property maintenance. 13. Special Event Permits Ordinance The Town’s Special Event Permits Ordinance was adopted in 1992 and needs to be revised to streamline the process and provide the authority to approve such events within the Town Managers discretion as opposed to the Police Chief. 14. Drone Ordinance The Town does not have a Drone Ordinance. The issue of drones and Radio Controlled (RC) aircraft, otherwise referred to as unmanned aerial systems (UAS) is a growing concern for towns and cities with multiple incidents of interference with firefighting, other aircraft, and accidents. Towns/cities are attempting to address the dramatic increase in recreational UAS with various types of regulations and are beginning to enact regulations that supplement and/or codify federal law. The major challenge in drafting these ordinances is the federal pre-emption of this issue but a drone ordinance could regulate the following issues for the Town: 1) Protection of persons and property in the jurisdiction; 2) Aviation safety, including a specific prohibition against careless and reckless operations that endanger life or property; 3) Designated take-off and landing zones for UAS within the Town limits; 4) Identification of critical infrastructure within the Town limits, or immediately adjacent to its boundaries, with appropriate rules for operation of UAS in proximity to that infrastructure; and 5) Permissible hours of operation. 15. Noise Ordinance The Town’s Noise Ordinance was adopted in 1991. With the changes to the Town’s Entertainment Policy, the Town needs to analyze and determine whether the noise levels set forth in the Noise Ordinance adequately protect the residents of Los Gatos from unnecessary, excessive, and disturbing noise and vibration. Page 6 of 6 16. Motor Vehicle and Traffic Ordinance In the course of defending a traffic ticket appeal, it was revealed that there are some necessary changes to Motor Vehicles and Traffic section of the Code, Chapter 15. Specifically, Chapter 15 was adopted in 1968 and requires the Chief of Police to approve any street sign before obedience to same can be required. This section controverts the common sense requirement that street sign approval is the province of the Town Engineer; however it gives credence to challenges by litigious individuals. The rest of this Code section would also be reviewed for other needed changes. RWS