The Smoking Gun

Tuesday, August 20, 2013
The “Smoking Gun”

I have been sent a video, some data and a timeline (below) by Pinole residents who vehemently oppose the proposed Verizon Cell Tower in Pinole Valley Park.
They believe that the City Council has not been completely forthright and honest regarding their knowledge of the lease agreement with Verizon or the series of events.

The January 15, 2013 Council meeting video clip (above) shows that the City Council was aware of the lease. It also shows the City Clerk notifying the Council that the lease agreement had been signed, filed and recorded. The clip shows the City Manager stating that the council was aware of what was going on. In the video Mayor Long asks, “it went through Planning?” City Manager Espinosa states, “Yeah”. The Planning Commission did not approve the CUP until March 25, 2013.

During the July 16, 2013 meeting the Mayor dares Verizon to provide written documentation of a contract agreement. The video for that meeting seems to contradict earlier statements. July 16 video here (comments are approximately 3 hours and a half into the meeting).
City Attorney Ben Reyes survived an attempt to oust him for his part in this legal morass by a vote of 3-2. The same council members who voted on July 16 to ratify the agreement, Murray, Swearingen and Banuelos, voted to retain Mr. Reyes’ services.
To date there has been no indication that the Council plans to take any action against City Manager Belinda Espinosa for her part in these procedural mistakes.

The Cell Tower Timeline
There are two things that Verizon needed to put a tower in the Park:
1. A lease from the city for the land to be rented by the city to Verizon
2. A Conditional Use Permit (CUP)
These are two parallel processes.

2011
* The Pinole Historical Society receives a letter regarding a proposed T-Mobile cell tower at 3790 Pinole Valley Road. This location is near the dog park.

* The Planning Commission Sub-Committee meets at a site to do a walk through.

February 21, 2012
* Agenda item 3.B, closed session. Conference with real property negotiator GC 54956.8. Property location, 3790 Pinole Valley Road. (cell tower)
After closed session no announcement was made by Mayor Murray regarding this item.

December 12, 2012.
* Verizon contract signed by, City Manager, Belinda Espinosa, City Attorney, Ben Reyes, City Clerk, Patricia Athenour.
Verizon Area Vice President Walter L Jones, Jr. signs agreement on behalf of Verizon.

February 5, 2013
* Report 2013-10 item 7D shows property address as 1270 Adobe Road.
Ratify approval of a lease with Verizon for a Cell Tower at the Pinole Valley Park, address 1270 Adobe Road.

* First page of the staff report indicates that the Planning Commission will review the CUP in April. City Manager Belinda Espinosa states on the record that “it has not been sent over to Verizon or anything like that”.

February 19, 2013
* Verizon item is not on this agenda.

February 2013
* Residents receive a Notice of Intent to Adopt a Mitigated Negative Declaration dated February 13, 2013.

March 2013
* Notice of Public Hearing received by residents post dated March 13, 2013.

March 25, 2013
* CUP goes before the Planning Commission. CUP is approved by a vote of 4-3.

April 16, 2013
* Agenda item 9.C, old business.
Approve the lease agreement with Verizon Wireless for a cellular tower at Pinole Valley Park. Mayor Long announced that Item 9C was being held over to May 7, 2013.

May 7, 2013
* This item did appear on the May 7, 2013 agenda but as a closed session item.
The Council adjourned closed session at 10:17 pm and Mayor Long announced there were no reportable actions from Closed Session.

June 4, 2013
* Item 3.A, closed session. Continued from April 16, 2013.
Ratify the lease agreement with Verizon Wireless for a Cellular tower at Pinole Valley Park. At 7:20 pm Mayor Long reconvened the meeting and announced there were no reportable actions on the items.

June 18, 2013
* Agenda item 3.A, closed session.
Conference with real property negotiator, Verizon, LLC, lease price and terms.
Mayor Long reconvened the open session meeting at 7:20 pm. She announced there were no reportable actions from closed session.

June 18 agenda item 9.C (old business). Continued from June 4, 2013.
* Ratify and approve the amendment to the Lease Agreement with Verizon Wireless, LLC for cellular Tower to be located at Pinole Valley Park.
Failed by a vote of 4-1. Dissenting, Roy Swearingen.

July 2, 2013
* Verizon Wireless legal representative Jim Hearn states that “Verizon Wireless has a valid existing and binding lease”.

July 16, 2013
* The Verizon Lease Agreement is ratified by a vote of 3-2.

Conclusion:

Verizon spent some money meeting the demands of the Conditional Use Permit on a piece of property that they did not technically have a lease for.
Why? Because in order to obtain the lease Verizon needed the approval of the City Council, they council had not ratified the agreement and did not ratify it until July 16, 2013.

Question:
At what point was the City Manager given direction by the City Council to execute the lease agreement with Verizon?
There are differing opinions on just when the City Council gave direction to staff.

Question:
Did Verizon receive the approval of the City Council before they invested in the necessary processes to obtain a CUP? We believe that it did not.
Why?
Because it was never reported in either closed or open session that the Council gave approval to the City Manager to execute the lease with Verizon.

Point:
The City Manager and the City Attorney did sign a lease with Verizon without City Council ratification in December 2012.

The Mayor is saying that the City Manager “Misconstrued” the council’s direction at the February 21, 2012 closed session City Council Meeting.

Point:

The January 15, 2013 City Council meeting video clearly shows that the Council was notified of the lease, the recording of that lease and the location in Pinole Valley Park. But there were no objections, discussion or  questions raised pursuant to this lease agreement and the apparent filing that the City Clerk reported on that date.

Point:

At the February 5, 2013 City Council Meeting, ratification of the Verizon Lease appeared on the Consent Calendar for this meeting (the City Manager prepared the Agenda for the Meeting).

A resident went to that meeting and demanded that the Verizon Lease be taken off of the consent calendar because at that juncture there had been zero public input on the Verizon Lease. The Mayor obliged.

Point:

The Agenda under the Verizon issue of the Consent Calendar with the corresponding staff report (2013-10), written by the City Manager, states that the City Manager was given permission in closed session on February 21, 2012 to sign a lease with Verizon.

This is what Pam Nobel of Verizon was reading at the City Council Meeting where the Council approved the tower.

Point:
Note it states that approval was granted in closed session, however it was never reported in open session, by Mayor Murray, nor in the minutes of the February 21, 2012 Council Meeting.  

Point:
Pete Murray who was Mayor on February 21, 2012 went on record at the July 16, 2013 meeting claiming that the City Manager did indeed have the Council’s approval to sign the lease with Verizon.   

Point:

February 2013
The second thing that Verizon needed was a Conditional Use Permit from the Planning Commission.   In February of 2013 residents approximately within 500 feet of the location of the tower were informed of a negative impact mitigation hearing.

March 2013
In March of 2013 these same residents received notification of a Public Hearing on the Conditional Use Permit.  Residents went to the meeting and learned more about the plans.

The plan called for three co-located wireless carriers with the possibility that each carrier will have their own generator (Verizon was asked if they would share their generator with the co-located cell phone companies and they explicitly said no).

Winston Rhodes, City Planner, was asked if this meant that the plan could possibly have three carriers each with a 132 Gallon tank of diesel fuel.  He said yes.  Consequently the plan actually calls for almost 400 gallons of diesel fuel in a high fire location (red zone).  However Mr. Rhodes assured us that each carrier would have to go through their own separate Conditional Use Permitting (CUP) Process.

The common denominator on the lease and the CUP resides with the City Staff, and the buck stops at the City Manager’s desk.

Two separate processes were parallel, except they intersected at the City Manager’s Office.  Parallel lines that intersect are no longer parallel by definition.  And that intersection is the City Manager’s Office.

Point:
Who knew what and when on the Council and on the Planning Commission is open to conjecture.

As taxpaying residents, we strongly feel that we are owed an explanation of all mistakes made, of misinformation given, to the minutest details, since we are now forced to live with the onus that Verizon has everything that they need to build the Tower in our park, very near our homes and Verizon has complete control of this park property.

The Planning Commissioners, some on the record, and some off the record have told us that they did not know that the lease had already been recorded at the Contra County Clerk’s Office at the time that they approved the CUP in March of 2013.  This appears to be true as evidenced by the time line we have put together. 

How can a process put into place to protect the residents and taxpayers of this community be circumvented and be done without the community’s input?
Why are our elected officials suppressing the truth and being less than open and transparent?
Residents will hold our elected officials accountable. Our elected officials should hold staff accountable.
We are disappointed in our elected and appointed officials. They have shown a complete disregard for the wishes of their constituents.

One thought on “The Smoking Gun

  1. Thank you Ivette for once again taking the brave stand to expose the hidden truth and mistakes of our city staff and council. I appreciate having a forum where I can find all of the facts. This video clearly shows the misdeeds of our city government and the timeline events illustrates the secrecy and deceit of the city staff and government. Great work by your fact finders and checkers too.

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