Cell Tower – Part Two

No_tower_here
Friday – September 27, 2013

What began as an effort by residents who reside near Pinole Valley Park to stop the City from leasing park property to Verizon to build a cell tower has evolved into a much bigger issue with what may be long term ramifications.
The Pinole City Council has placed the Cell Tower, Station 74 and the California State Parks and Recreation Grant issues on the agenda for Tuesday, October 1.
At this point the City as well as the State are in the process of researching the deed restrictions and the processes used to convert Parkland.
Meeting starts at 7 pm, 2131 Pear Street. Tuesday, October 1, 2013.
Agenda Here

10. NEW BUSINESS
A. Update on the California State Parks Grants for Pinole Valley Park [Council
Report No. 2013- 106; Action: Receive Report (Espinosa)]

The following is an excerpt from the Staff Report on Agenda Item 10A:

Background
“The City of Pinole processed and approved a Conditional Use Permit and a lease with Verizon Wireless for the lease of approximately 1,000 square feet of park space located in Pinole Valley Park. During the various discussions regarding the lease, numerous citizens expressed their concerns for the location of the cell tower, health issues related to radio frequency levels, and whether or not there were restriction on the park land. On August 29, 2013, Staff received a phone call from a State’s Park representative that the City had applied for a grant for the purchase of the Sobrante Ridge property (no known as Pinole Valley Park), and that there were restrictions on the allowed use of the property.
Staff was directed to investigate the facts and to confirm whether or not this was true. On September 19, 2013 Staff met with representatives from the California State Parks Department in order to determine the facts surrounding the issue of the park property being purchased with State and Federal Park grant funds and whether or not there were restrictions on the property that would disallow the cell tower to be located on park property.

Review and Analysis
As part of the City’s due diligence, Staff began pulling all records that the City maintained and found the following;
Grant Deed for the purchase of the Sobrante Ridge Property was filed on October 2, 1978
City Resolutions #1249, dated September 7, 1976, authorized the submittal of grant applications to purchase and develop the park. No resolution was discovered whereby the City received or accepted a grant for the purchase of the property.
Various maps of the parcel were reviewed.

During the meeting with the State, the State Parks Department provided us with additional background information and limited documents which we are reviewing now. We will present the information obtained and discovered at a public meeting to be scheduled in the near future.

For this initial report we have two issues to present. Information impacting the location of the cell tower and its lease, secondly, impact to Fire Station 74 which is also located within the park boundaries.

Use of the Park land
The basic issue is that Pinole Valley Park was purchased with State/Federal grant monies (1978) and at the time, according to State Park Representative there was a condition to restrict the property to “outdoor recreational use”. There is no evidence on the recorded deed or title of Pinole Valley Park that reflects this grant condition. The City Attorney’s Office is reviewing the documents to determine whether the restriction applies.

For the Cell Tower
With the Verizon cell tower located within Pinole Valley Park, the State has opined that the use of a cell tower is not in conformance with parkland use. Specifically, the State considers the cell tower a commercial use which is not allowed within the park. Furthermore, they do not consider a cell tower as a utility.
The State has stated that the park is supposed to be used only for “outdoor recreational use.”

Fire Station 74
It has been confirmed throughout the years that Fire Station 74 is also located on Pinole Valley Park property. This was also confirmed by State representatives at our meeting. By definition, a fire station is not designated as an “outdoor recreational use” although it is a public safety building.
Staff has reviewed its files and has determined that the City did subdivide the parkland to create a legal parcel for the location of the Fire Station, did perform an environmental review, did submit the property documents to the State Clearinghouse but sis not communicate with the State Parks Department for Conversion of the property. The State has indicated that they do not have any application for conversion of the property where Fire Station 74 is located.

Conversion Process
According to the State Parks Department, the parkland property is restricted for “Public Outdoor Recreation” purpose in perpetuity.
However, the grant funding regulations provide an option called a “Conversion” process. The “conversion” allows an application to be submitted to the State and National Park Service which permits a land swap for the conversion of the portion of park land being used for purposes other than outdoor parks. The converted land must be a new “outdoor recreational use”, not use of an existing park or existing open space.
State Park representatives informed Staff that the City has to be the applicant in order to process a conversion and that the conversion process could take a minimum of 2-5 years to process and some have taken as long as ten years.

Cell Tower
In exchange for the 1,000 square feet of cell tower space usage, additional square feet of new  “outdoor recreational use” property would have to be purchased and dedicated as such. in addition, a new study would have to be conducted to determine the “view shed” which includes the visibility of the cell tower from all angles which may or may not add additional acreage that has to be mitigated under the conversion process. This study is done by an independent consultant, to be retained by the City of Pinole.

Fire Station 74
As previously mentioned, Fire Station 74 is also located within the park boundaries. Moreover, it appears, through review of City files, that the City followed the typical process to establish a parcel and construct a facility including preparing an environmental document and sending it to the various agencies. It appears the City, at the time of building Fire Station 74, did not go through a “conversion” process to mitigate use of the park land. The State representatives indicated that they have no information/record that the City applied for or was granted a conversion.

Staff will continue to research old City files to see if there is any indication that a conversion was applied for and approved by the State. We are specifically looking through redevelopment project files for Fire Station 74 since the facility was built during this time period.

Non Compliance with Conversion Process
According to the State Parks Department, if the City does not comply with the allowed use of Parkland, the City may be subject to sanctions including, but not limited to, ineligibility for future State Parks and Federal grants.
Additionally, during the conversion process the City may be ineligible to obtain State and Federal Grants.

Due to the limited documents from City and State files, Staff continues to look through internal files as well as State’s files performing its research. Without a complete list of documents from the State, Staff is researching the information received and will be developing a list of additional questions for the State. The City Attorney’s office also needs time to review the documents and answer several legal questions.”

Cell Tower Gets Toppled!!

No_Tower

David has beat Goliath!
Yes, that persistent, hard working and passionate group of Pinole citizens that banded together to stop the City from installing a Verizon cell tower in Pinole Valley Park appear to have dealt the final and most crushing blow to this proposed project and claimed Victory!

Armed with just their passion and dedication, this group of residents  kept the pressure on the City as they fought for their park.
Their goal was to keep Pinole Valley Park for recreation use, not as a home for an 80 foot cell tower, and to ensure their park would be kept pristine for present and future generations to enjoy.

This battle has been waged at the grass-roots level. Grass-roots is defined as something that originates from the common people.
How appropriate that a grass-roots effort by common people has saved Pinole Valley Park’s grass, trees, creek and everything surrounding it.

The saga of the Cell Tower has been told on this blog from the time that the community first became aware of the City’s plans to move forward with the tower. I, personally, objected to the proposed location. But this fine group of citizens explored every possible method to derail this project and throw a monkey wrench into it. Monkey wrench delivered!

They won what appeared to be a major battle on June 16 when the Council rejected the lease by a vote of 4-1 with Swearingen dissenting.
But Verizon put the pressure on the City; on July 18 the Council reversed itself and voted to ratify the lease by a vote of 3-2, Green and Long dissenting.

This group (Pinole Preservation Society) has no officially elected leader, but, the monkey wrench hit its mark when Sal Spataro, with the help and assistance of others researched the Grant Deed used to purchase the park land.
Bull’s Eye!

Taking the proverbial bull by the horns Sal Spataro set out to contact someone at the State Park and Recreation department about the grant terms and conditions. He struck gold when he made contact with Cristelle Taillon, Project Officer Outreach/Special projects Grants and Local Services.
Ms. Taillon researched the Grant used to purchase Pinole Valley Park and discovered that the City was indeed out of compliance. Pinole Valley Park could not be used for commercial purposes and further that the City had improperly converted park land when they built Station 74.

It now appears certain that the City of Pinole will not be able to erect the tower and may be facing a difficult dilemma as it attempts to correct improper and incorrect actions taken by previous and present administrations.

This discovery raises serious questions about what has occurred over the last 40+ years with regards to this park land and how administration failed to realize that they were bound by grant deed restrictions.

What is unclear is how the City will deal with these issues.
Will Verizon select a new location in Pinole?
Will Verizon attempt to recover the monies it has spent to date for the proposed tower?
Will the city be embroiled in another legal action?
Will the City dismantle Station 74?
Will the City attempt to use the facility for recreation purposes?
Will the City need to review and revise its General Plan? The new General Plan apparently never uncovered the deed restrictions. How costly will that be?

It seems, at first blush, doubtful, that the City will elect to go through the lengthy and costly conversion process.
Every scenario points to new expenses at a time when the City is seeking ways to save money. The projected annual revenue from Verizon, $26,000 a year, pales in comparison what the City may end up paying to unravel this mess. The City has a projected reserve of 38%, will the City have to dip into the reserve to offset these costs?There remain many questions to be answered.

After months of research, meetings, communications, walking and talking to the community and challenging the City and Verizon, the PSP can claim victory. It is really a proud moment for the citizens of Pinole who took on City Hall, Verizon, all the legal pundits and everyone who thought this was a lost cause.

Kudos to all of you. I am honored to have played a very small part in this victory.

Matt Bielby: Comment

From your perspective what has been the biggest disappointment, lie, or flawed procedure during this entire process?
How do you sum up your feelings about our city?

“I am not quite as upset now as I was a few weeks ago, because I am optimistic that these grant conditions are going to keep this pole out of our park.  With that said this whole process has been frustrating and infuriating.  The thing that has upset me the most though, is to have one of the City Council members (who flip flopped, Pete Murray) turn around and on 3 separate occasions blame his constituents (the ones at the meetings) for not being more involved in the process earlier.  Especially in light of of the fact that he now admits to having given the City Manager authorization to sign a lease, a binding contract months before any notices or public hearing were even held.  Having been witness to the whole notification process (being one if the citizens within the 500 ft. notification area) I can accurately say that this process was done on the most minimal level possible, and in retrospect appears to have been a blatant attempt by staff to ram this thing through without anyone noticing.”

The community wins!

Tower Topplers Take on the City – Part One

Video

On Wednesday, September 11, 2013, the City of Pinole held a public workshop to address the issues surrounding the installation of a proposed 80 foot Verizon cell tower in Pinole Valley Park.

The meeting was intended to answer the long and varied list of questions that had been raised by the group opposing the cell tower.
It was the first time the “Tower Topplers”, also known as the Pinole Preservation Society, had an opportunity to address the City Manager, staff and Council with the expectation that their questions would be answered.
I think this comment made by Julie Maier to the community speaks volumes about the effort this group has made:
“I just love my little city and PV park and I don’t like what the City Council, the city manager and Verizon is attempting to do.”
Even Pinole Historical Society VP, Jeff Rubin stated, “It’s just a crummy place for a tower”.

The meeting on 9/11/13 has been described by some in attendance as a “dog and pony show”, and a long one at that. I don’t think this city has seen such a passionate response and such strong community feedback, since the R word was being spread in 2007.

The timeline provided previously shows that the lease for the tower had been slated for approval on the consent calendar on several earlier occasions. Consent calendar agenda items are normally approved without discussion or debate either because they are routine procedures or already have unanimous consent. They are typically non-controversial. Were it not for Sheila Grist, a resident opposed to the cell tower, it is likely the lease would have been approved without any public debate whatsoever.
This not only implies that the City Council was fully aware of the proposal and the lease agreement being negotiated by staff, with Verizon, but that they did in fact move the process forward.

There are two very important legal terms we must be cognizant of when discussing contracts and agreements:
Execution of a contract:
to complete; to make; to sign; to perform; to do; to carry out according to its terms; to fulfill the command or purpose of. To perform all necessary formalities, as to make and sign a contract, or sign and deliver a note.
Ratification of a contract:
The confirmation or adoption of an act that has already been performed. A principal can, for example, ratify something that has been done on his or her behalf by another individual who assumed the authority to act in the capacity of an agent.

The City Manager stated that although the Council did not officially authorize her to execute and sign the lease agreement, that they gave her and staff implied direction to negotiate and execute the contract. The City Manager, City Attorney, City Clerk and Verizon principals signed the lease and executed it on December 12, 2012.

The City Council, once they became aware of the strong opposition to the Tower, tried to extricate itself from the deal by rejecting the lease and not ratifying it at the June 18, 2013 meeting by a vote of 4-1, Swearingen dissenting.

Subsequently, as all hell broke loose and Verizon threatened to sue the City for not dealing in good faith (Verizon agreed to 9 of the 10 deal points the city requested) two of the City Council members who had rejected the lease in June, reversed their position, Murray and Banuelos,  and voted in favor of the lease at the July 16, 2013 Council meeting. The motion passed by a vote of 3-2.

Those in opposition believe that they have had the wool pulled over their eyes, that the city has not been honest and has not served the best interests of its citizens.

As the cell tower battle heated up the opposition banded together to fight the project using whatever means possible.


Among the arguments opposing the cell tower in Pinole Valley Park included, electromagnetic radiation, the desecration of Indian Burial Grounds, ecological consequences, the commercial use of the Park and the awful location chosen for the tower.
Last but not least the group’s research has uncovered another possible problem for the City; that the City accepted State and Federal Grants for the purchase of the land for Pinole Valley Park and therefore must abide by the Grant restrictions for its use.
The State of California has scheduled a meeting with the City for this week. It is not a public meeting, unfortunately.  But we are all very interested to discover if the City of Pinole has converted parkland without proper and prior authority.
The consequences of such a finding by the State and the Feds can be severe. If the City is found to have improperly converted land using State and Federal Grant money they could face financial consequences.

Anti-Tower Group Knocks One Out of the Park

Video

The Pinole Valley Cell Tower Battle Rages On
Wednesday, September 4, 2013

A dedicated and hard working group of Pinole citizens who oppose the Verizon Cell Tower in Pinole Valley Park has very been busy contacting elected officials, visiting county offices, looking up maps, records and contracts, researching land grants, contacting the California Parks Department as well as speaking to members of the Indian Nation in an attempt to stop the proposed Verizon Cell Tower in Pinole Valley Park.
At last night’s Council meeting, resident Sal Spataro may just have knocked it out of the park, literally.
He stated at the meeting that members of the group have been in contact with the State of California Parks and Recreation Department. The State’s Senior Project Officer, after some research, has advised Sal and the group that Pinole Valley Park is protected by the State because the property was purchased with grant money and that the land is restricted for recreational use only.
Watch Sal speak to the council .

Should this new and dramatic development prove to be true, the City Council may have the ability to save face and reverse their highly unpopular decision.

This battle has stirred the passion of Pinole residents on several different levels. Some oppose the cell tower for environmental reasons.
Some oppose it for aesthetic reasons.
All are up in arms about the flawed process that has brought this project this far with little if any public input.

The group has addressed the Planning Commission and  pointed out the flaws in the Planning Commission’s By-laws, specifically the lack of public information relative to the sub-committee’s findings (the PC sub-committee visited the site(s) in advance). The Planning Commission responded by revising its by-laws.
The group requested that the notification process be improved so that another situation such as the Verizon Cell Tower does not get approved with little if any advance notice to the public. The City has responded by including upcoming permit information in the weekly City Manager’s report.

This tireless group has made it their business to speak at City Council meetings and ask for answers to a multitude of questions regarding the process for approval of this project. The City has responded by saying that mistakes were made but to date there has been no explanation as to what those mistakes were, who made them and how the City intends to rectify those mistakes.

The group keeps hammering away. They want answers.

The Smoking Gun post shows the timeline for the project. Questions remain as to how a lease can be signed and executed without council ratification. How a lease agreement can be recorded without the Planning Commission’s knowledge and before they considered the Conditional Use permit (CUP). How and why the City Manager and the City Attorney signed off on the agreement before ratification by the Council. How and why Verizon considered the agreement signed on December 12, 2012, before Council ratification, to be a legally binding document.
These issues are mentioned in the Times article today.


There are many more questions that have arisen, far too many for me to list.

MARK YOUR CALENDAR
Those questions and the persistence of this group has prompted the City to schedule a:
Special Workshop for Wednesday September 11, 2013 at City Hall, 2131 Pear Street, start time is 6:00 PM.
The City will try to address the questions of the group.
The citizens have indicated that they want answers, not excuses.