Tower Talk Sparks Fireworks

fieworks
Tuesday October 22, 2013

An amazing display of kicking the can down the road took place at the Tuesday, October 15, City Council meeting amidst anger, heated council exchanges and a speaker’s mic being cut off.

Among the highlights (low-lights), took place about an hour into the meeting when Valley resident and citizen Julie Maier was cut off during her speech and her mic was turned off. The Mayor then asked that Julie be removed from Chambers.
Mayor Long told Julie, “Put it in writing and have it posted somewhere.”
It is in writing and it is posted right here.

Observation:
The Mayor had instructed all speakers to limit their time to 2 -2 1/2 minutes.
As Mayor she has the authority to “set the rules” for conducting the meeting.

Mayor Long took exception to the length of Julie’s Maier’s speech stating that at a previous meeting Ms. Maier had spoken for six minutes.
The record will show that Mr. Jack Meehan’s comments began at 9:18 pm and were completed at 9:23 pm. Mayor Long allowed Mr. Meehan approximately 5 minutes to speak.

Mayor Long on accountability and the process:
“People were accountable.
“We all make mistakes in our lives and we don’t cut our hands off because we did something wrong.”
“We could all have done a better job of bringing this to the public.”
“The thing is we jumped into this.”
“I still support your cause.”

Resident, Jack Meehan on competency:
“Extricate yourselves from a bad and costly situation. When you find yourself in a hole, stop digging.”
“There’s no need to be a lawyer to know and follow the law.”
“Not having competent authority, because you did not have and still don’t have the authority to abrogate, circumvent or ignore the Grant’s prohibition on commercial use of the parkland, that is the meaning of having competent authority.”

Resident,Soon-Young, on the process:
“As a community we want to be involved in the process. We were left out.”

Resident, Sal Spataro on the city government:
“I have to say that I have lost faith in the City government, we have a very weak city manager.” “She couldn’t be hired anywhere else and we hired her twice.” “The City Attorney, “he’s doing a good job for Meyers Nave, but for Pinole, not so much.”

Councilman Swearingen on the lease agreement:
“I don’t think we have the ability to rescind the agreement.”
“You just can’t say no.”
“We will try to please you people.”

Councilman Banuelos on the tower:
“Right now I’m still kind of torn, but the more time that goes on, the less I am in favor of this tower.”

The most heated exchange took place between Councilman Green and Councilman Murray:
Councilman Green demanded the Council take action immediately and rescind the contract. A contract he stated was signed by the City Manager without proper authorization. The City Manager was not present at this meeting.

Councilman Green on the lease:
“I think it’s ridiculous that we don’t rescind the agreement. “Let us show some courage and defend the citizens of this community.”

Councilman Murray:
“I’m not going to bother going into re-arranging the facts, because I’ve done it several times.”

Councilman Murray defended the council’s actions as well as staff’s and stated.
“Look it Phil, we know you don’t like the City Manager.”

Councilman Green:
“That’s not true Pete. That’s not true at all. Don’t be saying that if it’s not true.”

Councilman Murray:
“She signed a conditioned lease. The lease was not ratified until we ratified it.”
“But the point being is we re-negotiated.
“Blame us because we wanted to re-negotiate the contract.
“We asked for the moon and Verizon gave us the moon.”

Councilman Green:
“No. They did not. They did not give us what we asked for.”

Councilman Murray:
“God. Where do you come from? Where were you?”

Mayor Long steps in:
“Ok, stop. I have to agree with Phil. (Speaks to Murray) “You viewed it as negotiation. I viewed it as looking at deal points.” “That itself does not constitute the signing of a lease.”

Councilman Green:
“The City Manager did not have the authority to sign the lease. You did not (to Murray) come out and announce that decision in public. “Did you as Mayor announce that she had the authority to sign that lease?”
“Something wrong here.”

Councilman Murray:
“You’re re-writing history again.”

Councilman Green:
“These are the facts. “Let’s talk about the facts.”

Councilman Murray:
“These are not the facts. “You don’t know the facts.”
“When I listen to what you say sometimes I say, whoa, where is he at?”

Councilman Green:
“The council didn’t have the courage to say no to Verizon  is why we’re in the mess we’re in.”

Members of the opposition group wondered why the presentation, when published with the agenda, had not indicated that these were Verizon’s suggestions. Further, why was there no mention that a meeting had taken place with Verizon on October 7?
The lack of background information for the power-point offered the opposition no time to properly prepare for the meeting or to address the various options and in fact raised alarm throughout the community.

The most troubling options appeared to have been the possibility of placing the cell tower at Fire Station 74, directly across from Ellerhorst Elementary School and the possibility of Verizon invoking eminent domain on existing park property.

What seems abundantly clear is that Verizon is not going to walk away from their goal, to place a cell tower in Pinole Valley. What is also clear is that the City is spending large sums of money on legal fees due to this series of miscalculations and missteps. To date the legal fees charged by Meyers Nave for the Cell Tower since August 2013 exceed $17,000.

What is also clear is that the City is caught between a rock and a hard place.
If they rescind the lease Verizon may be poised to sue.
If they attempt to place the tower in the Park the State and Feds, who have deemed both the cell tower and the Fire Station as non-compliant, will face the likely prospect of all future grant funds being “frozen.”

What is the exit strategy? How will this besieged council handle this dilemma? They have opted to take a “time out’, giving everyone sixty days to look at the alternatives. But decisions must be made soon.

If the city and/or Verizon can locate a residential property owner in the valley whose location meets Verizon’s criteria then they may be able to extricate themselves from the Park Grant issue as it regards the tower.

I have been told that Verizon has approached at least one property owner on Pinole Valley Road about this possibility. My source tells me that Verizon has offered to take this individual on a casino junket and basically wine and dine him. Thus far he is resisting their overtures, but other adjoining locations could be considered.

Finding a comparable location that meets Verizon’s criteria could offer a way out of this major debacle. Verizon would get its tower, Pinole Valley Park would be left untouched and the City could avoid a legal battle with Verizon.

However, that $26,000 projected revenue source? Kiss that baby goodbye.
In its stead the City is incurring attorney fees daily and will likely have to reimburse Verizon for some of its fees.

On the heels of the Tower Horror the City will need to decide how to move forward with the non-compliant status of Fire Station 74. More expenses, more work, more time, more legal fees and bottom line, more costs to us, the taxpayers.
Conspicuously absent from these machinations, the Concerned Citizens of Pinole.

The City Council on Tuesday, October 15, decided to take the path of least resistance. They have signed a tolling agreement with Verizon which allows the city 60 days to continue to research city files and records, communicate with the State and attempt to mitigate the cell tower location.

There are many lessons to be learned from this frustrating exercise in futility.
Clearly, transparency, accountability and due diligence have proved to be kryptonite for this council on this issue.

But, perhaps, the most troubling and unfortunate reality is that this is not a new lesson we are learning.  Rather, this is a repetition of previous contractual errors made by the City when dealing with corporations and signing contracts.

It is a lesson the city should have learned from past flawed development contracts, contracts that were one-sided and did not favor the city (us) contracts that were only reviewed by legal council as to “form.”

The need for better oversight and greater due diligence, was an issue discovered by Interim City Manager Charlie Long during his tenure. We were promised better government and better standards.
These standards should have been in place long before Verizon entered the picture.

Julie Maier Sounds Off

No_Mic
At the Pinole City Council Meeting, Tuesday, October 15, 2013, resident Julie Maier was in the midst of her speech regarding the cell tower, when Mayor Long turned off her mic and asked that she be removed from the Council Chambers. Mayor Long said to Julie, “Put it in writing and have it posted somewhere.
Here it is.

Julie sent me this email:

“I am attaching my written speech from the other night that was cut off. The portions in italics I did not read at the meeting since I knew I only had 2 minutes, but as you saw I still went over. It is the last portion with bulleted points when my mic was turned off and Debbie continued to interrupt me. I am especially proud of my final comment about earning our respect and admiration but I have no idea if they heard that at all. You can use all or portions of it, whichever you like.”

“Still two days later what is most upsetting to me is that I spent almost two hours writing and careful preparing what I wanted to say, in large part due to the alarm the copy of the staff report caused among our group and the Ellerhorst community, and I was only afforded 2 minutes to present my views. If staff had included just a single slide at the beginning of the handout of their presentation that clearly stated that these are options Verizon suggested in a brainstorming session and the staff has not agreed to any of them or is not recommending any of them tonight, then all of these people would not have spent 5 days sick with worry and outraged that staff did not appear to be listening to council’s direction. I still had a lot to say about the entire process of this lease and also wanted to share what I am looking for in terms of values and leadership skills of my city council. I found it impossible to condense that into a three minute or two minute speech. While I can understand the need for time limitations when speaking at council meetings, I also think they are arbitrarily applied since many speakers that evening were not stopped at 3 or 2 minutes and because I have also spoken longer than 3 minutes in the past. I do wonder if I was stopped because the mayor and some council members did not want to hear the challenge I was placing in front of them. I will need to continue to work on my editing skills and also consider other venues to get my views, concerns and questions across to the council. I was very appreciative of Phil Green’s support of my right to heard and finish my speech.”

The Speech

Thank you forgiving me the opportunity to speak to you tonight.

Cell Tower lease site and Station 74, although connected by the fact that both are in the boundaries of Pinole Valley Park, are separate issues. That was very clear in the comments made by the council and many speakers at the Oct. 1st meeting. Staff was told at that meeting to proceed on their fact-finding mission and bring back information on Station 74 conversion and the cell tower lease as separate issues. Most of the council members also stated at that meeting that the cell tower was obviously not going to be built, but that we had to deal with issue of Station74 and that Verizon had to be informed of these new restrictions from the State and National Parks.

A very big concern for the council has been fiscal ramifications of Verizon’s lease being rescinded and conversion of the Station 74 site. You said you had to consider the effect on current and future state and federal grants—this was especially a concern for Councilmember Baneulos and Councilmember Swearingen wanted “whatever deal was best for taxpayers”. Losing grants would certainly not be good for the taxpayers. Having to repay for Verizon for costs they have already incurred in addition to some restitution for rescinding lease is also not ideal. However, I don’t see how the city is going to avoid losing some money on this bungled lease development that should have been fully researched and vetted before any memorandum of lease or permits were signed. The city staff and the committees and council members who approved their actions without doing their homework are responsible for this financial mess.

Since the state parks grants have clearly delegated that no commercial use is allowable in park, therefore I do not believe eminent domain is an option for Verizon. Although this commercial phone company claims to be a public utility they have no right to this property without exigent need which they have never proven.

Due to those state park grant restrictions, the City manager and City attorney were not legally competent to agree to a lease without being fully informed, so lease is voidable as Mr. Meehan so clearly explained at the Oct. 1st meeting.

Yet now, two weeks later staff returns with the most ridiculous idea yet, building a cell tower at the gateway to the valley…across the street from our local elementary school. You cannot kill two birds with one stone in this case. Remember they are separate issues. I unfortunately no longer trust that staff has the best interests of the Pinole residents at all.

Here is what I am requesting tonight of my elected officials:

First, I want you to stop treating these presentations, suggestions and recommendations from the staff as holding merit or serious of consideration.

Second, I want you to stop allowing the city staff to stall the end of this cell tower lease. I am not sure of staff’s motives, but they either are still trying to hide their incompetence or they more interested in Verizon’s interests than those of Pinole residents.

Third, please to stop spending precious time and energy protecting staff and extolling all that has been learned from the uncovered mistakes and blunders that have been discovered. Our city manager admitted at the 9/11 meeting that she made a mistake by signing the addendum to the lease without your approval and accepted full responsibility. This was big step forward. She made a HUGE mistake and admitted it. There is no need for you to continue cover that up or take partial blame. She expected she would get your approval, but then you voted against approval so she was left with a BIG mess to extricate the city from. Don’t spend your time helping her to find a “duct-tape” solution or explanation. They were not competent to execute the lease, so stop trying to protect them and say they are competent and were not responsible for the disaster that has occurred.

Fourth and VERY importantly, please stop backing down from Verizon’s threat. They are acting like a big schoolyard bully. Our park, our elementary school, our city does not belong to Verizon! Pay them for their expenses so far and perhaps some other other restitution for their time & trouble and then tell them to move on. I am not scared of Verizon and they are NOT going to build a cell tower across the street from my daughter’s school or restricted state park land and scared Native American sites. I don’t want you to be scared either. I don’t really care how committed they are to a site in a valley. We are just as committed to keeping our families, our neighbors, our children and our school staff safe. Stand up to them. Demonstrate leadership. How about for once, following Councilman Green’s lead and taking action to protect the residents of our great city?!

I truly think that City staff and Verizon believe they can wear us down and eventually we’ll give up. We may be tired of these games, but we are not going away or backing down. Verizon is NOT building a cell tower in our park or next to our elementary school. It is NOT going to happen…with or without your leadership and support.

You have a choice to make tonight. It is choice I have challenged you to make at other meetings over the summer.

  • I challenge you TONITE to put your constiuents before city staff reputation and agendas.

  • I challenge you TONITE to put the safety, health and quality of life of the residents of Pinole before the corporate interests of Verizon or any other corporate entity that wants to do business in our town.

  • I challenge my City Council to choose citizens over paid staff, choose citizens over Verizon.

Rescind the Verizon lease tonight. It is the only ethically and morally correct action to take at this point. The state and national parks have told you it is not allowed and illegal. Your constituents, including children, have begged you for months to listen to their concerns and ideas. These concerned citizens dedicated their personal time, the legwork, and a fair bit of funds to uncover a lot of missing information about the park, safety concerns, and the history of the proposed site and we discovered a way out of this lease for the city.

You have a responsibility to us…your office does not obligate our respect or admiration. You have to earn that….and you have one more chance to do so tonight.

Thank you.

Pay the Plumber

As citizens prepare to attend tonight’s City Council meeting, I thought it was appropriate to provide you with Jack Meehan’s statement to the City Council on October 1.

If the Council has clearly understood the message, not just from Mr. Meehan but from the residents in Pinole, they will do the right thing for their constituents tonight and terminate the lease agreement with Verizon Wireless.

Cell Tower – Follow the Bouncing Ball

bouncing-ballFriday, October 11, 2013
Just when you thought it was safe to go into the water….
The City of Pinole and Verizon’s effort to place an 80 foot monopole in Pinole Valley Park may have come to a screeching halt, temporarily, but that hasn’t stopped the City and Verizon from looking for another way to build a cell tower in the Valley.

At the October 1, 2013 Council meeting Mayor Long and Council member Green asked that the Tower and the Fire Station issues be separated.
Mayor Long asked that that action be placed on the agenda for Tuesday October 15, 2013. However, Tuesday’s agenda clearly shows that this chess match is far from over.
Agenda HERE

Among the options (below) being considered is the Co-Location of the Verizon Cell Tower at Fire Station 74 on Pinole Valley Road. Fire Station 74 has been the subject of controversy since its closing in July 2011.
This new option will have to go through a lengthy process before it is even viable, but perhaps the most significant, issue from residents’ point of view, is the close proximity of the Fire Station, to Ellerhorst Elementary School, which is 0.1 miles away and directly across the street.
Placing a cell tower in this location, in the shadow of the Ellerhorst schoolyard, may meet stiff resistance from environmentalists and from parents of students attending Ellerhorst.

Fire Station 74

Ellerhorst Elementary School

Action: Receive Report & Provide Direction (Reyes)Agenda item number 9C under Old Business:
C. Consider Options Regarding the Lease Agreement with Verizon LLC for a Wireless Cellular Facility at Pinole Valley Park [Council Report No. 2013-111;

Pinole Valley Park, Verizon Wireless Lease
Update on Verizon Cell Discussions

  • Continue to Research City Files
  • Legal Research
  • Meeting with Verizon
  • Follow Up with State Parks
  • Options

Legal Research

  • Review State Parks Regulations
  • National Parks Service – Furloughs

Meeting with Verizon
Verizon’s Options

  • Conversion
  • Temporary Use Permit (until alt. site is located)
  • Co-locating on Fire Station 74 property

Cost to Relocate Cell Tower

  • Estimated at $300 to $400K
  • Viable Sites

Meeting with Verizon

  • Process Timeframe
  • Three year process to obtain site approval
  • Committed to site
  • Site must address Verizon Plans
  • Coverage

Follow up with State Parks

  • Clarification on Conversion Process
  • CEQA, NEPA, Section 106, Build Plan
  • Timeframe

* Section 106 of the National Historic Preservation Act of 1966 (NHPA) requires Federal agencies to take into account the effects of their undertakings on historic properties, and afford the Advisory Council on Historic Preservation a reasonable opportunity to comment. The historic preservation review process mandated by Section 106 is outlined in regulations issued by ACHP. 

Use of Facility

  • Temporary and Long Term
  • Reuse for Outdoor Recreation Purposes

Options

  • Conversion Process
  • Up to Five (5) Year Process
  • Current and Future Grant Funding
  • Temporary Use of Site
  • National Parks Service to determine replacement acreage
  • Appraisal of existing park and replacement site
  • CEQA, NEPA, Section 106 on existing and replacement site

Options

  • Co-Location of Cell Tower/Fire Station
  • One application for conversion
  • Reduces risk of lawsuits
  • Use of facility while proceeding with conversion

Options

  • Tolling Agreement (see legal definition below)
  • Allows time to discuss alternative options with Verizon and State
  • Furlough of Federal Workers
    A tolling agreement is an agreement to waive a right to claim that litigation should be dismissed due to the expiration of a statute of limitations. Its purpose is typically to allow a party additional time to assess and determine the legitimacy and viability of their claims and/or the amount of their damages without the necessity of filing an action. During this period, the parties waive any defense by way of any statute of limitations which would otherwise arise during such period.
     

    Termination of Lease

  • Legal and Financial Ramifications
  • Eminent Domain
    Definition of Eminent Domain:

    “Eminent Domain” – also called “condemnation” – is the power of local, state or federal government agencies to take private property for “public use” so long as the government pays “just compensation.” The government can exercise its power of eminent domain even if the owner does not wish to sell his or her property.

The City Council meets on Tuesday, October 15, 2013.
If you wish to address the City Council on its plans for the Cell Tower, Fire Station 74 and the options they are presenting, please attend the meeting.
Agenda here.

Let Them Eat Cake!

Tower_Cake_croppedTuesday, October 8, 2013

This past Saturday a picnic took place in Pinole Valley Park. So….?
Yes, that in and of itself is not a big deal. What is a big deal is that the picnic was planned, set-up and attended by 40-50 Pinole residents who have been involved in one way or another with the effort to stop the Verizon Wireless Cell Tower from being built in Pinole Valley Park.

There was food, fun, kids, dogs, music from Gutierrez Sounds and the No to the Cell Tower cake (pictured) donated by the Bear Claw Bakery. Who says you can’t have fun while fighting Goliath (Verizon) and City Hall? The day was spectacular and spirits were high. There was enough great food to feed a small army, and yes, the small army came with an appetite.

The Tower Topplers have grown in numbers and their passion and energy has neither diminished nor subsided. They are ready to collectively roll up their sleeves and do whatever needs to be done to see that our city and those who run it are accountable to its citizens.

Next up, the October 15, 2013 City Council meeting.
Look out world!

The Cell Tower – Nearing the Finish Line

Thursday, October 3, 2013

View the City Council meeting here
The Pinole citizens group that has banded together to fight the City and Verizon’s plans to erect an 80 foot cell tower in Pinole Valley Park is nearing the finish line.

finish_line
All that remains is for the Pinole City Council to rescind the lease signed by the City Manager and City Attorney in December 2012 and later ratified by a split council on July 16, 2013.

That action (to rescind the lease agreement) may be agendized for the October 15, 2013 Council meeting.

The National Park Service had indicated to the group, when contacted about the proposed cell tower in Pinole Valley Park, several months ago, that the cell tower was “just the tip of the iceberg”. Indeed.
Pinole Valley Park was purchased with Federal Grants and therefore is subject to very specific deed restrictions. The land can only be used for outdoor recreation purposes, in perpetuity.
The State has notified the City that the cell tower can not be built in Pinole Valley Park because the land can not be used for commercial purposes.
This was a significant victory for the group which took the initiative to research the grants and to contact the National Park Service. The little engine that could!
This group of ordinary citizens has spent countless hours and spent their time away from their families to do whatever was necessary to stop their beautiful park from being scarred with an ugly cell tower.

But, the biggest surprise has been (the tip of the iceberg the State referred to) the State’s contention that Pinole Valley Fire Station 74 did not meet the deed restrictions terms of use, and therefore the City was out of compliance. Bringing the Fire Station into compliance would require a lengthy and costly conversion process.
We (the cell opposition group) will be following this situation closely as it proceeds. It has been a surprising and unexpected by-product of the fight to keep the cell tower out of Pinole Valley Park.  This is, of course, of great concern to the group and the City.

On Tuesday the City Manager presented a report which sought to explain what the City had learned, what it was trying to do and what more needed to be researched.
Staff, the City Attorney and several Council members’  position is that more research is necessary. City Manager Espinosa stated “We are still researching. The more we research, the more legal questions we have.” City Attorney Ben Reyes stated, “We really need to review what our options are. The project (cell tower) is on hold and no building permits will be issued.”

Council has been quick to defend staff and its due diligence, citing the lack of information or records, no evidence of grant deed restrictions and records that were lost in the explosion of 1998. However, the two projects in question post date the 1998 explosion.

The Council seems ready to tackle the cell tower issue first and separate the two issues. There appears to be some hesitancy on the part of several council members who admit that mistakes have been made and do not want to make more mistakes.

Council member Murray, “Instead of throwing our hands up do a little research to see what path will be travelled.” “We are on a fact finding mission.” “So that we don’t trip and fall and make another mistake.” “So that we do not make quantum leaps anymore.”

Council member Swearingen, “We spent over two years talking and working on this project.” “We just didn’t do this overnight.” “Opposition didn’t show up until six months ago.” We obviously didn’t do our job, we didn’t alert people.” “We took a lot of time to get where we’re at and did our due diligence.” “It may have been a mistake. “It may have been wrong to do it.” “Now we have a lot more diligence to do.”

Members of what we call the Cell Tower Topplers were unwilling to let the Council and Staff off the hook.
A member of the group summed it up succinctly.
Soon-Young, “I hope we learned a lesson.” “Going forward, if you plan these kinds of things for the future, notify us citizens.”

The most emphatic argument to stop the cell tower and to stop it now was made by former Pinole Mayor Jack Meehan.
“I have to say very frankly that right now you’re groping for a duct taped repair job on a flubbed process.” “When you authorized or directed the signing of the lease you as a council were not competent to authorize and sign the lease.” That means there is no lease, it means it is void or voidable.” “The City should resolve to rescind and extinguish all matters regarding dealing with Verizon.”

“If you get a bill from a plumber for flushing out the facts that should have been brought out by diligent search by staff, by the applicant and by others involved in this matter, including attorneys, Sal the plumber, I suggest you send the bill to Myers Nave, the legal firm.”
“You are not obligated to build a cell tower there.” “Why not put it to rest now?”

According to an article in today’s Contra Costa Times, Verizon has stated, “Verizon Wireless anticipates working with the city to resolve any issues necessary for the parties to amicably fulfill their mutual obligations.”
Will Verizon walk away without a fight? That remains to be seen.

The cell tower topplers are ready to take a  victory lap, they are about to cross the finish line. It is a fine example of citizens doing the right thing for all the right reasons.