Cell Tower – The Next Chapter

No_tower_here

The battle between Pinole residents opposed to the construction of cell towers continues.
The initial battle waged in 2013 was won by the “Tower Topplers”.
That battle centered around the construction of a Verizon cell tower in Pinole Valley Park.
The newest Verizon proposal is for a cell tower on private property.
Members of the “Tower Topplers” are citing various health and safety concerns as well as the proximity of the cell tower to residential homes. The Pinole ordinance has been changed to allow a cell tower to be within 100 feet of a residence.
This new proposal was rejected by the Planning Commission.
However, Verizon is appealing that decision before the Pinole City Council on February 9, 2016.

Below is a commentary sent to “Life as I Know It”, by Tony Gutierrez, a member of the “Tower Topplers”.

Background
The Pinole City Council has scheduled an appeal/public hearing on Feb 9, 2016 at 6pm at City Hall.
The meeting is for discussion and voting on the Planning Commission rejection of Verizon Wireless’ application for a conditional use permit to install a new cell tower in Pinole Valley .
The Pinole Planning Commission rejected the application, on November 16, 2015, citing at least 7 reasons, involving zoning and inappropriate and dangerous citing in a residential area.
A little history: Three years ago, the City of Pinole , despite fierce local opposition, signed an agreement with Verizon, to erect an 85 ft cell tower in a forested area of Pinole Valley Park , in close proximity to many residences.
The tower was stopped when the State of California informed the City of the illegality and potential legal actions they faced, due to violation of Federal law.
The Feds provided the funds to buy parkland, administered by the State Parks and Recreation. . That grant money is heavily restricted and land purchased for parks cannot be used for commercial purpose and came with the caveat that the and can be used for “outdoor recreational uses only”.
There is a question of whether or not Verizon knew that the City had to right to lease the lands to Verizon Wireless.
The City of Pinole has pleaded ignorance, however now deceased Council member Green said that he had informed Council that the lands could not be used.
Council member Green had said that when the first time he was on the Pinole City Council he had wanted to develop the lands for high end properties but had run up against the limitations back then.
The City of Pinole went ahead with the deal with Verizon to see if it could backdoor this facility in while no-one was the wiser.
When the State of California found out about the agreement with Verizon to use protected parklands for a Cell Tower , the State notified Pinole that this was illegal.
When the State came down to inspect the location of the plot rented out to Verizon they also noted that Fire Station 74 had been illegally built on protected park lands as well.
The City of Pinole was given the option to “convert” the two properties or demolish the fire station.
In the case of the fire station the City opted to convert the parcel and purchased two parcels of privately owned undeveloped land on Pinon Avenue in Old Town Pinole (Downtown).
So now the City of Pinole not only has a fire station that they have not been able to open but has spent nearly $300,000 to buy lands for a park that sits idle because the City has no funding to develop it for public use.

The deal with Verizon went up in flames and Verizon threatened to sue the City of Pinole . Verizon and Pinole signed an 18 months Tolling Agreement to freeze the Statute of Limitations.
Subsequently, Verizon and Pinole have signed a Settlement Agreement which says that Pinole will do their due diligence to help Verizon secure a replacement property to find as a replacement for the park location and allows for Verizon to collect financial damages to recover money that Verizon spent to do the studies to receive the original Conditional Use Permit (CUP) for the Park Location.

Verizon has stated that they had expended $350,000 to obtain the CUP. Verizon is on record stating that they have looked at alternative cites (aside from the Park location) for the cell Tower. The first of these locations was also on illegal park lands and was the same location that Fire Station is located. At the time the considered this location the parcel had not been “converted”.
The second alternative location was on a private parcel owned by Cleddy Mackay (Mack’s property) on Pinole Valley Road adjacent to the original park location. This location was not allowed by the State of California because this location required an easement through the park for maintenance purposes of the Cell Tower .
This was considered a commercial use by the State and this location was not suitable.
The third alternative location was once again with a private residence and this location was abandoned because the land behind the property was too close to the creek which is subject to landslides.

Now Verizon has found a resident who has agreed to erect a tower adjacent to his house, on private property, next to subdivision homes in Pinole Valley .
The Planning Commission on November 16, 2015 rejected the application for the Conditional Use Permit on the following grounds:
1. Hydrology and Drainage Issues off of the site and towards the creek
2. Aesthetics of the tower are not compatible with the residential neighborhood
3. Aesthetics of the project not compatible with a single family area
4. Diesel Generator is not compatible with a single family area
5. Concerns about perching the Tower on the edge of the property
6. Vegetation for screening is inadequate
7. Concerns on the load on the top of the hill on the bottom of the hill Verizon has now filed an appeal of the decision of the Planning Commission.

This is what will be heard on February 9th.
Unfortunately, The City of Pinole is not very clear on the process for the appeal.
In fact according to the City, the hearing will be a hearing de novo, which has residents uncertain about the procedures since apparently the procedural issues for the hearing de novo have not been codified by ordinance.
Also many residents have raised the issue of whether or not there exists a conflict of interest with the City Council of Pinole being the body to hear the appeal/hearing de novo because of the terms of the Settlement Agreement with Verizon for the original mis-steps of approving a lease agreement and a CUP for the original park location for the cell tower.

Tony Gutierrez

 

 

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