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!

The Smoking Gun

Video

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.

Pinole Council Reverses Cell Tower Decision

celltowerThursday, July 18, 2013

The Pinole City Council on Tuesday July 16, reversed its decision of June 18 and voted 3-2 to ratify the lease agreement with Verizon to erect a 78 foot monopole, camouflaged as a faux tree on Adobe Road in Pinole Valley Park.

The council chambers were jam packed with approximately 50 residents, some carrying “NO to the Pole” signs, some with their toddlers and children in tow.
The majority of those present were there to express their opposition to the erection of a cell tower at Pinole Valley Park. Of the 21 speakers, 2 were in favor of the tower, citing increased coverage and the need to have cell phone coverage in the case of emergencies and power outages.
The 19 who spoke against the tower voiced various concerns among them health concerns, the location of a commercial entity in a public park and the relatively small $26,000 fee being paid by a giant corporation.
They urged the council to stand firm on its June 18th decision and to listen to the voice of their constituents and not be intimidated by Verizon.

The cell tower saga and the timeline of decision-making makes one wonder how this all came to be. There are questions regarding when the lease was signed, when the city council authorized staff to proceed, and when residents received notification.

Last week Verizon sent residents who publicly opposed the tower detailed information and copies of the agreement signed by the City Manager.
The signed agreement is dated December 12, 2012 and is signed by City Manager, Belinda Espinosa.
But the council seems to have either been unaware that the lease agreement had been signed by the City Manager or had expected that they would have the last word on the agreement by ratifying it, they officially ratified it on Tuesday, July 16, 2013, seven months after the City Manager signed the agreement.

Records show that the City Manager stated on a February 5 staff report that, “staff reviewed the deal points with the city council in closed session on Feb. 21, 2012. The City Council authorized the city manager to proceed and sign the lease”. However, on February 21, 2012, the council did not report any action had been taken in closed session.

On February 5, Espinosa stated that the lease was operational only upon the approval of the Conditional Use Permit by the Planning Commission. The Planning Commission approved the CUP by a vote of 4-3 on March 25, 2013.

As recently as April 16, 2013 the staff report included a copy of the agreement with Verizon’s signature, dated December 3, 2012 and Espinosa’s signature, dated December 12, 2012.

The cell tower had been discussed since 2010. Initially the Pinole Historical Society was sent a letter asking if they had any objections to a tower on Adobe Road, a historical location. They did not object, the location presented at that time was not the current chosen location.

As Mayor Long noted, this cell tower came up at a meeting of the Save the Swim Center Committee. It was presented, by staff, to the committee as a possible sustainable source of revenue to operate the swim center. The committee was buoyed by the possibility of receiving a dedicated source of revenue for the maintenance and operation of the pool.
At that time, I wondered if the council had agreed to utilize this source of revenue for the swim center and why it had not been mentioned by the city council at any of their meetings.
I asked Debbie Long about it and she quickly communicated that this was not a done deal and should not have been brought to the committee.

The timeline that Verizon presented in its documents begs to question, was the council unaware that this project was moving ahead without council ratification?

If, as Pete Murray stated on Tuesday, the council had given “implied direction” to staff, why was the council so surprised that the contract had been signed on December 12, 2012?

Why then did the council vote on June 18th, in light of this, to not ratify the agreement? Did the city believe it could reject the agreement based on the fact that the council had not officially ratified the lease?
That vote on June 18, was 4-1 with Roy Swearingen dissenting, members, Long, Murray, Banuelos and Green all voted NO.
Why did the council, a month later reverse its decision by a vote of 3-2? Banuelos and Murray reversed their position.

The answer is clear, Verizon was swinging the legal hammer directly in the direction of the city and the council knew it was caught between a park and cell tower.

On Tuesday two council members reversed their decision of June 18 citing the strong possibility of a lawsuit by Verizon, a lawsuit the city did not want to fight and would likely lose. The city, as Murray stated, has a balanced budget but any shift in another direction could have Pinole facing Stockton’s plight.

The Pinole Fire Fighter’s Union Local 1230 has a lawsuit pending against the City of Pinole. Should they prevail the city will feel that impact. Rising attorney fees have been mentioned at council meetings in reference to the Fire Fighter’s litigation and the brouhaha last election over the election code. A legal battle to defend the city and the agreement bearing the City Manager’s signature was certainly not a welcome prospect.

The fear of a lawsuit caused two council members to reverse direction. Long and Green who voted NO, maintain that the council never ratified the agreement.

As I left the meeting at almost midnight there were some very angry citizens. A few of them called for the ouster of the City Manager, stating that she should be accountable, that she signed the agreement before the council had ratified it and had overstepped her authority.

The group opposing the cell tower at the park, has not given up. They will fight on.

 

The Pinole Valley Cell Tower – To be or not to be

Friday, July 12, 2013
david_goliath_thumbnail
What started out in April as a review for and the approval of a  Conditional Use Permit for a Verizon Cell Tower at Pinole Valley Park, has evolved into a dramatic grass roots campaign by residents vs. a media campaign by behemoth Verizon.

Verizon customers, I am a Verizon subscriber, received this text message on their cell phones on Wednesday:
“Free message from Verizon: Reply YES to support improved Verizon Wireless service along Pinole Valley Road from a camouflaged treepole at the east end of Pinole Valley Park.
Email Support Wirelss@VerizonWireless.com to convey your support to the Pinole City Council at their July 16 meeting or for more info.”

Shades of David and and Goliath.

The City Council voted 4-1 against the Cell Tower on June 18th. But Verizon has raised the stakes by threatening litigation, citing the fact that Belinda Espinosa, City Manager, signed the lease agreement in December of 2012.
But, the Council, led by Mayor Debbie Long, believes that the contract is unenforceable without Council approval.
The West County Times, reported today “Pinole Council to reconsider cell phone tower in park after Verizon threatens lawsuit” reports that Verizon believes it has met the terms of the contract and will take the case to court.

Mayor Long voted to reconsider the June 18 vote expressing safety concerns. There was talk that the Police department might be impeded due to “dead zones” in that part of Pinole Valley. However, at the most recent Financial Sub-Committee meeting the chief of Police assured Mayor Long that safety was not an issue.

The threat of litigation by Verizon in the face of the pending litigation by Fire Fighters Local 1230 is about as welcome news as another Great Recession.

In speaking to the residents who have fought the cell tower, successfully, in what now appears to be have been round one; they expressed their support of those council members who will not allow Verizon and its team of lawyers to intimidate them.

Matt Beilby, part of the group that has been fighting this tower stated, “We stand by the City Council and want them to stay strong on this issue. They voted this tower down once before and the will of the people on this issue has not changed. We feel this is a blatent attempt by Verizon to “bully” their way into our park and we hope the city council doesn’t give into their threats”.

Julie Maier sent this email to her contacts throughout the city.
“If you are a Verizon customer and received a text message today asking you to support a cell phone tower at Pinole Valley Park to improve your cell phone service, please be VERY WARY.

Verizon is trying to force and bully our City Council members into building a cell phone tower directly across the street from the residences on PV Rd. and Wright Ave. after they voted not to ratify building the tower in that location! They want to build it on park property even though dozens of local residents have worked hard for months to stop the construction due to unknown health risks, potential fire hazard ( a huge diesel fuel tank is attached to tower), and aesthetic concerns about a fake cell phone tree in the midst of our beautiful parkland. This cell phone tower should be built away from residences and certainly not in our pristine parkland. Please don’t cave in to this corporate bully and give them your support and if you really don’t want to see this cell tower built, then join Tony Guitterrez, me and many other Pinole Valley residents at the City Council meeting next Tuesday, July 16th and tell the City Council to stand by their June 18th vote and not let Verizon bully them. 
On June 18th after a very long City Council meeting, the Mayor and the rest of City Council listened to the very real concerns and wishes of about 18-20 residents who spoke against ratifying a lease to this site to Verizon. After listening to us for close to an hour, they voted 4-1 to NOT ratify the lease. A victory!!

Then on July 2nd after hearing that Verizon may force litigation, they decided to look at the decision again at the  July 16th meeting (next Tuesday).
I believe they feel threatened and bullied by Verizon’s litigation team. We need the Council to stay strong and show resolve and stick with their initial decision.
They need to hear from a lot more of us that we don’t want a cell tower built in a residential just 50 yds. off the road in a historic (site of an old Adobe in the valley) beautiful and vulnerable wooded area in PV Park. There are much more suitable locations up on ridgeline of the hills away from the park, ball fields, local school and residences.
It would be great to have a big turn out at this meeting. If you can’t make it, then please call or email the Council members before Tuesday to share your concerns. You can reach them at:”

Phil Green              cell      676-6172      pgreen@ci.pinole.ca.us
Tim Banuelos         cell      872-9646      tbanuelos@ci.pinole.ca.us
Pete Murray            home 222-1910      pmurray@ci.pinole.ca.us
Roy Swearingen     home   758-4720     rswearingen@ci.pinole.ca.us
Debbie Long                     684-3080       dlong@ci.pinole.ca.us
If you want to find out more about the plans and why so many of us are opposing it, please call me or email me and I’d be happy to tell you my concerns. Thanks for listening and for any support you can offer–it is really appreciated! I’ll now step off my soap box.
Julie Maier

 

Let’s fill the Council Chambers on Tuesday to put Verizon on notice. We do not want an 80 foot faux tree cell tower in our beautiful park land.

Ivette