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.

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.

Express Yourself

expressyourself
Monday, June 3, 2013

I have only been home for a week and already I am hearing some interesting scuttlebutt.

The City Council has been postponing the decision on the proposed Verizon Cell Tower since April. I oppose the Verizon cell tower because of its proposed location.

It is widely believed that the City Council was prepared to sign off on this lease agreement in March-April, but the Conditional Use Permit (CUP), a necessary piece of the processing, needed approval from the Planning Commission.
The Planning Commission did approve the CUP. In the interim, the community became aware of this proposed cell tower and expressed opposition for a variety of reason, most notably the location at Pinole Valley Park.
The lease negotiation appears on the Council agenda for tomorrow under closed session. There are two agendas for tomorrow, one is listed as a Special Meeting.
Regular Meeting
Special meeting

I believe the opposition may have come as a surprise to the City. They had been trying to seal the deal with Verizon for the tower on Adobe Road for about a year. The proposed cell tower was brought to the attention of the Save the Swim Center Committee last year as a possible source of sustainable revenue for the Pool, an idea the Council put the kibosh on, understandable as they were still in the throes of fiscal meltdown. The lease, as originally proposed, would pay the City a $5,000 up front fee, with lease payments of $24,000 per year.
The Planning Commission noted that Verizon had proposed other locations, but that the final location at Pinole Valley Park, was the one all parties (not including the community) agreed was best.

The City had to tighten its belt and made dramatic cut backs to services in Pinole over the course of the last three years.
We were all asked to share the pain, we did that.
To this community’s credit, they stepped up and did what was needed to retain and preserve the services they cared about.

In November voters extended the Utility Users Tax for another 8 years so that we could “Keep Pinole, Pinole”.
No promises were made, but it was clearly implied that the UUT would help retain and restore these important services, and for many it was the reason they voted, YES.
By all accounts the City’s budget situation has improved, how much we won’t know until the new budget is presented this month.

The question is, has the city’s financial position improved so much that they are now in a position to offer bonuses to staff? That is the scuttlebutt around town. Pinoleans are spitting mad about this possibility.

Services this community has supported through their taxes and fees, were jeopardized due to the economy, some of those, the Senior Center, Parks and Recreation and PCTV, have relied on fund-raising to stay in business. Volunteers have worked long and hard to raise funds to keep them in business. Why? Because they believe these services define their community and are the reason they choose to live here.

Now, volunteers have reached a point where they are asking, “how much longer will we have to do this, when is the City going to assume its rightful responsibility and allocate resources in its budget to maintain the services we want and pay for?”

If Pinole’s economy is moving in the right direction, with the help of increased revenue and the UUT, then taxpayers deserve to know how the City can possible justify any increase in salary, benefits or the handing out of bonuses, before allocating resources for these services.

It would be a dark day indeed in Pinole if the new budget does not allocate city resources for these services yet allocates bonus money or increased administrative staff costs. It would not bode well for the campaign to increase sewer rates.
 
Keep Pinole – Pinole, indeed.