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.

 

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.