The City Council moved slowly through a site by site analysis of the project. They have pushed the major questions off to a special council session next week.
Mayor Joe Krovoza following the lead of City Manager Steve Pinkerton and City Attorney Harriet Steiner, believes the law is on the side of Crown Castle, and any decision that would lead to litigation would be at best a costly mistake.
The Mayor said pointedly, “I don’t believe this community can even begin to afford going into a lawsuit on this matter. “It would be frivolous, unnecessary and I’m not going to put staff time into that or the citizens’ money into that… Lots of things are going to fall off the budget in June and that’s at the top of my mind.”
Councilmember Dan Wolk remained the councilmember holding out for a fight even though he was admonished by his colleagues, including Councilmember Souza who said pointedly as well, “I am convinced, looking at the case law, we will lose local control, we will lose all say.”
The public on the other hand is outraged and want to fight this.
Steve Hayes, a 38 year Davis resident had some choice words.
He told the council, “A project that pits neighbor against neighbor and creates winners and losers violates the basic principle of community within the city of Davis.” While he had specific objections to sites, he said, “I object even more to pit my interests and that of my family against a friend… and her family. This is outrageous!”
He said that he served his country in Vietnam and he swore to uphold the constitution, “To be told that we cannot speak out on this issue is also outrageous. This is tyranny.”
“If one objects to this project in principle they are also objecting to each site of this project specifically. I strongly object to using the term ‘no public input’ on sites that people didn’t speak at, at the public hearing,” he added.
Frank Chastino speaking on behalf of the Village Homes Homeowners Association argued, “The applicant has not shown a true need for these poles in the first place.” He noted that their own company, Metro PCS states on their website that Davis has great coverage. “They have been advertising to this community that they have great service,” he said. “They have been selling this product to the community saying that they have great service.”
“So for them to come to us now and say that they don’t have great service and this is why they are putting these poles up – this is fraud,” he said.
He later argued that “these mock ups are a fraud” arguing that there will not be one antennae on each pole, but rather six.
“This company is not acting as a community member, they are forcing their way into our community,” he said.
Meredith Herman referenced an email from Carla Visha who discussed four court cases in which this was discussed in other counties in California. Metro PCS v. San Francisco she said, “spells out the authority of local government to say no to towers like DAS. The judge ruled in favor of San Francisco because the cell tower violated the local planning and zoning codes.”
Jay Feldman from Village Homes said, “I find it really disappointing, even shameful that the council is just going to roll over on this.”
“I would rather see the city of Davis among those cities, rather than the city council just dropping its tail between its legs and running off here. The Crown Castle people do not have the greater good of the people of Davis at heart. The only thing they care about is money,” he added.
Ed Highcastle added, “Fight them… All the way to court and you will win. I think you ought to put this up [for] the people’s vote. The people will vote this down and out.”
Bob Schneider also spoke out against this proposal.
“My wife and I are opposed to the project as proposed,” he said. “We don’t think that’s a good fit with our community.”
Steve from Village Homes urged the council to “Find a legal way to regulate the size and number of antennas that you can put on any one place. Your setting precedents here… not only for what Crown Castle does but for what any DAS provider can do in the future.”
He added,” Consequently I’m here to urge you to set legal policies and ordinances that will protect the legal residences of Davis from abuses by DAS providers which have led to moratoria in many other cities in California. They have regretted letting them in.”
“Personally I believe a set of clear, reasonable, and modern enforceable set of regulations are needed to protect the interests of residents from overzealous DAS providers,” he added.
Kathy from Village Homes asked the council to look at the future and picture where we need to go.
“This is a process,” she said, “that began in 2009 in front of Elaine Fingerett’s home. But she said that process and those designs within the telecommunications industry have increased. “So there are other things out there, other ways of doing things. The cheap route for them is going to cost us dearly.”
Jill Vansantem also from Village Homes expressed concern that we have given up our democratic rights to the point where we are not actively choosing this project, but rather acting out of fear of what will happen to us.
“I would hope we become an example of constructive resistance and an example of a community that is able to set our own course through a truly democratic process,” she concluded.
Jill Theg from East Davis said, “I know enough about lawsuits to know that the good guys don’t always win. But what I hear the city council and the city staff saying is that we may not like this project, but we feel legally constrained to accept it.”
“if that’s truly the case,” she continued, ” the reason we find ourselves here is because a very powerful industry, the telecommunications industry was able with the help of their army of lobbyists to set up a regulatory scheme that favors for-profit, international corporations over the desires of many citizens in Davis who care about the quality of life here – not just the bottom line.”
“This is an ugly project, we don’t want it, we’re being bullied into accepting it,” she said. “I don’t know if this project is technically legal or not, but I do know it’s wrong.”
Susan Monheit urged the council to protect the telecomm ordinance, specifically the five hundred foot setback.
“This ordinance is not out of date,” she argued. “It was written by some far-seeing visionary citizens who saw this exact thing coming and wanted to protect out town from the type of industrial blight that Crown Castle’s DAS system is about to impose on the city. DAS was designed for sporting arenas and that is where it belongs.”
She challenged Crown Castle, “While we have many legal constraints, they are not legally constrained from doing the right thing. Mr. Garcia, you represent a big international corporation with a lot of money, you made that very clear back in August, when you first made your presentation, I would like to ask you to share the profits of the money that’s going to come in from this project with this city that is struggling to services open, keep its teachers, keep its firefighters.”
She added, “I’m not asking anything unreasonable – 50%… You’re forcing a project that this city does not want and does not need and your reshaping the character of this town. So I think it completely reasonable to request that.”
Kim, a 25 year Davis resident who was part of a neighborhood group that helped form this ordinance originally,
She said it was heartwarming to see the outpouring of support from the community to fight this thing because, “We don’t want it.” She added, “Crown Castle has not proven that they actually need it.”
She again noted that Metro PCS has the best coverage but significant gaps in coverage and stated, “the two don’t meld together.”
She told the council that while everyone has two minutes to talk, they have the ultimate voice and she said, “I want you to fight it. It won’t be easy. It’s money that we don’t have – I get that. But it is worth the fight.” She argued that pools and parks can be solved with money, “but this thing, once you approve one site tonight you open up the flood gates, you cannot go back. And it can’t be solved with community fundraising, it is opening up a pandora’s box.”
Peggi Hayes said, “I don’t like these people because they stuck their camel’s nose into the tent and that’s just the beginning. This is only the start. Our constitution, our bill of rights, is under assault.”
“We need to stop this… We need to vote against this one time and not let them keep bullying us,” she added.
Dr. Carla Visha had sent the council an email on other lawsuits in other communities.
She noted that the pictures sent out by the company were unrealistic, “these trees will not survive because the towers will kill the trees. So that’s a deception.”
“The lead acid containing adjacent boxes provide toxic and explosive materials that will leach into the soil, into the air, and if kids play on them, God knows what happens to the kids,” she warned.
“You’re afraid of lawsuits,” she continued, “I’m not supposed to address health issues, that’s my field… The health lawsuits both individual and collective that the city will face will be enormous.”
She added, “If you put these things within 500 feet of people’s homes, they will get very ill and you will get lawsuits.”
The council weighed in with mixed results on just ten of the 25 sites, they will need to complete these sites next week at a special meeting.
The community that has been engaged on this issue, has been very much opposed, but the council and staff continue to believe there is little they can do unless they want to risk expensive and time consuming lawsuits they don’t believe they can win.
—David M. Greenwald reporting
You had me until:
“The council weighed in with mixed results on just ten of the 25 sites, they will need to complete these sites next week at a special meeting.”
Huh?
I wasn’t able to be there last night, but have three thoughts based on David’s article.
1) Davis should be waging this battle with MetroPCS as well. Anyone who currently uses MetroPCS should consider sending MetroPCS an intent to disconnect notice if Crown Castle succeeds. If metroPCS sees that Crown Castle’s actions are going to hurt their revenues then they should become a player in this drama.
2) The fact that some sites are not receiving negative comments isn’t a problem IMHO. Rejecting the sites that clearly do not fit our community rules and values leaves Crown Castle with a partial network. I have to wonder if either they or MetroPCS will see such a partial solution as fiscally viable. We need to arm Council and Staff with legally supportable arguments for rejecting individual sites . . . as many as possible. Think divide and conquer.
3) I still feel that the Crown Castle application does not meet Davis’ minimum criteria for submission. Staff and Council should be well within their rights to tell Crown Castle that unless and until they submit a complete application, no further processing will take place. If any Davis resident or business person came into City Hall with a submission that said “It could be this, or it could be this or it could be this” they would be told to come back when they have made up their minds. Crown castle should settle on one technology design that is uniform for all 27 of their sites. Only then will their application be “complete.” What is good for all the rest of Davis is good for them as well.
Good to see some news photos in addition to the typical illustrations. Any way to have captions? Who is speaking while waving a weapon? And, who is snoozing in the back seat?
Any photos of Steve Hayes? His Vietnam service must have been fairly recent and with the CIA, since the military left in a hurry in April, 1975, about the time Steve would have been two years old.
Does anyone know why Richard Harris has aligned himself with Crown Castle?
Sorry, Steve, for misreading this story. You’re no doubt older than I thought I’d read. Thank you for your service.
Don and David, feel free to pull these two posts if you can consider the first one as an offense to anyone but me.
From his earlier appearance I would say Richard Harris is a paid advocate for Crown.
If the original goof with Elaine’s house and the previous company to Crown hadn’t happened, would we be where we are now?
Richard Harris is a paid consultant for crown castle.
Steve Hayes is the on in blue Behring Harris.
[quote]I know this is a divisive and highly emotional issue. One of the reasons it is divisive/highly emotional has to do with the way in which this whole controversy started – a “sneak attack” on Thanksgiving to place an antenna in someone’s front yard. But the reality is, like it or not, that the federal gov’t has ruled that in utility rights of way, the utilities rule, not the communities. If the City Council is not careful to work with Crown Castle and show good faith, then the city will find itself on the losing end of an expensive court battle. And if the city loses, the city will have absolutely no say where the antennae go – Crown Castle will be able to do exactly what it wants without any city input. That is the unfortunate reality, like it or not.
So as the City Council goes through the uncomfortable but necessary process of evaluating each individual site, a consensus of what guidelines should apply in this new high tech environment should carefully evolve. Some guidelines should be:
1) Antenna nodes should be placed on arterial roads rather than collector streets whenever possible;
2) Placing antennae on existing poles is preferable to erecting new poles;
3) Replacing existing poles/lighting fixtures with poles that can house all the equipment is usually preferable to a slightly smaller pole that only houses some of the equipment and must be accompanied by an equipment box nearby;
4) Neighbor should not be pitted against neighbor, when considering placement. If at all possible, select sites that minimize such unpalatable/unacceptable choices.
Ultimately we want good cell phone service and the latest technological advances, but we want them in a thoughtful and responsible way.[/quote]
Don’t know why the computer put what I said in blue – some type of formatting problem…
[i]”Rejecting the sites that clearly do not fit our community rules and values leaves Crown Castle with a partial network.”[/i]
Due to state law and because it is in the interest of Davis to protect our city’s corporate interests and the interests of all residents, we need to work with Crown Castle, as much as possible. If we “reject sites” and we do not offer a workable alternative site nearby, then Davis will lose in court and Crown will get the site it wants and we don’t.
I am told that Crown Castle, before it hired Richard Harris to help smooth things over, was being a bully, saying a lot of “take it or leave it.” I am told that since they hired Richard, that is no longer the case. They are now trying to be accommodating. That makes it all the more imperative that the City Council and or staff proposes reasonable alternatives for every site which cause less problems for the proximate residents. If Crown then says no to the alternatives, the City can win in court. But walking away, and doing what Dan Wolk wants us to do, steals all local control away from the City, hurts residents of Davis, and will cost us $1 million or more, depending on how long the court procedures play out. And in the end Crown gets everything it wants and no one in Davis is helped.
In the top photo, you will notice Ken Hiatt holding his head in pain. I believe that was after that lady attacked him with her giant sledge hammer.
I read the DE today about how the CC went on and on about “poor us” because the City Attorney advised that the City has no legal ways to block the ugly towers. Why didn’t the CC get a second opinion, from someone who specializes in such technical and very specific law?
The CC sat up there and took her advice at face value?
THis is the same City Attorney who cost us $2.2 million in the Eoff litigation when I was on the CC; who cost us more or less $10 million in permanently affordable housing benefits in Wildhorse by failing to record the community equity liens on the deeds; who basically created the DACHA litigation and is still being paid well over $500,000 by the City to litigate her old advice and documents; and who tried to block the water referendum last fall with her opinion in a memo to the CC that the referendum was unconstitutional?
The DE report today that the CC relied on the City Attorney’s advice is, frankly, disappointing.
And then the CC kills the public art program for lack of less than $20,000? WHen they have squandered huge amounts of money on the City Attorney, the fraudulent water rates last fall, the continuing DACHA debacle and litigation, and other such city policies?
It’s this kind of lunacy that makes all of us suspicious of the City, and quite skeptical about voting for any more tax renewals or new taxes. I frankly don’t see the Parks and Rec Parcel Tax Renewal passing in June.
Seems as though this decision rests on the quality of our legal advice. No one wants the project as planned, but we have to approve it without restrictions because the company will win a lawsuit (or that we will win a lawsuit but it will cost us)?
Did Harriet describe how Dr. Visha’s cases do not apply or how her [i]Sprint PCS Assets, LLC v. City of Palos Verdes Estates[/i] case would over-ride Dr. Visha’s support for enforcing local planning and zoning code setback requirements? How much effort did she make to explain this to citizens, or was the discussion all behind doors?
If the law is as clear as Harriet sez, we really don’t need to spend much time on this issue, except to educate the populace. We need to get on with important things, like stopping the plastic/paper bag government take-over.
It’s odd that there’s such disagreement about the law’s application in our case. It isn’t odd that nobody wants the things constructed, given the way technology changes. How many years did it take to get the 6-foot satellite dishes out of the landscape after they were replaced by small ones?
Harrington: you mention squandering money on the city attorney, but then recommend paying for a second opinion? Right.
Try google. Davis isn’t the only community in the US that has to deal with this lack of local control. This issue has been going on for years.
Any city attorney with any amount of experience knows of this issue well enough. I’m sure every “city attorney conference” has at least one workshop on the issue since 1997.
Here are some results on page one of a google search:
http://arts.envirolink.org/arts_and_activism/BlakeLevitt.html
http://www.publicceo.com/2011/07/local-government-groups-urge-fcc-to-reject-regulating-local-rights-of-way-for-cell-phone-towers-broadband/
[quote]“And then the CC kills the public art program for lack of less than $20,000?”[/quote]Guess I missed this one. When did this happen, Michael? I’ll bet our Davis arts activists would love to have the $14,000 that the NRC just obligated us to waste on an environmental study aimed at reducing chances for a successful lawsuit about a totally unnecessary ordinance!
Who sez $14,000 or $20,000 is just a small amount–whether it’s to invest or to waste? The only difference is what priorities drive the city council’s decisions and whether the community agrees. They’re sure selecting the wrong one here.
When the city leaders decide against our traditional arts support in favor of spending to avoid losing suits that wouldn’t happen at all if we decide not to use laws to reduce bag use, we’re on the wrong track as small town.
[i]”It isn’t odd that nobody wants the things constructed, given the way technology changes. How many years did it take to get the 6-foot satellite dishes out of the landscape after they were replaced by small ones?”[/i]
But then those that installed them had satellite TV before other alternatives existed.
Technology is always changing. In this town, we should be the early adopters and not the old fogies still bent on using paper and pencil.
[i]”Public Remains Against…”[/i]
You mean the vocal minority remains against. The vocal minority is always against something in this town. The silent majority are working for a living and wonder why the city wastes so much time on so much twaddle.
Don’t block the telephone poles. They are required and protected by law.
You can move to Montana and communicate by carrier pigeon if you don’t like the modern technology and the required infrastructure.
[i]”When the city leaders decide against [b]our traditional arts support[/b] in favor of spending to avoid losing suits …”[/i]
This did not happen. There has been no reduction at all in money for the arts. None. All that has happened is that temporarily, the city has suspended using its huge pool of existing arts money for what are called “arts contract” programs. And I really don’t know why the city did this. It was not done for a lack of arts funds. That money is still there. And using it does not affect the general fund. And not using it does not supplement the general fund.
For reasons of trying to get some funding for historical resources–we really need a regular source of funds, which we have not had for the last 9 years, I have made myself into an expert on arts funding. (Historical resources’ needs up to 2003 were placed under the rubric of “cultural arts.” Since then, civic arts has had full and regular funding, and historic resources has had none.
Here is what I wrote in The Enterprise today:
It is not possible to understand what changed with regard to arts spending and what the future holds without knowing these four things:
1. The city’s “municipal arts fund” has a current balance of $154,257. That is a little lower than it had been in the past, but it’s nowhere near starvation. Compare that to the city’s historical resources fund, which has $58 in it, and has never exceeded $90 for the last 9 years. The main reasons that the fund is now a bit lower are facts No. 2 and No. 3;
2. The city normally contributes tens of thousands of dollars (or more!) every year to the municipal arts fund. This money enters the fund every time the city spends money on hard costs for capital improvement projects. Examples of capital improvements are things like replacing a sewage main or building the East Area Water Tank or remodeling a city building. For every $100 the city spends on a CIP (not counting soft costs like architecture fees or bookkeeping), $1 is placed in the municipal arts fund. For a $100 million CIP, like the new sewage treatment plant, that means $1 million into the municipal arts fund. The fund has dipped in the last couple of years in large part because the city has spent next to nothing on capital improvement projects. In 2010-11, the city contributed only $1,407 (which is 1% of $140,700) to the MAF. This fiscal year, the city has not yet contributed any CIP money to the fund, though it may owe some funds before the year ends, June 30, 2012; and
3. The other major change in arts is on the expense side. For the first time ever, the city is using the MAF to pay a part of the labor expenses for a city employee who coordinates the arts programs. Up to March 23, the city has taken out $11,966.91 for this employee’s Salaries/wages, Benefits: Leave time, Salaries–insurance, Retirement–benefit, Benefit–insurance, Cafeteria benefits, retiree medical, unemployment and workers comp.
4. The city is on the verge of spending a great amount on capital improvements. We are going to build a very expensive sewage treatment plant; it’s likely that we are going to build a surface water project; the city will be spending a lot of money to improve 3rd Street and more money to reconfigure 5th Street; and the city is sitting on $18 million in redevelopment money.
If the new labor contracts have most of the reforms I have been prodding the Council to adopt, they will be able to take out the labor costs now in the MAF budget and return those to the General Fund.
[quote]Why didn’t the CC get a second opinion, from someone who specializes in such technical and very specific law? [/quote]They did… as a consultant to BBK. But, as usual that inconvenient fact won’t slow Mr Harrington down.
BBK being? His/her connection to the city council?