A controversy has emerged in the Davis Village Homes community as neighbors suddenly were stunned to discover that a wireless company, known as New Path Networks would begin construction of a 35 foot high cell tower within the next few days. Now the neighbors claim that neither the city nor the company, informed them about the cell tower.
City Manager Bill Emlen at this week’s city council meeting quickly apologized for dropping the ball–a situation that seems all too familiar to many observers of city government. In fact as two of the neighbors, Alan Jackson and Elaine Fingerett spoke at council, a strange dynamic unfolded that showed that the city and by extension property owners have far less control of their property than they might wish to believe.
However, the implication here is that believing this was a public right-of-way, the city may have granted permission without informing the residents. Mr. Emlen on Tuesday night quickly apologized for dropping the ball and then told residents the city will issue a stop-work notice until the matter is resolved.
On Monday he told the Enterprise the following:
Emlen said he was unaware of the project because it was being treated as a public right of way. He said it’s not unusual for the Public Works Department to grant construction permits for such projects without his review.
‘There are a lot of things that would go through the public right of way that I would not be aware of,’ Emlen said Monday.
He said he is investigating what the project entails and how it went through the city’s permitting process.
In the Enterprise, Mayor Ruth Asmundson was critical of staff:
“Staff should have notified us, the council, and we would have told them to reach out to the neighborhood to tell them what’s going on.”
Listening to the statement from Mr. Emlen and two residents the situation seems to get more strange–the explanation from the city and description from the neighbors generate more questions than answers.
Mr. Emlen told the Council on Tuesday night:
We want to apologize for some of the angst that this has caused. I believe that from staff’s perspective that more public outreach should have been done. We are now going to try to move into a corrective action to try to resolve this situation hopefully in a way that will benefit the community.
In terms of what the issue has been, New Path Network is working with the city basically on a new form of telecommunications facilities that are not as large are your basic cellular towers, but of a smaller version. I think when they first came into the city; I think the thing was that they would go on existing fixtures such as street lights and things of that nature. It’s obvious as we started to look at the plans that it evolved into something much more. It involved free standing facilities basically that look a lot like cell towers with the exception of some of the antenna.
The way these new facilities are designed, they’re designed basically to go into residential neighborhoods on public right of way. I believe that staff when reviewing this went with the interpretation that these type of facilities are exempt under federal law—we are taking a hard look at that relative to the type of facilities that are being proposed and our existing telecommunication ordinance.
We believe that there may be areas where there are inconsistencies with our ordinance and that’s the reason that yesterday we put stop work orders out on every permit that was issued—encroachment permits basically—for these facilities. So we are now undertaking a permit by permit review to determine the next steps… As you all know, we struggled mightily when we developed the telecommunications ordinance; there are intertwining issues with federal law and local control.
We do believe that aesthetics are still legitimate issue for local entities to fight some of the preemptions that exist in federal law and that’s what we’re pursuing hard right now.
Speaking before public comment, Alan Jackson, a resident of Village Home, a longtime resident of Davis, and a board member of the homeowners association, explained that there is a strong level of concern by the residents of Village Homes. He also expressed gratitude to the council for very quick action.
I’m currently on the board at Village Homes, and yesterday I had an opportunity to speak with the director of new installations with New Path Networks on the technology thing, I guess what they’re doing is an outgrowth of what they’re calling a distributed antennae system. Instead of one giant antenna that covers a larger area, they put many smaller antennas to cover the same area but each one would be less obtrusive, but there’s more of them. It’s an outgrowth of the technology used at airports and confined spaces like that.
On the notice, I see 37 locations listed. New Path talked about 23…
In talking with the network people, the gentleman I spoke with, I was a little concerned about the legitimacy of this particular group and I suggest that we take a serious look and see if are they truly a public utility as they claim to be—they don’t seem to be very substantial. There are some indicators like phone numbers on their website that don’t work, that sometimes set off alarms.
Within Village Homes, we have a situation that makes me feel a little vulnerable. I was looking at the maps over the weekend and that is that a lot of our common areas are also designated as public utility easements… In researching the question of where they can be, Steven with New Path asserted very strongly as a public utility they have a right to be in the right-of-way. The right-of-way is regulated and controlled by city encroachment permits. When I asked about their rights to be in the public utility easement, he was a little bit less clear and I think on investigation you’ll find that the powers of the city are a little bit more muted when you get into that public utility easement area. It’s something that concerns me.
One last thing that I wanted to say is that this gentleman made it very clear to me that it is not their policy to contact the owners of the property that have that public utility easement on their property. They go ahead and ask forgiveness later.
Elaine Fingerett spoke at length and we publish her full story here because it illustrates the problem with the policy and the fact that there was no notice and no recourse other than by happenstance she found out what was going to happen. And only by happenstance as she said, was she not out of town–which cannot be a coincidence in terms of the timing here.
I want to tell you what happened to me, because I want it to be on public record so can understand what the process has been or should I say, what the lack of process has been… I want you to feel just a bit of my dismay and I want to tell you what happened on Wednesday morning.
It was Monday or Tuesday that I happened to notice on my property, but also on the sidewalk and the property at Village Homes, the Green Belt which is right next to Alan [Hastings, her husband] and my house, we noticed a lot of markings. I said to Alan, have you seen any indication that there’s going to be something built at our house. He said no. And we got no mailer. I think it was Tuesday, Alan happened to be out in the front, I think he was doing something with the sprinkler, and he saw a utility truck pass. He asked the public utility person what’s happening here and he said, oh we’re going built a conduit.
I saw some additional markings show up and I just had an intuitive feeling that this was too many markings to be nothing. Since there was no notification, I happened to notice and found that if you dial 8-1-1 that’s the number that you find out if they’re going to dig. So I called 8-1-1 and the 8-1-1 people gave me the number to find out who was the contractor who was going to dig on my property.
That person gave me John Childress who is the superintendent of construction for Light Waves, Inc, and they have offices in Dixon, they also have offices in Las Vegas and San Francisco.
Even on the phone, Mr. Childress would not tell me what they’re going to build. In fact, when I first talked to him, I thought that maybe they are going to put a pipe in and I said to him can you please come out because I’d like to show you where my irrigation lines are so that you don’t break my irrigation line.So he came out and we started to talk—again he would not answer my question about what he was going to build. I happened to notice my friend, Patti Fong, who is also a Davis resident; she happens to be an attorney and also works for the DA’s office. I called her, she had her dogs, Patti come here and just listen while I talk to this guy.
I said to him, how big is it, when he wouldn’t tell me what it was. He said it’s a foot-and-a-half wide. Then I said, well how tall is it? He said it’s thirty-five feet tall. Then I said, what? And he said thirty-five feet tall. Then Patti Fong said, how tall is it? And he said thirty-five feet tall. Although I learned this morning that in fact this pole is actually going to be forty-one feet tall.
I would just like to make sure that people in the public know, because if they go to the website for the city, they will see that these towers are 24 feet tall. But I have now been told that they are 41 feet tall.
I asked him and Patti asked him too, where are the other sites where you are going to be building this? He said, I don’t have the information with me. I’m sorry I can’t give that to you.
Then we said to him, when are you going to build this? At which point I said to him, this is on my property, I have got no notice from your company that you are going to build something on my property, when are you going to build this? What he said was, I can’t say.I want everyone to step back and I just want you to think about your own home and your own property. Had I not called—and thank goodness I did not go to visit my family at Thanksgiving—and let me tell you, I really did not have a very fun Thanksgiving this year, in fact, I imagine that’s what Native Americans felt like when Europeans came over to this country.
It’s basically very American in some sense. But basically I found out Wednesday morning that somebody had intended within days that these people were going to put up a 41-foot cell tower on my property without ever telling me that they were going to do that. Not asking me or even letting me have the courtesy of knowing that they were going to come onto my property.
I thank you very much for stopping this action, but I want you all to ask yourself a very deep question, do you want to continue working with a company that works this way?
The city’s website provides some additional information. It reads:
“Last week, New Path Networks began construction on antennas for cellular phone service throughout Davis and El Macero. The construction was proposed to include areas with new poles, as well as antennas on existing light standards. On Monday November 30, City Manager Bill Emlen issued a “Stop Work” order for all construction on the project, effective immediately. The purpose of the Stop Work order was to provide time for the City to investigate potential conflicts with the City’s Telecommunications Ordinance. The City Manager has committed to striving to work expeditiously during this review. Additional information will be posted on this site as it is received. The original Handouts prepared by NewPath are below.”
It also includes a map as well, too big to reproduce here of all of the sites around the city.
The question is at one point the city was aware of this situation and why the city consistently is reacting to these situations rather than being pro-active. It is good that the city has been responsive to citizen concerns, but in a lot of ways, the neighbors were very fortunate given the timing of this project that it was discovered when it was. The city is obviously working to rectify the situation–as they should–but they need to figure out how to prevent similar situations from repeating themselves.
—David M. Greenwald reporting
The Davis Public Works Department’s public image with regard to Davis residents’ concerns has long been characterized as dismissive and arrogant, a tone which usually emanates “from the top”.
It was also confusing in that it seemed if it was not private Village Homes property, the cellcompany could pretty much do what they want. 40′ towers is how they were described, yikes!
I was part of the coalition that stopped the cell tower that was supposed to be build a number of years ago at the High School and before that right behind someone’s property in North Davis. The current cell tower ordinance is the result of that effort.
A weak after-the-fact apology from Emlem is insufficient. As representatives of Davis residents, the City Council should demand a full account from Public Works and the City Manager, and a full investigation of this company. In particular, I want to know how much the city was going to be paid for allowing this use of our public right-of-way and I want to know all the other locations of these towers and whether or not the cell tower ordinance policy is being implement or is effective in protecting the public as intended.
If this is business as usual, we are not being well-served either by the Director of Public Works or the City Manager.
Nancy Price
How tall is the typical telephone or power-line pole?
It seems that a thin, but tall, pole should not be so much of a concern.
How do telecommunication infrastucture services get delivered if we won’t allow reasonable infrastructure to be built?
Jeff: All of those are legitimate question, but you are missing a huge problem and that is the process. The complaint here is failure to notify, failure to figure out that they are putting something on private property, and the city failing to notify the public as to what is happening. It may end up being that you are correct, but doesn’t it scare you the process that occurred here?
Why is this happening without public comment or hearings?
A NewPath network has completed a rigorous process which gives them full facilities-based Certificate of Public Convenience & Necessity (CPCN) from the California Public Utilities Commission. The process they’ve completed to obtain this level of permission from the California Public Utilities Commission means that they do not need to go through the rigorous planning processes in every community that requires their services. The City of Davis will be processing and issuing permits to us over the next few weeks/months, which will then allow them to start construction immediately.
Yes, the City screwed up by not requiring the company to send out that FAQ (above), but that’s the extent of the ‘damage’. Also clear that absent any further questions of public v. private property looks like the rest of the network will be built without a public hearing.
[i]”How tall is the typical telephone or power-line pole?”[/i]
From Wikipedia: [quote]The standard utility pole in the United States is about 40 ft (12 m) long and is buried about 6 ft (2 m) in the ground.[2] However, poles can reach heights of 120 ft (37 m) or more to satisfy clearance requirements.[/quote]
I am under the impression that the Planning Department issued the encroachment permit.
This problem has arisen in the past. In response, we passed an ordinance that was supposed to take care of the problem.
Council was not informed of these permits. I have requested a full report detailing what went wrong. The entire council has indicated concern with the failure of process.
Sue, Could you comment on “Neutral”‘s comment of 11:12am insofar as we may expect further cell tower construction from this company without informing, etc. Thanks!
Mr. Emlen: “I think the thing was that they would go on existing fixtures such as street lights and things of that nature.”
And not a single responsible staff member thought it appropriate to notify him or other city leadership like the council when the company’s plans changed to freestanding towers?! Maybe some folks need to be fired for such poor judgment on a major project like this. Although the private property question brought this issue forward, the real issues for Davis are much bigger. Who knew about and approved the major details about this initiative? Do we now need a Measure J to cover rights-of-way development? Or just for proposals to construct dozens of towers throughout the city?
doesn’t it scare you the process that occurred here
It doesn’t really scare me, because I don’t think it is too onerous or damaging… it is just a utility pole. Also I expect cities and counties to make mistakes in protocol. Especially now with budgets being so lean. Someday, let me tell you about my dealings with the city of Pasadena and their planning and building department!
[i]Maybe some folks need to be fired for such poor judgment on a [u]major project[/u] like this.[/i]
Major project? You want to fire someone over a utility pole? People make mistakes. It happens. No one got hurt. Move on.
Sorry, guess I misunderstood. I thought from the story that this plan evolved from using existing poles to constructing two dozen or three dozen “towers” around town. I’ll go back and read more carefully.
[url]City Ordinance #2155, Sec. 40.29.60
Exempt Facilities[/url]:
(j) Any wireless communication facility, if and only to the extent that a permit issued by the California Public Utilities Commission (CPUC) or the rules and regulations of the Federal Communications Commission (FCC) specifically provide that the antenna is exempt from local regulation.
Leave us all not get our knickers in too much of a twist here. So far it looks like the only errors were in location of that particular mast, and plain stupidity by NewPath in failing to contact *all* tower property owners.
I think the New Path Networks towers are “microcells,” of lower wattage than existing towers. Since radiation decreases with distance squared you can lower wattage a lot by making the distances you have to cover be smaller. Microwave and radio wave radiation falling on your average individual seems like it should be smaller with a series of microcells than of normal towers. That’s why UC Santa Cruz uses them plus there’s one city’s ordinance I saw a few years ago that calls for them.
I would like everyone to use cell phones just for emergencies but since in fact they are using it for intensive communication like sending photos, the cell phone companies have plenty of market, and by federal law they can build the towers unless there are reasons not to UNrelated to health. Perhaps those pesky microwaves and radiowaves hurt your TV screen image thus lowering your property values?
Given we’re stuck with cell towers I vote for a series of microcells rather than larger normal cell towers, and I did say as much to a city staffer last spring. I’m not thrilled that I live only a few hundred feet from a normal cell tower (by Longs/CVS) but would feel ok if it were a microcell tower. The effect on my TV screen image and other electrochemical I mean electromagnetic things dear to me would be negligible enough for me. (Disclaimer: I’m not an expert, just applied standard equations using wattage and the distance square rule back when my kids were starting UC Santa Cruz with its microcells. Plus just before then during the high school cell tower controversy I’d read a lot about what levels of wattage would most bother me.)
The city staffer I spoke to said he’d be asking the microcell company to locate away from homes but it does sound like the company is blowing off the city since it sounds like they’re building one outside Elaine and Alan’s home. If I found them building one outside my home like Elaine and Alan did, and couldn’t get it stopped because the City has no jurisdiction (sadly) I would say go taller not shorter. The radiation on these things is supposed to head near horizontal, maybe at a 15% angle or so (very vague guess and recollection). If that’s true and foolproof, my guess is that a 41 foot tower above the home wouldn’t radiate it to near the level I get from being a few hundred feet from a normal tower, whereas I’d get nervous asking it to drop to only 22 feet (because I’m also guessing the epicenter of energy is less regular than the near-horizontal beam I’m guessing you get once you back up a little).
Another advantage of a microcell network — away from people’s doorsteps — rather than a larger cell network is that people making phone calls will have to send their calls lower distance so their cell phones will emit less, I’m told (is that just for pricey cell phones or all of them??). Anyhow, this is not only better for the telephoner (and I’m not one), it means when you add up everyone’s cell phone chatter there’s less microwave and radio radiation around. Also, to not interfere with their own devices, cell companies supposedly turn down the wattage on their existing cell towers when they densify their grid with new ones. If true, this spreads the pain more evenly but also lowers it because of the distance squared rule.
Jeff: Process is important because if they can get away without notification when it is not onerous (debatable perhaps in this case), they may get away with it for more serious breeches.
We cut staffing and reduce the hours of the people that are left, and we still expect them to do the exact same work, without any errors, ever.
I think the guy from the company knew that what he was doing was sneaky and, therefore, unethical. That’s where the blame should be.
Process is important because if they can get away without notification when it is not onerous (debatable perhaps in this case), they may get away with it for more serious breeches.
David: I don’t question the general value of citizens keeping tabs on the performance of our local govn’t services; I just think we need to pick meaningful transactions. The same concern you have about the quality of city service declining with a lack of oversight, is the same concern I have about overzealous overseers continually lowering the bar for what agitates them.
[quote]I think the guy from the company knew that what he was doing was sneaky and, therefore, unethical. That’s where the blame should be. [/quote] I doubt that. The installers had no motive to be “sneaky.” In fact, if they put the pole in the wrong location, it’s the company’s loss to reinstall it where the city wanted it installed. It’s also possible that the installers were misdirected by staff, because, you know, sh!t happens.
The points by Adrienne are, from what I know, on point. One major benefit of a microcell network is that it does not require those larger, uglier poles. In fact, if there are tall buildings in a city, the microcells (see image below) can be attached to them and no pole is needed.
[img]http://www.scotland.gov.uk/Resource/Img/1103/0006637.jpg[/img]
I would like to emphasize a couple of things. Much of the concern was for esthetics, not issues of radiation. A pole that is about 15 ft taller than any built structure in a neighborhood is simply inappropriate, and belongs along an arterial street, not a small residential one.
Second, the antennas are 6 ft tall, so cannot be hidden as in the pictures from the UK.
No one has explored the question: was the city going to receive income from
New Path Networks. It is my understanding that when cell towers of any sort are on private property there is a lease agreement. What about on public property?