As the Vanguard reported in December, the citizens of Davis only became aware of NewPath’s because Elaine Fingerett just happened to have been home when a public utility person was around who informed them that they were building a conduit. Without that fortuitous effort, the public would have known little about this project and the city would have been caught in no man’s land.
After public outcry, on December 5, the City Manager rescinded all 37 permits on the grounds that NewPath failed to comply with the City’s wireless Ordinance, that it relied on locations that had not been approved and may not have met location requirements for wireless facilities in the City’s ordinances, other permits relied on access to public property that is not within public rights of way with permitted access, and some of the poles and above-ground facilities are proposed in locations that do not permit such facilities.
NewPath filed an appeal on December 15, 2009 and last night the city heard the appeal. City Attorney Harriet Steiner and Bill Emlen recused themselves so as to prevent any potential conflict. The City Council was given its own attorney who sat at the dais, though he did not say a word. And the City Staff was given a separate attorney, Kimberly Hood, who conducted a portion of the staff presentation. This was done, according to the City Attorney, to prevent a possible avenue of legal challenge.
NewPath bills themselves as a public utility company, but they have a history of these such actions, going into towns without permission or public notice and putting up wireless networks. They are involved in litigation against multiple jurisdictions for their actions.
During the course of the meeting last night, NewPath demonstrated an utter disdain for the citizens of Davis, for the city government, and for its processes.
Councilmember Stephen Souza asked one of the key questions–as to why they failed to involve the public from the beginning. Their answer like most of the answers of the evening was unsatisfactory.
Their basic line of defense was the the Telecommunications Ordinance does not apply to NewPath and even if it did, its 500-foot setback provisions for residential and mixed use areas constitutes both actual and effective prohibition of telecommunications services under federal law.
The City Attorney disagrees with that analysis of course and ultimately so did the council.
But there is more, during the course of the discussion, NewPath asked for time to explain an alternative plan, but the alternative plan sounded just like the current plan with perhaps some modified locations.
They then spent ten minutes lecturing the city as to why the City Telecommunications Ordinance does not work and why they had to circumvent it. Apparently it never occurred to them that if they found the ordinance lacking, the appropriate solution was not to ignore it but rather to bring the matter to a public hearing and see if the council would accept their explanation of the problem. Perhaps it was reasonable. At this point, it looked like a neat graphic, with little credibility behind the messenger.
In the end, the council was unanimous in terms of upholding the rescission of the permits and rejecting the appeal. They also began to initiate steps to remove the towers that were constructed. NewPath could resubmit their application, but there seems little likelihood that they would be granted a permit given what has occurred.
However, the most likely course of actions would be a lengthy and costly lawsuit. This is NewPath’s modus operandi.
What follows are two different lines of commentary.
On NewPath
To me this is not about the issue, this is about public process and the city’s right to determine what goes on in its jurisdiction.
This company was arrogant and brazen. They threw 900-plus pages of documentation at the city council in hopes of confusing the issue.
They claimed they had an alternative proposal when it was really more of the same.
They ignored public process and were unapologetic about it.
They argued that the process did not apply to them and then acted as though they were above the law.
They threw junior clerks at the city, kids who were barely out of school, who sat at the staff table and patronized the council.
These were the actions of a company that did not respect our community and from perspective have no business here.
These guys quite simply are disreputable, conniving, and operate a very shady operation. Every city in the state ought to be aware of their tactics and fear them. They are damaging to a community and costly to their resources. As I said earlier, they have been locked in litigation with other jurisdictions for extended periods of time.
Even before tonight’s meeting, there was disdain. Elaine Fingerett had to practically conduct an investigation to figure out who these guys were. She found the construction company evasive and eventually had force him to come out to her home and talk. He refused to answer questions about what the construction project entailed. But he let the cat out of the bag when he revealed the height of the facility.
On the City’s Actions
Unfortunately, the city will likely deem this to be a personnel matter and the public will never get a full accounting of what occurred.
There is a simple question that needs to asked: how did the city of Davis issue 37 permits for telecommunications installations, including structures as tall as 41-foot-tall towers, on residential front yards without the knowledge of our city manager or a single Davis City Council member?
Again, the problem here is that the city actually issued these permits to begin with. The City Manager probably acted as well as he could under the circumstances. But how is it even possible that he not be kept in the loop. This may seem a somewhat trivial matter to some, but one must recognize that in this case, these actions cost the city probably hundreds of man-hours and large costs in legal expenses. It took up a significant amount of city time. And of course it was an embarrassment.
Our Community Development staff, including Katherine Hess are clearly to blame here and what happened is unforgivable. Before the arrogant display by NewPath at the meeting, I might have given them the benefit of the doubt regarding process. However, given that and given their record across the state, not so much.
Our Community Development Department and Katherine however know this community and should have darn well have known better than to proceed without public input. She put her boss, the City Manager, in an unenviable position and the city council on the defensive.
The public needs to KNOW with no uncertainty who is to blame for this debacle. They need to understand exactly what went wrong and the council needs to put into writing terms and conditions that will dictate how future incidents might be better handled.
Given the amount of damage this has caused, the Vanguard thinks the best course of action would be to replace the Community Development Director immediately upon a closed-door hearing and have an open session item that lays out to the public on no uncertain terms what happened and the steps that will insure this never happens again.
The city of Davis needs to have no further dealings with this company NewPath, and they should issue a warning to the League of California Cities against future dealings with this disreputable company.
For the actions of Elaine Fingerett, blowing the whistle on this operation, we should all be appreciative. Clearly Ms. Fingerett did not set out to be a hero on this matter, but her quick thinking and vigilance clearly prevented a far worse situation from transpiring. We found out late, but we found out before it was too late and for that we can all thank Elaine Fingerett.
—David M. Greenwald reporting
I’ll grant the arrogance of the company (and have in the past), and the need to force them back through the process for any locations objected to by the owners. That stated, Building & Planning has nothing to do with encroachment permits:
Info: A permit is required whenever public access is needed in the right-of-way for a purpose other than its designation (i.e.: sidewalk use other than for pedestrians, extended use of the street or alley, or installation of utilities.) You may apply for a permit at the Public Works Administration offices, Corporation Yard, 1717 Fifth Street, Davis (call for fee).
I happen to live in an area of town where utilities are *not* underground, and I already have a 40 foot utility pole less than 20 feet from a City light standard, both on my rear property line. So let’s just agree that in some cases the ‘visual and aesthestic’ impacts would be nil, and are wholly dependent on the specific installation. Let’s also agree that barring any further NewPath failure to communicate, the permits will be reissued in proximity or *exactly* where they had been located, albeit with modified designs.
None of which has a damn thing to do with Katherine Hess.
The planning department issued the encroachment permit, this is according to numerous sources including Sue Greenwald who posted it on a previous article.
You can read the staff report as well in terms of staff errors, though it does not specify which staff.
“When NewPath came to the City, NewPath asserted, and staff made a decision, based on NewPath’s assertions, that NewPath’s facilities were in the right of way and were exempt from discretionary City review. Based on this erroneous determination, the NewPath requests were sent through the City’s encroachment permit process and were handled by lower level administrative staff.”
Now you will notice it says lower level administrative staff, this is actually not true according to several sources. I stand by what I have reported here. You will note that Lamar got shut down last night when he attempted to press this issue, but it will come up again.
Good job, DPD. The only addition is that NewPath stated that they had been working with the city for 11 months! I felt everyone last night was a bit ‘holier than thou’ with NewPath and overly grateful to the city. NewPath is arrogant but the city has culpability also.
Agree not just personnel issues here but the WHOLE process needs to be examined, e.g., what evidence was given at the onset that NewPath was necessary.
Is there a posted list of proposed locations?
Good point, I’d like to know who was working with NewPath from the city for 11 months.
David et al.: How did the public comment process go last night concerning this project? Thanks, Steve Hayes
Good amount of commenters last night, including a number of people who don’t usually show up to these meetings but who would have been personally impacted by the project.
“The public needs to KNOW with no uncertainty who is to blame for this debacle.”
David, The people to blame are the people from NewPath. They come into towns and create havoc. That’s what they do, per your description.
“The only addition is that NewPath stated that they had been working with the city for 11 months!” and your response, “Good point, I’d like to know who was working with NewPath from the city for 11 months.”
Why on earth would we believe ANYTHING that NewPath asserts?
Neutral: As Community Development Director, Katherine Hess is responsible for the design and approval of new construction.
Ryan: New Path had to work w/ the City to get permits. Katherine Hess is the lady that signed the permits.
Who decided there was a need for better phone coverage? With zero public input, Ms Hess issues permits for thirty seven (37) towers. Several simply appear on people’s lawns w/ no advance notice. Several proposed tower configurations are poorly thought out. The CIty Manager didn’t even know this project was happening. Should we allow a Community Development Director to work this way? No accountability or transparency?
In last night’s City Council meeting, the permits approved were described as a mistake. The vote was to rescind the permits. If not Hess, who did NewPath work with for almost a year? Also interesting is the history on NewPath. It was formed in 2004. It is not a public utility. NP is a private group of investors. Who chose to work with these people? Even if it was a low level CDD employee, CDD Hess is still responsible for the project.
Hess has a long history of working “under the radar”. For example, few people know about a recently approved development called Chiles Ranch. CR is 129 units which will be built on 12 acres of virgin land zoned ag for 100 years. The 12 undeveloped acres are in East Davis adjacent to the cemetery on Poleline. Katherine Hess’s personal decisions, creative interpretation of zoning laws and formal recommendations to City Council made CR possible. If the public could have voted on Chiles, it never would been approved. She chose to ignore a formal citizen/development agreement. She publicly stated that citizen input has no value and that her staff makes the final decisions.
Arrogant is a good description for New Path. It seems appropriate to Katherine Hess as well. Agree w/ David that she should be fired.
How many other towns are having legal problems w NewPath? Actual numbers would be nice to know, if you have any idea DPD. And what is the likelihood NewPath will succeed from a legal perspective? Or are they dead in the water if cities refuse to issue permits. I am more concerned with whether NewPath can get away with doing what they want, than any other issue at the moment. Can NewPath be forced to work with communities, or do they have some legal right of way that trumps what citizens want?
Katherine Hess is responsible for the design and approval of new construction.
And your point? The bulk of the permits were encroachment (public works), not building.
Elaine: I don’t have numbers, we know that Irvine and a city in Arizona have had litigation and numerous other cities have had problems with them. No one I asked knew how many precisely, but it was multiple cities. This is how they do business in every city.
Neutral: you’re right. However, someone did approve them w/o public comment or the City Manager’s knowledge. There should be some accountability here.
A large thank you to the City Council and the City Manager for rescinding the contract.
I thought the phone companies have different network/antennae requirements so how does this company operate? Do they pay franchise fees? In Davis I would think 99% of the solution would be to use the water towers – they are clearly higher than anything else. If that does not work how about a few artificial pine trees – that is the solution in Los Altos Hills.
I hope the city will end up with a provider or microcells which is responsive to the city and citizenry. The microcell idea wasn’t bad; the company placing them without regard to residents’ preferences or city zoning was bad. In fact it makes me not trust that Newpath would stick with microcells.
Ultimately an ordinance planning for microcells would be good. Microcells done properly can be less visually intrusive than regular cell towers, which is the only thing the City can consider. As a private citizen, I strongly prefer the lower microwave and radio wave dose from microcells.
I can not agree more with the Vanguard that Hess needs to be fired and replaced. Hess has cost the city, literally, millions of dollars due to her incompetent actions over the years. With the city already having serious financial issues, we simply can not afford to continue paying her $126,000 annual salary to continue consistently screwing up. I have read in the Vanguard that her salery is actually $166,000 with benefits!
We need to fire Hess before she costs us more millions of dollars and before she causes more planning disasters. For instance how did she get away with violating the Chiles Ranch Memorandum of Understanding. Many have heard about how she she arrogantly screwed those neighbors as well as many other neighbors and neighborhoods.
We need a new Director of Community Planning who is competent, has integrity, and who will not be a constant financial liability to the community. Also we need a director who will work WITH the citizens who are paying her six figure salary…not against them. The message seems to be clear that needs to get out to our community, especially after last nights meeting on the cell tower mess caused by Hess:
Save Davis…Fire Hess.
Otherwise, the disasters will continue as well as the costs to Davis residents due to Hess’ arrogance and incompetence.
Folks:
Process matters.
Building cell phone towers in people’s yards is a big deal and some public hearing is appropriate. Our City Council does not seem to get this. Its another example of contempt for the citizens of davis. Hess is a key player here
A cell tower was built at least 500 yards from my house and I received city notification about the project before it was built but this company has plans to build one only 100 yards away and we hear nothing?
What’s up with that?
Katherine Hess has been around for a very long time and represents a good local case study of the “Peter Principle” – although a credible case can also be made that she took advantage of cronyism to rise well beyond her native level of incompetence. The fact that Bill Emlin has allowed her to remain the head of a department calls into question his fitness to serve as City Manager.
I’m also taken aback by the $166,000 salary figure that is floating around this blog (David – is this her base salary or does the figure include her benefits package?).
Given the extreme rancor and utter lack of consensus building that exists in Davis, it would be entirely appropriate for the City Council to instruct Emlin to reorganize the Community Development Department. This would logically include (1) replacing Hess with a new outside hire, (2) tasking the new director to build a culture of performance, service (to the community as well as development interests), and consensus. If Emlin doesn’t support and/or is unable to effectively execute such a reorganization … then we should start with a new City Manager and go from there.
After reading about this cell tower mess on the Vanguard and in the Enterprise I am not surprised that Hess is responsible. I wonder how much it cost the citizens of Davis to pay for three attorney’s to be present all night at City Council to represent staff and to represent Council?
We need to cut our losses and fire Hess before she brings on more costs and financial losses to the City. I agree with Gadfly. If Emlen won’t fire her, then we need to fire him too. Emlen may not care about all of Hess’ screw-ups that are coming to light, but we as a community do care especially when WE wind up paying financially and having to live with the fallout. The biggest insult that we are paying Hess $166,000 per year to wreck our city.
Hess has GOT to go before she does any more damage to Davis. We need to get new blood in as a director of our planning department who knows what they are doing and who cares about the community concerns.
Will our present City Council get rid of Hess? Will our City Council be any batter after the upcoming elections? I do worry that we keep looking at all of these issues piecemeal. I see a pattern here.
Look at the bigger picture – first TANC, then the radio tower, then the telecommunications towers. All w/o public input. Creepy…
“… we keep looking at all these issues piecemeal. I see a pattern here.”
It’s called politics. There is no such thing as a “global solution” … you have to take the issues as they come. Waiting for a progressive majority to address obvious problems is a losing strategy (and a red herring).
As things currently stand, there is a critical need to reorganize the Planning Department under fresh new leadership from outside the existing bureaucracy. The list of ugly, divisive controversies over the last decade is too long to ignore. The community as a whole is wasting enormous amounts of time, energy, resources, etc. because we don’t have effective/competent consensus-focused leadership in key positions.
The Hess problem is one that must be addressed now because the incompetence and the financial liability will continue regardless of who is on Council until we get a new planning director. There has never been more angst and havoc in the city’s planning since Hess became director. The Council has a fiscal responsibility and a legal responsibility to protect the city. After this cell tower debacle it is clear that there needs to be new and more capable manager of the planning department. I agree that we need someone new from outside the department to clean up the obvious management problems.
Another “Hess Success”…..
She’s gotten approval for a marginal, non green 129 unit development. Location is a gorgeous undeveloped 12 acre rural parcel in East Davis. It’s been zoned ag for 100 years.
Her personal decisions, creative interpretation of regulations and formal recommendations have made Chiles Ranch possible. A majority vote of CIty Council approved it.
We have a “Community” Development Director who’s publicly stated that a formal citizen/development agreement has no value. A CDD who ignores citizen input and makes substantial last minute changes.
Someone whose actions can be charitably described as “under the radar”. Also, the City Planning Department whose policies clearly come from Hess. In a recent visit, I was personally told that “citizen input has no value. Staff makes all final design decisions”.
Time for a new outside hire CDD. Let’s find someone w/ some imagination who’s willing to listen to people.
Most residents don’t have any idea how much damage has been done. CDD Hess is making permanent changes to Davis. Like the cell towers and other projects, virtually no one knows about a 12 acre East Davis development that’s been approved w/ her support. I provide more details on Chiles Ranch to support finding a new CDD.
CDD quietly used a 37 year old land use decision (one sentence in a report 3 weeks before Council vote) to justify No Measure J vote on 12 acres of undeveloped land zoned ag. Yes, technically correct. Is it appropriate when the P vote made it very clear we’re not in favor of developing ag land? It NEVER would have passed a J vote. CDD recommended this project. Like New Path, another questionable choice of contractor. Why support developers w/ no experience. Hmmn, kind of like the recent Wildhorse proposal.
Cut down 200 of 250 trees (admittedly not all healthy) to make way for a densely packed overpriced subdivision. Brownscape (rather than green) to save the City money. There are many other “adjustments” like this. Some which ignored a formal citizen/developers agreement. Again, I present these details to support finding another CDD.
Based on history, we have have no idea what will happen next. Why are we paying someone $166k to ignore citizen input and make unwelcome changes to Davis? Propose gathering signatures to present to the City Council and City Manager.
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