The Vanguard has learned that the telecommunication company, NewPath has filed a lawsuit against the city of Davis stemming from the rescission of encroachment permits by City Manager Bill Emlen in December the subsequent denial of appeal by the City Council in Janaury.
On January 19, 2010, the Davis City Council unanimously voted to deny an appeal by NewPath on the rescission of encroachment permits by the City Manager Bill Emlen. Bill Emlen made the decision on December 5, 2009 to rescind NewPath’s encroachment permits and related building permits for a proposed cell tower distribution system across the city.
The city asked NewPath to reapply under the Telecommunications Ordinance and go through the proper public process.
According to representatives from the company at the January 19 meeting, 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.
By January 28, 2010, NewPath had decided not to attempt to work with the city and its citizens. Instead it filed a lawsuit against the City of Davis in California’s Eastern District of the Federal Court in Sacramento.
City Manager did not return a call from the Vanguard on Thursday, however in a memo on February 5, he told the city council:
“Apparently New Path decided to follow the quick path to litigation. They filed in US District Court down in Long Beach.”
He continued:
“It is increasingly clear that New Path never wanted to follow the public processes established in our ordinance.”
In the lawsuit it claims that California law authorizes NewPath to provide radio frequency transport and related telecommunications services under a Certificate of Public Convenience and Necessity (CPCN) issued by the California Public Utilities Commission (CPUC).
“NewPath’s Modified CPCN authorized NewPath to construct its DAS in locations throughout the state subject only to obtaining the required environmental review under California Environmental Quality Act (“CEQA”) pursuant to a process outlined in the Modified CPCN.”
From January 2009 until November 2009, NewPath claims it engaged “in ongoing consultations with representatives of multiple City departments, including the heads of the Community Development, Public Works and other City departments.”
“After eleven (11) months of interacting with these City representatives, during which the City represented to New Path that the City Manager was being consulted by the Director of Community Development regarding NewPath’s DAS as well as the permitting process that the City wanted NewPath to follow, the City granted the Permits and authorized to proceed with construction of the DAS.”
NewPath was granted a notice to proceed on November 25, but on November 30, the City Manager issued a Stop Work Notice “to allow for investigation of potential conflicts with the City’s Telecommunications Ordinance and to determine whether permits were issued properly.”
The complaint goes on to contend:
The City Manager, shortly thereafter, issued a letter rescinding the Permits on several grounds, including, “(1) that NewPath did not, and has not, complied with the City’s Telecommunications Ordinance [Wireless Telecommunications Facilities Ordinance codified at Davis Mun. Code §§ 40.29 et seq. (“WTF Ordinance”)]; (2) Certain of the permits for ground based fiber and conduit rely on the location of the wireless facilities, which, as stated above, have not been approved and which may not meet the locational requirements for wireless facilities in the City’s ordinances; (3) other permits rely on access to public property that is not within the public rights-of-way for which no agreements have been reached to permit access and use by NewPath; and (4) certain poles and other aboveground facilities (including proposed monopoles) are proposed for locations that do not permit aboveground facilities.”
Before the January meeting, In advance of the January 19, 2010 appeal hearing and as part of a presentation NewPath argues it “submitted extensive documentation validating the existence of significant coverage gaps and the variety of additional alternatives NewPath considered following the Stop Work Notice.”
NewPath claims the city ignored this evidence and instead relied on the City Attorney’s analysis of the law that claimed that NewPath would be obligated to file new application under the city’s ordinance despite the city’s assertion that much of NewPath’s nodes were prohibited under the terms of that ordinance.
The crux of the claim is a violation of the California Constitution and other laws:
“NewPath contends that the California Constitution and laws confIrm that the City properly issued the Permits without requiring NewPath to submit to the requirements of the WTF Ordinance which, consistent with the prohibitions outlined therein, would have resulted only in denial of NewPath’s application. NewPath further contends that no “exemption process” is either outlined or contemplated in the City’S WTF Ordinance. NewPath seeks injunctive relief and a declaratory ruling that the City is precluded from requiring that NewPath undergo a futile and preempted zoning process. NewPath also seeks a declaratory ruling that it is not obligated to file for an exemption from the WTF Ordinance or for discretionary use permits under California state law and related rulings of the CPUC, and is thereby permanently enjoined from requiring zoning or other discretionary use permits as a condition of obtaining related nondiscretionary permits.”
NewPath is filing in federal court because they are arguing that the federal Telecommunications Act of 1996 which was designed in part to “accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services to all Americans by opening all telecommunications markets to competition …. “
Moreover it provides that:
“The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof shall not prohibit or have the effect of prohibiting the provision of personal wireless services.”
According to City Attorney Harriet Steiner, the city will have a formal response next week in which they oppose this suit and there is a hearing set for March 8 set for Sacramento Superior Court in which the courts will weigh in on the motion for preliminary injunction brought forth by NewPath.
The Vanguard will continue to monitor this case for further developments. It should be noted that while the city believes it is on very strong ground legally, NewPath has filed a similar lawsuit against the city of Irvine that the city has had to fight off for over four years. Hopefully cities such as Davis and Irvine that have been victimized by disreputable companies such as NewPath can work together to form legislation that will protect future cities and residents from suffering a similar fate.
—David M. Greenwald reporting
Question: if the city originally told New Path they needed to follow ordinance, would we be in this mess?
I am confused by the 11 months of continued communication with dept heads who conveyed the city manager knew.
How can we know whether thus 11 months is true and what was happening in the 11 months. I have no fondness for this company but am confused by the city’s apparent 11 mon participation. ?
SODA: I’m right with you on this. Some believe and have argued this is a non-issue, but I think in part we are led to this point because there was some information given to NewPath that was inaccurate.
City Manager Emlen acted as though he didn’t know–did he know? If he did not know: was staff misleading to Emlen or was NewPath lying in their complaint?
SODA: That question was asked and answered *before* NewPath proceeded with applications for permits. The timelines and background is in the City’s packet for the night of the hearing (Jan 19th). Specific methods, materials, designs and locations are most clearly shown towards the end of the document @ around pp. 215.
David: Thanks for making my point at the end of the ‘discussion’ yesterday.
I may have made your point, but I’m not sure I agree you’re right here. I think there is a process issue and part of it was fumbled by city staff and the rest the problem of NewPath. The question is how much blame goes to which party and who fumbled.
Neutral
thanks. Could you cite or paraphrase for the blog. I would think if they state this to be true (11 mon, CM knew) in their suit/complaint, they would be less likely to lie, agree?
How many tens or hundreds of thousands of our taxpayer money will now be wasted on lawyers in order to fight this? It should’ve never been allowed to proceed to this point. Some heads should fly.
Rusty:
fortunately, the city is covered in an insurance pool called YCPARMIA ([url]http://ycparmia.com/[/url])
info:
[quote]YCPARMIA is a legal entity formed through an exercise of joint powers by our participating agencies, who are listed in the column to the right. We provide risk management, insurance, and safety services to our members.[/quote]
So as I understand it, we pay a deductible, akin to a co-pay, and the pool insures us. That doesn’t make it free money, obviously, but the city of Davis alone will not be paying hundreds of thousands of additional money to fight this.
Thanks David, well at least we won’t get our pockets picked too badly. Question, did the city ever plan notifying neighbors who lived fairly close to these towers of the plan to erect? The reason I ask is I was notified of a cell tower that was being built over 500 yards away and heard nothing of one of these new towers that was only 100 yards away.
Yet another example of City incompetence–it sounds like we have Hess and Emlen to thank for this once again.
SODA: The reference is in the NewPath submittal @ page 2 stating “first contact” was with the City IT/Telecom manager on Jan 22 last year.
David: “Mine’s bigger” is no way to run a City, but that’s what we have here. I wrote the first time this came up that I felt this entire fiasco was blown out of all reasonable proportion by the “incident” @ the Village, and haven’t changed my mind.
rusty: Read the permits. They are on the City’s “NewPath” website, and reproduced here in yesterday’s commentary.
[quote]rusty: Read the permits. They are on the City’s “NewPath” website, and reproduced here in yesterday’s commentary[/quote]
Neutral: Being one of the few dissenters on this issue, instead of referring people to documents elsewhere, I’d suggest either quoting those documents, providing a link to the direct answer (not to a hundred page document without any mention of page number), or just answer the question in calm, collected, and objective words.
Being that you’ve taken the position that you’ve taken, would you agree that had the ordinance been put into effect the City would wind up with a lawsuit similar to this one? Reads to me that NewPath wouldn’t have ever accepted the terms of the ordinance. In that case, perhaps the route that was taken with encroachment permits was an attempt to avoid this conflict in a reasonable manner, rather than create conflict. Alternatively, maybe this is all necessary to actually test and prove the ordinance in court. Or is it that the ordinance already has the precedent it needs to stand unchallenged?
Enophile: The answer to rusty’s question – notification – is one click away, along with the commentary David wrote fairly laying out the issue. In the two prior cases where I’ve referred back to the City’s appeal packet, I *did* give page numbers. For those who haven’t yet read the cliff-note version of events, the City’s web site is [url]here[/url].
As to the application of the ordinance, I don’t know. The lawyers are fighting over the answer to that question right now.
Notice to business: it doesn’t pay to do business in Davis.
Notice to Davis: keep expecting your tax bills to increase and your services to decline as you chase away business to protect your village lifestyle.
[quote]cities such as Davis and Irvine that have been victimized by disreputable companies [/quote]
How about: “average businesses victimized by Davis’s dysfunctional planning and development processes and anti-business political climate.”
Davis is not being victimized. Modern life requires communications distribution infrastructure for desired services. We are the elites in the region that scream NIMBY, but then consume more of these services than our neighboring cities where we would just as soon see the infrastructure reside.
Did the City make a mistake? Or, does their local ordinance conflict with State law and NewPath was making assumptions that Davis has to comply just like every other city they have done business in?
By the way – I was recently out at Glide Ranch… out in the beautiful Davis countryside… and I noticed… GASP… several 40 ft. tall power and phone distribution poles around the property. My senses were assaulted. My views were mitigated. No doubt that the animals were growing tumors from all the RF and EMF waves. How could the County let this happen?
Jeff:
The real notice to business should be don’t put things on other people’s property without talking to them first. As a libertarian, I would have thought that would be your foremost consideration.
Ummm … did we all miss something? Is this just now coming to the public’s attention almost 2 weeks after the lawsuit was filed?
David: You are tuned in better than most. When did you first find out? Isn’t this something that should have been disclosed to the public at the Feb 2 city council meeting?
Norm: I found out on Wednesday when one of the councilmembers emailed me in response to the NewPath article on the encroachment permits. When I spoke to Harriet Steiner yesterday she indicated that the city would be posting these materials on their site, but they were dumped with 8 inches of paperwork.
Norm: Don’t know about David, but I found out (and posted) yesterday searching for the Irving lawsuit.
David: Some confusion here. Did Emlen ‘misspeak’? Long Beach is definitely not in the Eastern District.
Rats: That should be “Irvine” lawsuit.
“City Manager Emlen acted as though he didn’t know–did he know? If he did not know: was staff misleading to Emlen or was NewPath lying in their complaint?”
David: You lost me at …”was NewPath lying in their complaint?” Are you stating that NewPath has made the claim that members of the city staff misled Bill Emlen?
Do you have a link to the complaint?
Neutral: My apologies for reading over your reference to page 2 in response to SODA. I’m not trying to aggrevate you. With regard to the rest, dismissing questions as having answers that can be found elsewhere rather than in your response to the question really doesn’t promote communication. It’s just a suggestion…
As David points out above, a critical argument of NewPath is that compliance with the ordinance would have resulted in effective denial of the project, presumably (as I’m understanding it), because the ordinance is written in a manner that no similar wireless project would ever be permitted in the City.
Understand, I’m just trying to figure out why this should be such a big deal. I don’t get immediately excited when I read comments that Hess and Emlen should get canned. More interesting to me is the thread of Jeff Boone’s comment – Notice to business: it doesn’t pay to do business in Davis – and not because I’m feeling bad for NewPath.
[quote]The real notice to business should be don’t put things on other people’s property without talking to them first. As a libertarian, I would have thought that would be your foremost consideration.[/quote]
David: Certainly – I agree that the city seems to have dropped the ball here. However, we both know that proper property owner notification would have set the same wheels in motion to block tower construction. As a center-right-libertarian-type person I am absolutely in favor of protecting personal property from unauthorized encroachment and other business or government impacts and intrusions. However, I am also in favor of allowing business to operate within some reasonable standards of expectation. Davis residents are completely unreasonable in their expectations for urban lifestyle. We can’t snore, burn fireplaces, and allow shopping alternatives… we cannot accept a few poles for distribution of necessary communications services. Sometimes I think we are just a wacked out bunch of recovering hippies… but still in need of intensive therapy.
We have a nice community because of the diligence of our citizenry to keep it so, but we go too far in our outrage about things that are normal and standard… like 40 ft. communication service poles installed in and amongst our houses.
40 ft. communication service poles installed in and amongst our houses
Actually, I would not support having a 40′ communications pole installed IN my house.
“Some confusion here. Did Emlen ‘misspeak’? Long Beach is definitely not in the Eastern District.”
Long Beach is the location of the company, I can see how he would have thought it was filed in Long Beach, Harriet clarified that it was Sacramento.
Jeff:
” Davis residents are completely unreasonable in their expectations for urban lifestyle. We can’t snore, burn fireplaces, and allow shopping alternatives… we cannot accept a few poles for distribution of necessary communications services.”
As far as I can tell, Davis is not unique, people in some communities wish to keep the character whether it be through growth control, limitations on shopping, or visual sightlines/ blight. The fire ban is not something unique to Davis and in fact Davis is behind neighboring communities on that issue. And the snoring issue was a one-of-a-kind issue.
That said, my interest in this issue is the breakdown of public process whether it occurred by the city or the company.
As far as I can tell, Davis is not unique, people in some communities wish to keep the character whether it be through growth control, limitations on shopping, or visual sightlines/ blight.
David: Although I was venting extremes to make my point, I disagree that Davis is not unique in our agitation over what are, in most other California communities, typical commercial developments.
As a fellow resident of West Davis, you have to agree that telecommunication services were very slow in reaching us compared to all the communities around us. Up until about 2005, my cell phone coverage and Internet service choices were lousy.
I grew up in San Luis Obispo, it was very similar. It has a few more stores than Davis now, but that’s fairly recent. You know what you’re getting when you come to a place like Davis and clearly it is not for everyone. I guess I don’t understand why you can’t allow communities to decide what they want.
[i]”I can see how he would have thought it was filed in Long Beach, [u]Harriet[/u] clarified that it was Sacramento”[/i]
Harriet is a more popular name on the Obit pages, now, than it is on the Birth Announcements page. Here is where it ranked each decade over the 20th Century among names for girls in the U.S.:
1900s — Harriet — Ranking 116
1910s — Harriet — Ranking 113
1920s — Harriet — Ranking 134
1930s — Harriet — Ranking 160
1940s — Harriet — Ranking 189
1950s — Harriet — Ranking 319
1960s — Harriet — Ranking 573
1970s — Harriet — Ranking >1,000
1980s — Harriet — Ranking >1,000
1990s — Harriet — Ranking >1,000
How many Harriet’s would be referenced in the context of a lawsuit against the city of Davis?
This portion of the Vanguard article is stunning:
“After eleven (11) months of interacting with these City representatives, during which the City represented to New Path that the City Manager was being consulted by the Director of Community Development regarding NewPath’s DAS as well as the permitting process that the City wanted NewPath to follow, the City granted the Permits and authorized to proceed with construction of the DAS.”
Catherine Hess has a long history of policy failures to her credit, destroying neighborhoods with bad planning, and advocating for the developers best interests. So now, Hess as a failed director of Community Planning, has cost the city and citizens of Davis what is certain to be years of time and energy (which will result in financial cost to us ultimately even if it is in staff hours paid on this) for this phenomenal disaster. Just when we have enough financial woes and other substantive issues to deal with as a community.
Hess has caused more division and distention in the community than any other city employed. An even more despicable action by her is to try to diffuse the blame to other city co-workers when it was Hess who did the negotiating for ELEVEN MONTHS and then gave the permission for the permits to be issued. To top it all, it looks like she lied to NewPath about informing City Manager Emlen!
There is no excuse for this mess to have happened. NewPath is not blameless but why ever would they not proceed when the director of Community Development gave them full permission to proceed? Furthermore, it was clearly Hess’ responsibility as director to notify the public about these 37 cellular towers being placed in various parts of community. The cell tower issue have always been controversial and of great upset to neighborhoods. There was a huge meltdown on this very same issue regarding north Davis and proximity to Davis schools and Hess had to have known about this as a city employee. In fact she allowed a cellular tower to be placed on one of her properties and gets paid for it.
Hess must be fired for her long history of screw-ups but this cell tower debacle, because of her incompetence, is beyond belief. Paying her $166,000 per year salary for her level of massive incompetence is ridiculous. If City Manager Bill Emlen will not fire her and is part of a cover up, then he needs to be fired as well.
[i]”How many Harriet’s would be referenced in the context of a lawsuit against the city of Davis? “[/i]
[b]Nigel Tufnel:[/b] The Harriets all go to eleven. Look, right across the board, eleven, eleven, eleven and…
Marty DiBergi: Oh, I see. And most Harriets go up to ten?
[b]Nigel Tufnel:[/b] Exactly.
[b]Marty DiBergi:[/b] Does that mean it’s louder? Is Harriet any louder?
[b]Nigel Tufnel:[/b] Well, she’s one louder, isn’t she? She’s not ten. You see, most blokes, you know, will be playing Harriet at ten. You’re on ten here, all the way up, all the way up, all the way up, you’re on ten on your Harriet. Where can you go from there? Where?
[b]Marty DiBergi:[/b] I don’t know.
[b]Nigel Tufnel:[/b] Nowhere. Exactly. What we do is, if we need that extra push over the cliff, you know what we do?
[b]Marty DiBergi:[/b] Put Harriet up to eleven.
[b]Nigel Tufnel:[/b] Eleven. Exactly. One louder.
[b]Marty DiBergi:[/b] Why don’t you just make ten louder and make ten be the top number and make that a little louder?
[b]Nigel Tufnel:[/b] [pause] These go to eleven.
I grew up in San Luis Obispo, it was very similar. It has a few more stores than Davis now, but that’s fairly recent
David, it is the “fairly recent” comment that makes my point. Please name another California city with a similar population that has as few shopping alternatives at this point in time. Note that SLO has a Costco and Home Depot and other big-box stores that Davis residents would never allow.
I’m not in favor of Davis becoming Folsom, but I think we demonstrate for far too much village lifestyle statism for our own good. I think we might be stuck in a time warp and need to alter our vision of urban living a bit. A Home Depot on the periphery would actually enhance my quality of life while keeping the sales tax revenue from my constant stream of home maintenance/renovation projects in our pocket. A few extra 40 ft. telecommunication poles might actually serve to enhance service offerings… possibly increasing quality and lowering costs through competitive options.
If the cost of progress is the blocking of a very small percent of the sky for a very small percent of residents, then I vote for progress.
Jeff, a Home Depot in Davis would probably put Davis Ace and Hibbert Lumber out of business, and would definitely not be good for mine.
Jeff, a Home Depot in Davis would probably put Davis Ace and Hibbert Lumber out of business, and would definitely not be good for mine.
Don – I’m not so sure about your shop because you serve a niche of high-end service that Home Depot cannot equal, but I will certainly conceed that it might present some new business challenges for Ace. Speaking for myself, I already drive to Woodland Home Depot when I need big quantities of supplies. Davis Ace personnel are marginally better (more knowledgeable). However, the problem with Davis Ace is their inability to stock enough product. What a Home Depot would do is cause Ace to change what they stocked, hire more knowledgeable sale people, and maybe adjust their hours… however, I don’t think a Home Depot would knock them out of business unless they failed to adjust.
Note that SLO supports a Home Depot, Pacific Coast Home & Garden, Orchids… and several smaller gard supply / nurseries. I think more business already leaks out of town than most Davis merchants know or want to admit.
As an aside, have you felt any hit from Target yet?
Here are some simple facts:
1) Someone choose to do business w/ New Path despite their reputation.
2) New Path is NOT a public utility. It is a private group of investors.
3) In 11 months, there’s been zero disclosure or effort to inform the public
4) The only reason the 37 towers haven’t been suddenly installed is because a few citizens complained
5) No City staff member will take responsibility for this project. Why?
6) City Manager denied he knew anything about the project
7) New Path has now filed a lawsuit
Comments
1) if the cell towers really are needed, there are many easier, less intrusive ways to have cell towers (per a planner from another city). Put a cell tower directly in the middle of a bike path?
2) The Community Development Director has a long history of operating “under the radar” and producing unpleasant surprises. Someone made the decision to go forward w/ this project. It wasn’t the City Manager.
Do the citizens of this community really want to keep getting surprises like this?
As I understand, these are not “cell towers”, just typical service poles. Sort of the same thing we attach lights to and install all over the city. Please correct me if I am wrong.
Jeff —
Well, I don’t want to re-start the whole big-box debate. But anytime these large retailers open on the edge of a city, they cut business to existing retailers somewhere in the range of 30%. Some can sustain that, some can’t. It isn’t that a majority of people want to shop at them. The fact is that a majority of shoppers value other things as highly as, or more highly than, price. But if you are already willing to drive out of town in order to get selection and save a little money, I don’t see why the current planning strategy that Davis has — encouraging the downtown and neighborhood shopping — should be changed to accommodate you. Big-box development has very adverse planning effects on growth, traffic, and the viability of smaller shopping centers.
Whether or not it makes the older retailers “better” is questionable. All of the changes you’ve described cost money. If you cut their business 30% or so, it will be even harder for them to “stock enough product.” It will be harder for them to maintain the overhead needed to match the store hours of the big-box retailers. They will be hard-pressed to pay sufficient wages to attract and keep knowledgeable employees. They will likely have to reduce benefits, if they provide them. They will have to cut their advertising budgets, when they probably shouldn’t.
Home Depot would knock existing companies out of business when the owners finally decide they don’t want to try to live on the reduced income. Then, when those businesses close, there is very little likelihood that anyone will open another one in a category that competes directly with the big-box retailer. Ultimately, the effect of bringing in these giant retailers is to reduce consumer choice, as the smaller competitors fall away. How many places can you now buy consumer electronics?
I have lived here long enough to watch the impact of big-box retail on both downtown Woodland and Vacaville, and more recently on Dixon. All have killed their downtowns. Woodland’s downtown is now, as I understand it, going to be a redevelopment district, just as happened in Fairfield. Several of the remaining small retailers have closed there.
What I don’t really understand is why people who care about having generic big-box retail choose to live in a town that doesn’t have it, and then complain about that. There is no shortage of places to live that have those shopping options, if that matters to you.
It is hard to assess the impact of Target, since it opened during a serious recession. 2009 was already substantially down compared to 2008 for local retailers. Target may have cut into some of my holiday sales, and will probably affect my sales of house plants to students, among other categories. My ratio of sales of plants to dry goods is usually about 70/30; more like 60/40 in the off seasons. My guess is the dry goods will be affected somewhat. Many plant categories will be unaffected. By far the biggest factor in my sales year to year, other than the local economy, is weather. Rain = no sales.
As to the impact on Davis retailers overall, we will know better when the 4th quarter sales tax totals are reported. If the total non-auto sales tax income was flat or down Oct. – Dec. compared to 2008, then we can assume that
— Target took business away from existing retailers;
— the recession and state budget woes got worse for everybody compared to Q4 08, and/or
— Target failed to meet their projections.
As to the topic at hand, I find it hard to figure out exactly where the fault lies. But it seems that a company which chooses litigation as a business strategy, rather than just rolling up their sleeves and engaging the community in order to move forward, may not be one that we wish to do business with.
Community notification and outreach isn’t that hard. I remember in the 1980’s when the contractor came to town that installed the cable-TV lines throughout the city. They ran roughshod over some lawns and gardens (literally) and started getting deluged with complaints. So they budgeted for repair work, then hired us to go in and fix their damage. No offense to lawyers reading, but we were a lot cheaper per hour, and definitely better for their public relations.
“I have lived here long enough to watch the impact of big-box retail on both downtown Woodland and Vacaville, and more recently on Dixon.”
I’m not sure about Vacaville. The times I have been there the old downtown seems to be thriving. I can never seem to find a parking space. There is no doubt that it has changed over the years, but I don’t see many vacant stores and there is generally a lot of activity.
Dixon and Woodland have had crappy downtowns since day one, so they are not the best comparison.
There are plenty of other city examples where copious periphery shopping exists and the downtown does well enough. I think it depends on a lot of things.
As much as I would prefer that good merchants like you do not get hurt financially by competition with larger retailers, I wonder how long we all can suffer the lower tax receipts that result from the protection.
No offense to lawyers reading, but we were a lot cheaper per hour, and definitely better for their public relations.
I have a business property down south where the developer would not fix $100k in construction defects that were obviously his responsibility. That was two years ago. Now we calculate the total legal fees to be well in excess of that… and still going. In a meeting, the developer actually provided me an answer for the question: “why do we pay attorneys when there is a cheaper solution?” He said he did not have any time to deal with us.
I think the reason that NewPath would turn toward a legal remedy is an internal time-cost-benefit analysis… they would likely go out of business spending time trying to mediate a solution that enough in Davis would support. The difference between the cable company issue and this one is that the NIMBYs do not want these poles installed. So, NewPath management would spend copious time on it only to come away empty handed. Remember the Verizon cell tower proposal for the high school?
The bottom line here folks if that this entire episode of NewPath versus Davis should never have happened. I think that we all can agree on that. I agree completely with Jim Watson on all of his points.
On the financial end of this, the question is do we want to continue paying a planning director $166,000 annual with benefits to continue to divide the community and to continue with bad planning decisions to put the city in harms way?
Hess clearly can not handle the job as Director of Community Development and her position needs to be replaced by new talent from outside the city, who is capable of the job. Otherwise, these disasters will continue, and it will continue to cost US, the residents, to pay the disaster bill (which never should have happened) and to live with the fallout. Recall that Hess cost the city millions of dollars, monies lost due to her gross mismanagement of our affordable housing program which she was fired from before she was made director of Community Planning! What was the City thinking making her director?
Jim nailed it as usual. David, please keep shining a light on this issue as well as the long and varied history of Hess-generated snafus at CDD. This situation cannot continue.
Jeff: I wonder how long we all can suffer the lower tax receipts that result from the protection.
If a city is going to add 150,000 sq. ft. of retail, and sales tax revenue is the prime consideration, then the city of Davis has by far the most effective strategy: a mix of smaller chains and locally-owned stores, near existing residential neighborhoods.
For example: the combination of a pet store, a sporting good store, a furniture store, and a discount clothing retailer such as Ross would add up to about 135 – 150,000 sq. ft. — about the size of the new Target. That combination would yield significantly more sales tax than a Target or Wal-Mart store of the same total square footage — as much as 20 – 100% more sales tax.
A mixed neighborhood shopping center produces higher sales tax per square foot than a big box retailer of the same size. It can be more targeted (pun intended) to provide the retail goods that are lacking elsewhere in the city. With a grocery anchor, and located on a main corridor, it will be a success. If the city of Davis had zoned a Marketplace-style shopping center where Target is located, it would have made more money for the city and had less impact on existing retailers.
Back to the topic at hand: I think the reason that NewPath would turn toward a legal remedy is an internal time-cost-benefit analysis.
Yes, so I’m not real concerned about whether the city of Davis makes an effort to encourage businesses of that type. Surely there are other contractors out there that provide this infrastructure who would be willing to bid on it.
I agree with time for a change and Jim. Someone on staff should take the responsibility for this debacle. All signs point to Hess and Emlen. Instead we have buck passing. We pay our staff exceedingly well and we should hold them to a high standard.
I’m sick of highly paid staff ignoting what is best for Davis.
I disagree that Davis is not unique in our agitation over what are, in most other California communities, typical commercial developments.
A lot of folks in Winters don’t want a Burger King to open up. Apparently it would be the first fast food place there. I don’t think Winters even has a Target.
I would still like to know why the city did not publically disclose the lawsuit during the Feb 2nd city council meeting.
Sue: As a sitting member of the council, perhaps you could weigh in and tell us when you were first made aware of the lawsuit. Were you notified by staff, or did you find out through unofficial channels (like the Davis Vanguard)?
I’m beginning to wonder if we shouldn’t rename CDD to CYA.
Jim Watson:
Do you know if Bill Emlen was “in the loop” on the decision to throw out your neighborhood agreement? I’m wondering if Hess is a rogue player that keeps Emlen dumb and happy, or if Emlen is using Hess as a lighning rod?
I just got home to find this article which really makes clear that our biggest problem at City Hall is our Director of Community Development. In response to Dexter, here a just a few of Hess’s planning catastrophe’s just for this past year.
1) On the Chile’s Ranch (Simmons Property) issue. Hess blatantly disregarded a Memorandum of Understanding between the neighbors and the developers to significantly increase the number of units despite outcry by the neighbors.
2) On the recent Wildhorse Ranch (Measure P) development proposed, where where Hess backed up a poorly, planned over densified development on ag land ignoring the neighbors concerns. She also refused to bring the project through commissions other than Planning Commission even though the developer was receptive to having the project looked at by other commissions.
3) Hess backed broad siding the Lewis homes Hunt Wesson project that was supported by the community after FIVE years of planning and THEN last minute demands that the site had to have two EIR’s, one for an infeasible 100 acre high tech park in the middle of neighborhoods and as well as some other iteration for a mixed use project. Hess never followed Council directive to have staff participate in the five community outreach meetings that the developers had to organize because she effectively “dropped the ball”.
4) On the massive signage issue of putting three way rotating louver highway signs on I-80 in Davis, despite citizen objection, Hess forged forward with a recommendation for these two huge ugly signs where the city would get NO revenue but just made to look like Vacaville along I-80.
5) On the recent Willowbank Park project issue, Hess backed ignoring the Fish and Game 50 foot riparian buffer requirement. She then supported a badly planned project removing with reduced open space and trying to “offsite” the projects drainage problems.
6) On the Montessori school noise exemption issue. Hess had done nothing to resolve the noise issues with the East Davis Montessori school issue despite direction given to her by Council years ago to get the noise mitigation’s implemented recommended by a noise consultant. Instead, she tries to change the entire noise ordinance to exempt schools. When asked why the ordinance change? Hess admitted that the city would not longer need to respond to the noise issues regarding the Montessori site (or other school sites).
7) Hess initially OPPOSED the Carlton Plaza senior housing complex for assisted living on Fifth Street for ridiculous reasons. Thanks to enormous citizen pressure it did get passed by Council recently.
8) And now, Hess gave permits to NewPath to put 37 cell towers anywhere they want, she did NOT inform Davis residents (especially those impacted), did not inform the City Manager, did NOT inform City Council but simply allowed NewPath the 37 permits. I also notice her lack of integrity to take responsibility and attempt to deflect blame to other city workers. Now the city is being sued and we get to pay for it one way or the other.
I agree that to prevent more planning wrecks we need new planning department leadership by recruiting a new Director of Community Development. I also agree that it needs to be a new recruit from outside City Hall who can to work with the citizens and in their best interests, rather than prioritizing the developers and other special interests. It is time to fire Hess before she does any more damage to our community.
Many excellent comments and well-documented arguments have been made that Hess should resign or be fired. And, how can we have a City Manager, Emlen, who doesn’t seem to know what the head of one of the most important departments of the city is doing? Shouldn’t there be a process in place for approval of such an important city contract?
Also who can answer for me:
1. If Hess has a tower on her property, isn’t this a conflict of interest when she signed-off on the New Path project since she would gain financially?
2. What will the income be to the city, which, I presume, leases the land to New Path where towers are built? Was this seen as a way to bring income to the city?
3. New Path’s challenge to a democratically-passed ordinance to protect property, health, and more, is just one more example of how corporations ride rough-shod over the rights of people and their communities. I would bet that if the permits had been first denied, New Path would have launched a court challenge.
Never have so many slammed so few with so little regard to facts. This place has turned into a bash Hess-fest. If you *really* must just vent, ask the owners of this saloon to start putting up an “open thread”. Otherwise it’s going to turn into an ever-accelerating flame war. Having witnessed those in other places, I’d suggest it’s better to just delete non-responsive, off-topic comments (again, including this one).
I see a lot pf apologists for Hess and Emlen here. Perhaps their cronies are trying to save their high paid jobs. It is ironic some are arguing that Davis is anti-business. Hess is about as pro-development as she can be, This is not an ideological issue (are you a libertarian, a progressive or whatever).
THis is a competence issue.
First we are being sued and our City manager is playing duck and cover. Someone please take responsibility here and lets not let this happen again. All of the signs point to Hess who is more concerned with keeping her six figure salary than with the welfare of Davis.
For the record I am not anti-business, but the purpose of a planning dept is to set rules that are fair to all, but particularly are consistent with Davis’ values, which may not be the same as Woodland’s. I see nothing in this whole fiasco that show our City Hall in a good light. If Hess is responsible for yet another fiasco she needs to go.
It could turn into a flame war if people keep using terms such as cronies and apologists. Please discuss the issues and avoid personal characterizations.
How do we hope for any real change in the CC and City Staff levels if we do not have more independent, non-developer, non firefighter labor union sponsored candidates out there to run? Emlen and Hess are hugely supported by the current Saylor-Souza-Asmundson triumvirate and will continue to be if Asmundson is replaced by her junior clone Vergis; so I say to slowgrowther, timeforachange, you really want to get rid of Hess, then spend your energies in trying to convince some true “slow-growth” people to run for City Council!
A lot of folks in Winters don’t want a Burger King to open up
Winters is an interesting little town. The downtown developed nicely over the last decade and improved its charm. But, I think this had more to do with the popularity of the Buckhorn Restaurant, than anything the city planners did. Two points though… Burger King is not big-box, and Winters is not in the same population-size class as Davis.
I created a list of CA cities by population and I cannot find one close to our population that has so few shopping services.
Even Santa Cruz has a Home Depot.
We appear to be alone in our disdain for developing modern conveniences to the point of great contradiction. Maybe there is an ultra-progressive vision here that I have not yet grasped. If the vision includes growing more of our own food, then why are so many of the lots tiny and surrounded by sun-blocking two or three-story structures? If the vision is that we walk and bike to the store, then why did it take years to open Delanos market? If the vision is more village-landscaping, then how do we deliver technology services to support our university and our hyper information-seeking population? If the vision is family-friendly, then how do we support greater shopping time requirements over greater family time availability?
I too am proud of the town I live in and want to keep it nice, but we are not some European vacation destination. We are a small California city filled with busy families that need to buy things quickly and efficiently so we have more time to do other things we value and enjoy. We also need the tax revenue.
Our downtown needs to be a focal point for city planning, but the downtown merchants should not be some special protected commercial welfare class. Competition is a good thing. Smaller stores can compete on service. Those that cannot should be replaced with those that do. Big-box is not some evil threat to our quality of life. If planned objectively and developed smartly, in a city the size of Davis, a few big-box stores can enhance the overall quality of life for the general population.
Greg:
You raise some really interesting points. So how about you running? You obviously care a great deal about Davis and you sure seem have what it takes to run. I would vote for you in a heartbeat!
Meanwhile, the city is burning down with Hess at the helm of the planning department and she needs to be fired before she costs us more financially and to prevent any more planning disasters.
“Neutral” wrote: “Never have so many slammed so few with so little regard to facts.”
Don: This is the provocation. The cronies and apologists comment is just a response. Chill out.
“Neutral”: Your defense of the staff is becoming increasingly shrill. If you don’t like tone of the discussion, post some real facts (like the case information you posted earlier). Most of what you post is opinion. Until we have substantive information on timelines, the decision making process, the information blackout, the chain-of-command breakdown, etc., the commentary is going to remain speculative and primarily focused on Hess and Emlen.
Thanks timeforchange for the endorsement, but as I have previously responded to Matt Williams in another blog thread, I don’t have the time in my hectic work schedule to be a City Council member…that said, I am willing and able to help with the campaigns of good candidates…I still have an extensive e-mail list from the No on P campaign, and I’m sure all those folks are against Hess’ policies and the current trends of our CC (and possible future CC with Vergis)…..in the meantime, Hess and Emlen will continue to send this city into financial ruin, unless we get a mayor/council members who serious about looking at ending their terms!
Greg: I think your assessment of the support from the Saylor-Souza-Asmundson triumvirate is overly pessimistic and polarizing. Management of the city should not be approached as an us-vs-them proposition. I suspect it is more of an inertia problem. It is disruptive hard work to make significant senior management changes; and it usually doesn’t happen until the situation gets critical (especially with low performance council members — who are primarliy reactive rather than proactive — running the show). Perhaps this NewPath snafu will be the tipping point. In light of the lawsuit, the fact that the City Council and City Manager were kept out of the loop on a significant project that was obviously going to be controversial is a serious matter demanding a serious response.
Norm: Your defense of the staff is becoming increasingly shrill. . . the commentary is going to remain speculative and primarily focused on Hess and Emlen.
Shrill? I think not, even though I consider commenters here attacking “staff” are *at best* ill-informed. The nature of the work dictated that the “11 month plan review” took place at Public Works, Public Works issued the permits, and Public Works would have performed the inspections. Yet comments in *all* of the “NewPath” commentaries attack “Hess”, whose department has no jurisdiction over the City’s infrastructure.
Those are the *facts* underlying my obvious irritation.
“Neutral”: Your claim that CDD had no involvement is opinion rather than fact.
(1) Do you assert that Hess was not in the loop along with Emlen?
(2) Are you claiming that sole responsibility for the problem lies with PW?
(3) Do you think that lower level staff should take the blame, or does responsibility ultimately rest with the senior management?
(4) Should we turn our attention on the director of PW?
You have still failed to post a single fact that suggests that you have any special insight into what happened.
Here are some facts:
The 11 month review was not “continuous”. It was not like anyone was spending 3-4 hours a week on these issues, particularly on the “front end”
PW would not make the determination as to whether the system proposed fell under the provision of cell tower/telecommunication ordinances, or not. The determination that it was not, occurred prior to
and submittals/applications for encroachment permits.
PW worked with New Path as to construction methods for conduits, etc., precise location of facilities, and was the only department that reviewed the precise plans (except electrical connections… that was a separate set of permits from Building Inspection) and was the entity that actually issued the encroachment permits.
Now, an opinion… I suspect some of the posters have an agenda other than whether New Path comes to town, and/or where their poles are located.
Reminds me of a hot discussion at meetings years ago, where people argued they were aggrieved by the severe traffic problems they’d have near their homes if a 6-8 bed battered women’s shelter was located in their neighborhood. Yeah, right. Think maybe, just maybe, the real issue was that they didn’t want ‘those people’ near them?
“I suspect some of the posters have an agenda other than whether New Path comes to town, and/or where their poles are located”
hpierce: I have to say, your analogy is a little offensive. I think it’s pretty obvious that NewPath is an issue for some of us because (1) it has resulted in a lawsuit, and (2) we want to know why and how the city screwed this up so badly. What you’ve done is constructed a self-serving frame of the issue so that you can take a cheap shot analogizing critics of the city staff with NIMBYs that don’t want battered women near their houses. Shame on you.
I said “some” posters. If the analogy doesn’t fit for all, then perhaps it was not meant to apply to them.
It is important to make sure that processes procedures are or will be in place so that an entity that is not a bonafide utility does not advance so far under false colors. We also need to look at and likely revise our existing ordinances to make sure that they are compliant with current federal and state requirements, lest we be sued when we doenforce them. In this case, as I’ve understood it from what I’ve heard & read, their system could NOT be built as they envisioned under the current ordinance. Perhaps that’s why they sued INSTEAD of reapplying under those ordinances (it would have been easier/cheaper for them to reapply). To cut to the chase, I believe that we would be in a lawsuit in any event.
An important point being overlooked is that clearly the Director for Community Development Catherine Hess did not even understand our own ordinance and allowed the permits to be issued. There is a huge integrity problem here concerning Hess. She has clearly tried to blame “lower level staff” for this when she authorized the permits. Also, Hess lied to NewPath by telling them that she was keeping the City Manager informed on their meetings for the 11 months (as quoted in the Vanguard article above).
“After eleven (11) months of interacting with these City representatives, during which the City represented to New Path that the City Manager was being consulted by the Director of Community Development regarding NewPath’s DAS as well as the permitting process that the City wanted NewPath to follow, the City granted the Permits and authorized to proceed with construction of the DAS.”
Since City Manager Bill Emlen reported to the Enterprise that he was not informed about this issue (and this type of lack of communication from Hess to Emlen has happened before). Hess is obviously trying to deflect the blame to Public Works and “lower level staff” and maybe even ultimately to Emlen.
Meanwhile already has one law suit it is dealing with and now another. I wonder what this does to our City’s rates for any insurance for the years that it will cost us to resolve this one as well? Also, what does this do for our city’s rating for loans, bonds, etc? Any increases in those costs will be coming out of our pockets and we already have major financial issues.
hpierce: The cheap shot was unwarranted regardless of who it was directed at.
Regarding your claim that a lawsuit was inevitable … that is pure supposition. A more likely explaination is that they are suing to recover the $1M plus they claim to have already invested in the Davis project. Had they not been given what they interpreted to be a green light, I doubt if they would have tried to penetrate the Davis Market — there are plenty of other cities where they could have gone to do business.
Which raises the obvious question of how all this happened without the knowledge of the City Council and City Manager. The argument that Hess, Steiner, Emlen, and the Council were all kept in the dark by “low level” (their words) staff people defies credibility.
I live near where one of these installations was approved. At the same time two separate proposals for radio and cellular transmission facilities in this same vicinity are making their way through Yolo County govt entities. 3 separate facilities within a roughly 3/4 mi. radius? That’s one more thing about this misuse/absence of *process* that is disturbing…a redundancy of facilities, caught by no one because the CDD Director was acting on her own. Totally unacceptable.
BTW, at least the County sends notices to adjacent property owners.
David… have you read the complaints? I believe that you requested them as a public record, and I understand that they were supplied? is this the case?
I have read the complaints. They have been supplied to me by the City Attorney. My understanding is that they will be posted on the city’s website in some form or another. When they are, I will link to them.
Is there a particular question that you have about their contents?
I will also add this point, given the fact this is now a live lawsuit, the city is going to be less forthcoming with information. This is unfortunate but also understandable.
There is also some question as to whether YCPARMIA will cover this suit, apparently it does not cover breech of contract for instance, although that is not directly alleged in the complaint.
Norm… I made no “claim” that a lawsuit was inevitable. I said it was my belief… am I not allowed to have these unless I can justify them to you? You imply that we would NOT be in a lawsuit had the permits been not issued… do you apply the same rigor to your ‘claim’ (you said you doubt if they would have persisted had they not gotten the green light) that you demand of me? I can point to facts where they sued an agency who refused to issue permits. Can you point to facts where they went away when rebuffed?
hpierce: I think at the point at which the permits were rescinded, a law suit was inevitable.
I also think having read the suit, that had they not permitted the permits (excuse my verbiage), they would have been sued as well. NewPath alleges that they as a PUC were entitled to build the cell towers and Davis had no right to stop them.
hpierce: An outrageous cheap shot and now quibbling over semantics? A simple apology would suffice.
“I also think having read the suit, that had they not permitted the permits (excuse my verbiage), they would have been sued as well.”
David: What is the basis for this conclusion? It makes no sense from a business perspective. Why would they chose to force their way into Davis by way of litigation when they are serving a market that is no where close to saturated?
In my opinion, they are suing because they have already invested significant capital in the Davis project. The PUC entitlement is just the legal rationale.
As I said, based on their arguments in the complaint, they believe they were entitled to build this project regardless of what the city did. They have already sued at least one other city that refused to allow them to build.
David: I would guess that they also invested significant capital in the Irvine project before the process devolved into litigation.
I just don’t know enough about Irvine to speculate. However, based on the arguments put forth in the complaint, I think the city of Davis is sued at any point that they would have tried to deny NewPath.
Neutral said: “The nature of the work dictated that the “11 month plan review” took place at Public Works, Public Works issued the permits….”
If the above is factual, it certainly fits well with my observations here in Davis for the past quarter of a century. IMO, the “culture” of the Davis Public Works leadership has been that the Davis citizenry is often a bothersome obstacle that needs to be circumvented.
Davisite 2
Keep in mind that it was Community Planning Director Catherine Hess who authorized the permits, not Public Works. Also, it was Hess who negotiated with NewPath for eleven months and did not tell inform the City Manager about her unilateral decision to authorize the permits. Again, the most astonishing information in the Vanguard article above is that Hess did not inform the City Manager of her actions. This is reason enough for her to be fired in addition to bringing on a law suit to the City that should never have happened.
“After eleven (11) months of interacting with these City representatives, during which the City represented to New Path that the City Manager was being consulted by the Director of Community Development regarding NewPath’s DAS as well as the permitting process that the City wanted NewPath to follow, the City granted the Permits and authorized to proceed with construction of the DAS.”
“during which the City represented to New Path that the City Manager was being consulted by the Director of Community Development”
timeforachange: So it all comes down to who is lying … NewPath, the Director of Community Development, and/or the City Manager.
Cheap shot, Norm? What would that have been? Quibbling over semantics? I offer facts… David, who has read the complaints, comes to the same opinion that I have… offer your facts to be credible…
Everyone should be clear… PW authorized the Encroachment Permits, Building Division would have issued the electrical permits… the issue is what New Path represented, how they represented it, and whether they are or are not subject to the city’s telecom/cell tower ordinances… staff’s response would be based on New Path’s representations, and staff’s abilility to determine if those representations were legitimate… would any of you been able to do so given the facts? If so, apply for a city position…
But hpierce, where I disagree with you, is that the city was involved in talks with NewPath for 11 months without the city manager knowing? The decision was apparently communicated to public works by Bob Clarke and Mike Webb. Neither of those guys are decisionmakers which puts the decision up at the department head level–Hess and Weir. From what I understand, Planning made the call to go ahead without consulting council or Emlen.
hpierce: It was neither a cheap shot nor a semantic dodge, but rather a simple statement of fact. There are two conflicting stories, and one or more of the parties involved is not telling the truth (AKA lying). And in regards to your attack on my credibility … you were the one analogizing critics of the city staff with NIMBYs that don’t want battered women near their houses, and I called you on what I felt was an offensive cheap shot. Own it … and move on.
David: Planning made the call to go ahead without consulting council or Emlen.
That would be standard procedure once the decision was made that the ordinance did not apply. In the packet, NewPath states they notified the “head of IT/Telecom” of their intent to file, which is a logical choice for a CLEC (Competitive Local Exchange Carrier).
I think it’s important to remember that good management policy is to have decisions made at the lowest responsible level. Another way of saying that “Principal Planner(s)” are professionals in their field, and last I checked perfectly capable of, and *required to* make the type of decisions made here.
Like I keep trying to get across: this entire episode resulted from *one* irate homeowner in the Village. That highly publicized incident back in November resulted in an attempt by the vendor and the City to resolve the issue with the homeowners. But according to the appeal documents, a group of homeowners actually prevented a survey team from so much as setting up a transit – which is an actionable offense.
My read is that they had gone beyond reason, they were (by God!!) going to fight City Hall, and that, like some of the posters here, ensure that someone’s head would roll. Fatal error, but one common when emotion runs rampant over reason. All downhill from there.
From my perspective the failure is one of political interference in a process that should have been allowed to run it’s course. The remedy for the contested sites was negotiated relocation and/or changes in design, not blanket revocation of the permits.
Neutral: I understand your position. It sounds reasonable, but you do not address two key issues.
(1) Emlen says that he was not informed, NewPath says that Hess represented to them that he was. One or more of these three parties is not telling the truth. If it turns out to be Emlen and/or Hess, would you then concede that “someone’s head should role?”
(2) You do not address the issue of accountability, particularly if the matter continues to devolve. Should we just adopt the attitude that s**t happens and move on? Is there some threshold of monetary cost to the city at which there should be some accountability? Is there [u]any[/u] circumstance in which you would support such things as management change, disciplinary action, termination of service, etc. over the current status quo?
[quote]Like I keep trying to get across: this entire episode resulted from *one* irate homeowner in the Village. That highly publicized incident back in November resulted in an attempt by the vendor and the City to resolve the issue with the homeowners. But according to the appeal documents, a group of homeowners actually prevented a survey team from so much as setting up a transit – which is an actionable offense.
[/quote]
Interesting. I have not read the appeal documents, and wont be reading them. I’m not one calling for anyone to be canned.
But if homeowners were preventing the City and NewPath from working to correct the situation, then how is it that NewPath violated the conditions of its encroachment permit – to work with affected homeowners.
I think NewPath is trying to open up all California for easy cell phone tower installation. Davis is being used. The director of Community Development should have been open to this possibility and denied NewPath its application request in the first place. Also, common sense and an understanding of the history of Davis as regards cell phone installation should have caused her to say ‘no’. More explanation of her behavior seems to be in order. What happened?
“…which puts the decision up at the department head level–Hess and Weir.”
Anyone who has watched Weir “operate” when presenting at Council meetings cannot help but be struck by his apparent pique with Council’s “interference” and Davis citizen input as well as his “stonewalling” when publicly pressed for answers to critical questions. This was clearly demonstrated in the course of his presentations to the Council concerning the surface water proposal.
“If the above is factual, it certainly fits well with my observations here in Davis for the past quarter of a century. IMO, the “culture” of the Davis Public Works leadership has been that the Davis citizenry is often a bothersome obstacle that needs to be circumvented.”
Bob Weir was extremely good about publicizing the water/sewer issue from its inception. He came to the Davis Senior Citizens Commission (DSCC) upon request some years ago. He also continued to give the DSCC updates on what he was doing. And the DSCC asked lots of very tough questions.
Together he and the DSCC have pushed to keep this issue in the public eye. It was in the papers; mailers were sent out about it on a regular basis. Bob Weir took a good deal of criticism about the issue (some of it from me) with extremely good grace.
Not once did I ever get the impression that Bob Weir thought public input was wearisome. He may not have agreed with some of the criticisms, or may not have agreed with some of the views of the water experts brought in at the last minute. But he always acted as a consummate professional.
After all that has been posted on this issue it is exceedingly clear that Hess authorized the permits.
Here is what she is quoted as saying as a result of the question of how did this happen and responsibility:
“…Hess said it was not clear at the time the permits were issued — which happened in batches since early this year — that they should be subject to the city’s telecommunications ordinance.”
“It was just a confusing situation,” she said. “This was not the way it should have happened and it’s not what we like to see. Hindsight is always so much clearer.”
What is clear is that Hess is responsible and trying to deflect the blame to “lower lever” staff and other departments.
Just so everyone knows: NewPath has sued or is suing other cities in California and other states regarding the placement of its towers. Its position is that it is entitled by state and federal law to place its facilities on poles, regardless of the effects on neighborhood aesthetics or property values. It argues that local zoning ordinances governing cell towers do not apply to it because it is not itself a cell service provider. So there is a very good chance Davis would have been sued no matter what course had been taken.
A California court recently rejected NewPath’s claim that the City of Irvine had violated California and federal law by denying it a permit.
jveaton wrote: “Just so everyone knows: NewPath has sued or is suing other cities in California and other states regarding the placement of its towers.”
Could you please post the names of the other cities that are being sued or that have been threatened with suits?
Your claim that Davis would have been sued no matter what, presupposes that NewPath has sued other jurisdictions prior to their expenditure of significant funds. I have not been able to find an evidence of this, and your list would be helpful to the discussion.
An alternate conclusion, which I find much more credible, is that NewPath is suing because they spent in excess of $1M on the Davis project based on (1) representations from the head of the CDD that they were clear to proceed and that the City Manager had signed off on the project, and (2) a green light from CDD to PW authorizing them to cooperate with NewPath to advance the process.
IMO opinion it was only inevitable because CDD chose to get in bed with a company that was suing another community to force access once confronted with a public backlash. The decision maker(s) either didn’t care about this data point, or were not able to make a simple extrapolation. Had NewPath been appropriately vetted by CDD when they showed up at the gate, I believe they would not have received the signals that they did, and would have consequently expended their limited capital on projects elsewhere.
So there is a very good chance Davis would have been sued no matter what course had been taken.
Except for trial lawyers and environmental groups, I am not aware of any private business choosing law suits as a business strategy. California civil litigation is way too time consuming and expensive and generally only benefits the attorneys at the expense of both plaintiff and defendant. Business sues when there is an opportunity for financial recovery exceeding the costs. The fact that NewPath would sue at all should be considered a bad sign for the city; because it means they have a strong opinion they would prevail.
Jeff: Well said. I’m not sure I completely agree with the last point, however. For NewPath, $1M is a non-trivial amount of money and one of their primary motivations to sue may be to save face with their investors (i.e. they may be less than certain of the outcome). But I completely agree with the point that their business model is not to force their way into new markets via litigation. I suppose they could also be posturing … trying to force a favorable outcome by threatening a city with budget problems.