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.