In November it was suddenly discovered that the city had issued 37 permits in the city of Davis allowing NewPath to construct a telecommunications network in the city. However, when residents caught wind of this, it was discovered that the permits were improperly issued based on the city’s Wireless Telecommunications Facilities Ordinance.
City Manager Bill Emlen and the City Council appeared to be caught unaware by these developments, but the City Manager quickly issued a stop work notice and revoked the Permits. NewPath appealed that decision, but the City Council on January 19, 2010 denied the appeal and upheld Mr. Emlen’s decision. NewPath as we reported a few weeks ago has filed a lawsuit against the City of Davis including a motion for a preliminary injunction.
“NewPath seeks an order from the Court cancelling the revocation, reinstating the Permits, and declaring the stop work notice null and void. This motion is made pursuant to the Court’s diversity jurisdiction under 42 U.S.C. § 1332 on grounds that the parties are citizens of different states and the amount in controversy exceeds $75,000. The City’s actions are contrary to and preempted by state and federal law and immediate and irreparable injury will result to NewPath unless the activities described above are enjoined pending trial of this action.”
The City counters:
“NewPath’s system is currently estimated at less than 15% percent constructed and was commenced under invalidly issued permits. NewPath can not show a strong likelihood of success on the merits, nor can it show a severe hardship to warrant granting NewPath substantially all of the relief it seeks before the lawsuit is tried. Rather, granting the requested mandatory preliminary relief would be a severe hardship to the City and to its citizens and would be contrary to the public interest.”
On Monday, the Motion of Preliminary Injunction was heard in Federal Court in Sacramento before Judge Garland Burrell.
In opening arguments by Robert Jystad representing the Plaintiff’s, he argued that the City is trying to say that NewPath mislead them, that NewPath has “unclean hands,” and that there is validity in claiming irreparable harm from the rescission of the encroachment permits and not being able to proceed with project.
He argued that NewPath had negotiated in good faith, thought they had gone through the proper channels in obtaining the encroachment permits. NewPath does not see how top City officials could not have known about the matter, and believes it should be clear that NewPath is exempt from City ordinances.
He said that, in proof for the injunction, NewPath is being harmed by not being able to proceed. This is a highly-competitive market (representing wireless carriers) and NewPath cannot proceed in the industry with a damaged reputation or failure to produce the facilities. There is also direct economic harm, because NP had the expectations of income from the Davis project, and has already invested more than $1.5M.
Their central argument appears to be that they are exempt from the ordinance because there is no “escape clause” from the ordinance and therefore under the provisions of the ordinance there is no place that they could build.
Davis City Attorney Harriet Steiner countered that she had issues with practically everything that NewPath just said. She argued that NewPath had convinced staff that they were exempt from the City’s ordinances and that staff had no authority to issue invalid permits. NewPath, she argued, should have known that as they have dealt with many cities. NewPath cannot base rights on invalid permits.
As soon as City management heard about the matter, they pulled the permits. She argued that NewPath did not get the “notice to proceed” from the state until November 25, the day before Thanksgiving, and City issued “stop work notice” on the very next business day, Monday November 30.
She said that NewPath wants an injunction to be able to proceed without considering all the problems. She said that the City rescinded all the permits because they said that their system requires that fibers go to all the poles and it is not the fibers that the City objects to, it is the poles.
According to Ms. Steiner’s argument, Federal law preserves local zoning authority, so the burden is on the provider to prove their case, and it is a very fact-specific process. SHe claims that they have not shown why all these towers have to be exactly where they want. The City requests that they reapply, to show their facts and make their points. However, NewPath immediately filed suit rather than attempting to come to an agreement with the city.
Finally Ms. Steiner argued that NewPath cannot show that City ordinance is preempted by state or federal laws, nor cannot show ignorance of the true facts and it cannot rely upon state’s notice to proceed which the City did not even receive in a timely fashion. NewPath does not have a “vested right” to proceed.
NewPath countered that there was no argument about the permits being invalid, however Mr. Jystad argued that NewPath did not railroad the city. He argued that there were many months of talks with the City’s engineers. They claim the City Staff said they would rather have new poles than mounting on existing poles, and even asked where do you want them? The City even recommended locations for the poles.
He argued that they met not only with public works, but with the Director of Community Development, who went on a walk through on the Village Homes site.
The problem he argued is that things became politicized when residents found out and went to the City to complain. The city got caught in an embarrassing position and attempted to rationalize the breach.
He argued that it did not matter if the city had time, place, and manner authority because they are exempt from the ordinance since the ordinance only says what cannot be done.
The bottom line in this dispute is that city is arguing that it is entitled to time, place, and manner authority over where the cell towers go. NewPath is arguing that it is exempt from the ordinance since the ordinance grants them no exemption by which they could build their towers which necessarily must be above ground.
NewPath is arguing irreparable harm under the strange notion that they have already spent money (which they would obviously recoup if they completed their network) and that it is unfair for NewPath to have to spend additional money to go back and re-apply. Their lawyer argued that the “time/place/manner” authority must be reasonable, and it is not fair to exclude NP from 80% of the city.
Apparently the large amount of money that they will spend on litigation is okay, however.
What is interesting here is that they argue they have spent $1.5 million already. The City asks how this is possible given the fact that they did not get a notice to proceed until November 25, the day before Thanksgiving and the city issued a stop work order the following business day. The City claims that they started work before they even had proper permits.
At this point, I do not see that NewPath has a case for irreparable harm or any kind of notion that they are likely to succeed in further legal proceedings that would allow for them to get any kind of a preliminary injunction before a finding of facts in a trial.
How We Got Here – Mistakes by City Staff
NewPath is not buying that, arguing that they cannot believe that the city manager did not know. Here is what we now know and these basic facts seem to not be in dispute.
The encroachment permits were issued by public works at a relatively low level. However, those followed months of talks apparently between Bob Clarke who is now acting Public Works Director but at that time worked under Bob Weir and Mike Webb, a principal planner, who works under the Community Development Director Katherine Hess. Apparently Ms. Hess had to know a good deal about this since she was even involved in a walk through.
NewPath in trial claimed that City Manager Bill Emlen refused to meet with them after he issued the stop work notice. This was confirmed, however, the reason was that the city did not want to create an opportunity for additional claims by NewPath and therefore put all future communications between the city and NewPath in public hearings so as to avoid a he said/ she said conundrum.
It would seem odd that staff members would not at least get some authorization from above or at least clarify the situation. We can follow it up the food chain and we know the city had meetings and discussions as to how to proceed as high as Mike Webb and Bob Clarke, and therefore probably higher. Would the Community Development Director really not discuss the matter with the City Manager despite months of meetings that both sides acknowledge took place? From the city’s own operational standpoint, that needs to be answered.
From the standpoint of litigation, the city is resting on their interpretation of the city’s ordinance and what they believe is a right to decide the time, place, and manner of where cell towers go in the city.
Judge Burrell’s decision on this portion of the suit is due within 30 days. It is our expectation that he will deny the preliminary injunction, there does not appear to be anything even resembling irreparable harm here. NewPath can resume construction if they reach an agreement with the city or if they win in litigation.
—David M. Greenwald reporting
I’m curious about the juxtaposition of this story and the effort by some in Davis (myself included) to bring Google gigabit fiber Internet connectivity to Davis. Anyone know whether they will be putting the fiber underground or whether it will require putting poles around the city?
David. Great article. Thanks.
It seems to me that the key issue is whether or not Hess informed Emlen.
Emlen claims she didn’t — NewPath claims she did.
Unfortunately, in the absence of any evidence to the contrary, I would have to agree with NewPath. It simply defies credibility to suggest that Hess kept Emlen out of the loop.
The more this unfolds, the less I believe Emlen. If he was truly kept in the dark, his appropriate response as City Manager would have been to terminate Hess. The fact that he didn’t, suggests to me that he is either (1) an ineffective manager, or (2) he and Hess are not telling the truth.
In either case, it is time for both Emlen and Hess to be replaced.
Why do we keep referring to these as “cell towers” and not “service poles”. Which label is more accurate?
Because that’s what it was referred to originally. Most accurate would be 42 foot tall poles and antennas.
Most accurate would be 42 foot tall poles and antennas.
How about we get progressive doing the right thing and call them “service poles”, since “tower” is a misnomer and more inflammatory.
On a somewhat related note… At a time when the nation needs more jobs, how can we feel good about blocking the work this company would otherwise be hiring workers to do? Also, saddling the company with litigation expense means less financial resources for business expansion which would lead to more jobs.
See the following. It is very sobering:
http://cohort11.americanobserver.net/latoyaegwuekwe/multimediafinal.html
I have no problem with this company doing work as long as they go through the proper procedures and do it honestly.
Harriet Steiner made a good point yesterday, NewPath does not provide service, they only cell the infrastructure to companies like ATT, Verizon, Sprint, etc. Now they are arguing there is a coverage gap. That’s an interesting argument, but as she pointed out, if there really was a coverage gap, wouldn’t those companies be trying to fill that coverage gap? They certainly don’t need NewPath to add infrastructure for them. This whole things smells like a kind of high-tech ponzi scheme.
Out in west and north-west Davis there is a history of very poor cell coverage and limited broadband services. Also, 4G networks are here (Sprint, I think is the first selling this in some markets), and Davis lacks the cell infrastructure to support it.
I’m not sure about NewPath’s contract relationship with the big carriers, but there is precedent for infrastructure build out to be outsourced to niche players that specialize in the work.
I was reading a good article yesterday about why an FDR-style New Deal public works job project would not work this day and age… primarily because of the type of reaction we are experiencing for this simple installation of 43′ service poles.
“…limited broadband services…”
Maybe Winters Broadband could expand a bit; they’re nearly there already.
http://www.winters-broadband.com/svcarea.htm
So now we find out the bottom line that Community Planning Director Katherine Hess not only knew about and authorized the permits “erroneously” but now we find out that she even did a walk through in Village Homes where this whole issue came to a head.
I agree with Norm’s comments and furthermore since Hess’ incompetence has caused the City an expensive lawsuit which now is complicated with an injunction, she has GOT to be fired. if Emlen will not fire her then he is clearly part of a cover-up and needs to be fired also. With our City facing major financial issues already we can not afford this kind of incompetence in its management. The biggest insult is that we are paying Hess around $166,000 per year for her long lineage of screw-ups which involve bad planning decisions and now costing US the citizens with this lawsuit among other problems she has caused the city.
Hess needs to be fired NOW.
I find it ironic that we residents find out what happened and when FROM THE LAWSUIT rather than from staff coming clean and examining the flawed process. Although the lawsuit is stating the alleged truth from NewPath etc at least it us something. Seems we haven’t been able to shed any sunlight on it otherwise does it?
SODA: we residents find out what happened and when FROM THE LAWSUIT rather than from staff
‘We’ residents had no interest whatsoever in discovering what the actual facts of the case were, preferring instead to blame Staff from the beginning. It is an incident that will ultimately cost *all* parties far more than any expected, and enrich only two: plaintiff and defendant law firms. For that you can thank our august City Council for engaging in rank political gamesmanship instead of looking for resolution, and the patently pathetic common sense failure (in the first instance), and the crocodile-tear-lawsuit (post-recission) by NewPath.
Reminds me alot of the cat in the tree: they got themselves up there, they can bloody well get themselves down. The rest of us will just have to wait and wonder how much it will cost.
“‘We’ residents had no interest whatsoever in discovering what the actual facts of the case were, preferring instead to blame Staff from the beginning.”
Neutral: Speak for yourself. I personally want to know what the facts are. In addition, see no problem with speculating given the current information blackout. If you have some legitimate facts to share, please illuminate us.
“I find it ironic that we residents find out what happened and when FROM THE LAWSUIT rather than from staff coming clean and examining the flawed process.”
SODA: Well said.
I agree with SODA and Norm. The fact that Director of Community Development Katherine Hess even walked the Village Homes site with NewPath cheering this whole mess on and then later “softshoes” her part in all of this is outrageous. Then she obviously was trying to dump the blame on Public Works even though she was responsible for authorizing the permits. All of this behavior is aberrant and despicable.
We need management City Staff with integrity who are also competent. Paying Hess the $166,000 a year for costing we the residents, millions, needs to end NOW.
The only way to stop this dysfunctional situation is to FIRE HESS NOW. And I also agree that if City Manager Emlen won’t fire her, fire Emlen too for perpetuating this problem.
timeforachange_in: I agree with SODA and Norm
That’s obvious, and has been since the three of you have been commenting here. Ugly remodel in your neighborhood? Fire Hess. Somebody’s lawn too brown? Fire Hess. Freaking fire trucks too damn loud? Fire Hess. In fact, I can’t think of a single instance of any commentary written here when your collective answer is other than “Fire Hess”.
Bah.
Neutral, given the nature of your comments, and the obvious anonymity of your moniker, I do wonder who exactly you are. I mean given all that has happened, it is at least reasonable to wonder how we got here and to question some of the official account.
I worked in this town for around 30 years in the construction business, but I’ve been semi-retired for about four years. So these days I don’t work with, associate with, hang out, or interact with City Staff except on those rare occasions when I need a permit for some project around the house. Does that help?
As to my comments, from the beginning of your coverage of NewPath, you seem to have drawn a group of people dedicated to the proposition that all of the blame should be laid at the feet of ‘City Staff’, and City Staff alone. I disagree, and believe this whole incident has been handled very badly by *all* the parties involved.
David: it is at least reasonable to wonder how we got here and to question some of the official account.
Absolutely. But reasonableness doesn’t fit well with hints and allegations or outright accusations not borne out by the facts. That’s not an ‘investigation’, it’s a lynch mob.
Neutral:
“In fact, I can’t think of a single instance of any commentary written here when your collective answer is other than “Fire Hess”.”
That’s just stupid. Spare us the hyperbole.
“this whole incident has been handled very badly by *all* the parties involved.”
Finally something we can agree on!
Where our positions diverge is that I think Hess should be terminated for her role in keeping the City Manager and City Council in the dark. In addition, if the lawsuit reveals that Emlen has been less than honest about his being informed, then he needs to be terminated as well.
Moreover, his lack of effective management in regard to this particular problem (the Hess situation, his personal duck and cover behavior, his failure to get the City Council and attorney appropriately postured for an effective response to NewPath, etc.) calls into question his fitness to continue serving as city manager irrespective of the ultimate outcome of the question about his candor.
The fact that all parties involved performed badly does not give a pass to Hess and Emlen. They are the professionals we pay to deal with these issues. They failed to perform adequately. This failure is going to have a high price tag at many different levels. There needs to be an appropriate response.