The Vanguard in investigating how it was that encroachment permits were issued by the public works department has obtained copies of all of the encroachment permits that were issued to the company NewPath between October 21, 2009 and November 16, 2009. Counter to claims made by the company at the time, the city directly ordered the company to work with the owners of a given property as a condition of building the facility.
This condition was not adhered to and on that basis the city might have had the authority to pull the encroachment permits. This is important because there is a reasonable possibility that NewPath will sue the city of Davis as they have other communities.
In the meantime the documents signed by John Childress clearly stated the following:
“A) Coordinate access and work schedule with affected resident(s) and/or property owner(s) prior to start of work.”
Moreover, the document was signed under the condition that:
“All work shall be done in accordance with Standard Plans and Specifications and the Special Notes and Comments” of this permit.”
and
“A copy of this permit shall be available on site at all times that work is in progress.”
At the December 2, 2009 Davis City Council Meeting we found out from a board member of the Village Homes Homeowners Association, Alan Jackson that these standards and conditions were not adhered to.
He said:
“This gentleman made it very clear to me that it is not their policy to contact the owners of the property that have that public utility easement on their property. They go ahead and ask forgiveness later.”
Elaine Fingerett, whose diligence on the matter alerted the city to the problem in the first place complained vociferously about a lack of a process. She described at the city council meeting that she came home to find someone working on her property, in clear violation of the enroachment permit.
Lucy Asai who lives on Linden Lane spoke before council in January and accused the company of intentionally avoiding public notification.
“They tried to be sneaky about it. They actually put the pole on our property after we had spent money on our landscaping.”
In fact, that action may be in violation of the second condition of approval:
“Restore surface improvements/landscaping to their original condition.”
In December, Stephen Garcia, director of external affairs and land use for NewPath Networks said his company has sued cities before because of the misunderstanding, but would rather work it out with Davis outside of court.
He claimed:
“Unfortunately, we’re being treated differently than other California public utilities. We’re working, or trying to work, with the city manager and Public Works Department. We’ll know Tuesday whether there’s an intention to reconsider the decision, then NewPath will decide the next step. “We’re not going to abandon locations based on the level of public resistance because there is a coverage gap.”
However, the company neither in December nor at the janaury city council meeting ever explained why they attempted to place antenna’s on private property without adhering to the signed terms and conditions for the encroachment permits.
Jason Sears at the January council meeting complained that his company was unfairly portrayed as the villain. He contended that NewPath had worked with the city from day one to obtain the permits and was not trying to hide anything from the community. But even then they never gave an adequate answer as to why they failed to adhere to the conditions of the permit that they had worked with the city to obtain.
The duplicity of NewPath should not take focus away from the other key question, as to who dropped the ball in the city. There has been a good amount of finger pointing at City Hall over this and it is unclear who exactly dropped the ball.
In early December, City Manager Bill Emlen told the Davis Enterprise that he was unaware of the project because it was being treated as a public right of way. He said it’s not unusual for the Public Works Department to grant construction permits for such projects without his review.
He told council in December:
“I believe that from staff’s perspective that more public outreach should have been done.”
The explanation of public right of way makes little sense given the permit specifically was issued for private properties with the full stipulation of access and work schedule with the owner. That suggests a huge disconnect between what was issued by the public works department and what was claimed by both the city and company about public right-of-ways.
There is still more to sort out. We were able to trace a decision to issue permits in the fashion that they were issued to City Engineer Bob Clarke along with Mike Webb, a principle planner, but it seems unlikely that the decision was made below the level of department head at the very least.
The December 15 Davis Enterprise article suggests Community Development Director Katherine Hess bears a role in that decision, a role that she does not appear to deny even as she suggests the situation was complicated.
Some in the community blame Hess for letting the project go forward without bringing it before the City Council or requiring NewPath to notify residents.
But 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.”
Citizens have thanked the city for the quick action to put a stop to this, but that does not excuse them from the blame of perhaps being negligent and allowing it in the first place. There seems to be plenty of blame to go around here. The fact of the matter is that none of the decision-makers here are exactly new to the city. They should have understood that the community would take exception to permits without notification. In fact, it appears that the permits require at least notification for purposes of access and even that detail was not adhered to.
NewPath is clearly a company that is disreputable and they have a long history of disputes with cities as they themselves have suggested. They have sued cities such as Irvine over such details. However, the city of Davis is probably in good standing at this point to avoid a lawsuit.
The appalling fact is that the company was remarkably arrogant and brazen even during the appeal. They accepted no responsibility and make little concession to the city or its residents.
—David M. Greenwald reporting
The answer to your allegations of negligence against City Staff is in front of our faces: the permit was issued with clear instructions to notify homeowners and restore any damage to property. Once notified of a violation, the City shut the project down. The system worked.
As to the the telecom ordinance, I suggest that the platoon of lawyers at the appeal hearing means there was genuine confusion about whether it applied. If the people who work in the area every day, who are most familiar with law and regulation, and are responsible for issuing permits somehow got it wrong, then maybe the problem lies in the ordinance.
You’ve said that before but no one I have spoken to involved in that process actually believes the process worked as intended–not the council, the city manager, city attorney, or most of the other city staffers. So I’m not sure exactly where you arrived at that opinion.
“I suggest that the platoon of lawyers at the appeal hearing means there was genuine confusion about whether it applied.”
I asked Harriet Steiner about that, and the reason they had several attorneys was to cover their bases in case NewPath tried to sue and argued that there was a conflict in the city council receiving the same legal advice from the same person as the staff. So one attorney represented the council, one the staff, and Harriet recused herself. (Makes you wonder about other situations, but the idea was to err on the side of caution).
I think I said this before – NewPath is a slimy company. They claim that the rules don’t apply to them, even the simple, clear ones – as you have demonstrated with these permits. I’m sure city staff wish that they never came to town. They have underestimated the will of the Davis community when it comes to things like this.
. . .no one I have spoken to involved in that process actually believes the process worked as intended. . .
“Intended”? No. I’m only arguing that given the information they had at the time, City staff made no errors in issuing the permits. The fact they spent 11 months in plan review shows due diligence, not negligence.
This cellular tower issue is a huge screw-up by the city. What becomes more and more apparent is that the Community Planning Director Catherine Hess is responsible. She worked on this for 11 months with New Path and admits to giving permission for these permits. It was Hess’ responsibility to notify the public. Even City Manager admits this. The most egregious behavior here is Hess clearly trying to diffuse the blame of this incredible and expensive mess to other city co-workers.
We also need to ask what the financial cost was to US of having three attorney’s for hours and hours at the City Council meeting a few weeks ago. One separate attorney was protect and defend the Council and TWO attorney’s to protect and defend the staff. We need to know the cost to the city (basically us paying that bill) for this massive attorney coverage and the 400+ page staff report that they spent many hours producing for the meeting. Hess, Emlen and city attorney Harriet Steiner were notably not at the staff table to answer any questions to incriminate the city.
Hess has had a long history of screw-ups. Like the Montessori school noise issue which has dragged on for 16 years and then Hess tried to invent a new ordinance, admittedly, so the city can ignore the neighbors noise complaints. Even though these noise problems can be mitigated per a (noise consultants recommendations) Hess still tried to throw this neighborhood “under the bus”. It looks like this noise issue is coming up so it will be interesting to see if Hess continues to make a mess of that issue as well.
Beyond this Hess screwed over the Chiles Ranch neighborhood, tried to put huge rotating signage on I-80, and screw over a south Davis neighborhood by ignoring a riparian buffer protection ruling by Fish and Game. Then the millions that Hess cost the city mismanaging the affordable housing programs. The list is endless.
Hess is incompetent, she is costing us too much financially, and she will never work for the best interests of the citizens. Hess needs to be fired, and if City Manager Emlen won’t fire her, we need to fire him too for covering up for her.
Agree with timeforachange – How many more times does Katherine Hess get a pass on her incompetent mistakes? Whether or not it was clear at the time of permit issuance that they were subject to the City’s telecommunications ordinance, wouldn’t you, if you were in that position, operate with an abundance of caution? Rather than stealth and secrecy? It’s a pattern with Katherine Hess – in the name of “streamlining the process” she is allowed to at the very least disenfranchise residents, and on the face of it appears to be a rogue operator over there at CDD. Any of us in that position would have been sacked by now.
timeforachange: It was Hess’ responsibility to notify the public.
No, it wasn’t, anymore than it would be to notify the public because AT&T or Comcast was replacing and upgrading their “equipment”.
dexter: Any of us in that position would have been sacked by now.
On the contrary, ‘any of us’ don’t have the background, education, training, and experience.
Sorry Neutral, but it was definitely Hess’ responsibility and staff acknowledged that notification of the public was not done as it should have been. The issue of location of cell phone towers in Davis has been a huge and controversial issue a number of times and Hess was aware of that. She had 11 months to get “clarification” of the city’s own ordinance and she clearly did not do that.
Hess does not even have a planning background. She never should have been made a director of our planning department and she needs to be fired. Why are we paying her $166,000 per year to pay an incompetent director who cost us millions of dollars in lost funding for affordable housing and now what ever the hefty price tag for another mess with this cell tower issue. Hopefully we can find out how much this “Hess-mess” has cost us.
The most important reason to fire Hess is preventative because these disasters, and near disasters, will continue to happen as long as Hess is the director.
The fact that a firewall was constructed between the legal representation of city staff and the city council looks like prima fascia evidence that Steiner is aware of malfeasance on the part of one or more staff members.
I would also suggest that there is an active cover-up to try and keep the most damaging facts out of the public record. There has been ample time for the City Manager to discover and fully disclose how this happened – and he has failed to do so.
Personally, I don’t believe that Mike Webb and Bob Clarke unilaterally made the decisions to (1) keep this from the City Council and (2) look the other way while the permits were violated. These permits took almost a year to negotiate, and involved the planned installation of large devices on both public and private property city-wide. It defies credibility that the Planning Director (Hess), City Manager (Emlen), and City Attorney (Steiner) were not directly involved at some level.
Although the immediate threat is gone, it is still important to determine what happened; and then, as appropriate, discipline, demote, or fire the individuals responsible. The city is under-performing and embroiled in a severe fiscal crisis. It is imperative that there be some accountability when major problems like this occur. If this accountability isn’t forthcoming, then we need to immediately replace the City Manager.
Whe things go wormg in this City Catherine Hess’ name seems to come up again and again. If she is responsib;le here she shoud be held acoountable. Exposing the City to potential lawsuits is a serious probelm and very negligent.
Apparently it’s not potential any more. That said, i’m not sure those actions exposed the city to the lawsuit.
Here ya go:
NewPath Networks, LLC v. City of Davis, California
Plaintiff:NewPath Networks, LLC
Defendant:City of Davis, California
Case Number:2:2010at00116
Filed:January 28, 2010
So do the city taxpayers now get stonewalled using the excuse that the matter is the subject of ongoing litigation?
The individual(s) responsible need to be publically identified and held accountable.
From the staff report (emphasis added) … “When NewPath came to the City, NewPath asserted, and [u]staff made a decision[/u], based on NewPath’s assertions, that NewPath’s facilities were in the right of way and were exempt from discretionary City review. Based on this erroneous determination, the NewPath requests were sent through the City’s encroachment permit process and were handled by lower level administrative staff.”
This artfully constructed text from the background section gives the impression that lower level staff is responsible. However, I think we need to drill down on the highlighted text.
(1) Which “staff” were involved in the initial decision?
(2) Why did they rely on the “erroneous determination” by NewPath rather than making a competent independent determination?
(3) Where are the documents related to this decision, and whose names are on these documents?
(4) Why was Emlen not aware until Nov. 2009, and does this constitute a sufficient lack of oversight that warrants his removal as City Manager?
Based on the known facts, I’m willing to accept the excuse that his subordinates kept him out of the loop if, [u]and only if[/u], he takes immediate disciplinary action. Otherwise he needs to be replaced.
Norm: The complete – and public – record will be submitted in Court by one side or the other (more likely competing versions of the same “facts” by each). Until then I’d suggest allowing the process to move forward, rather than continuing your attacks on City staff for decisions made in good faith.
Neutral:
How do you know that the decisions were made in good faith?
Do you believe that there should be accountability for negligently bad decisions that lead to substantial costs to the taxpayers?
I’d suggest allowing the process of public debate to move forward, rather than continuing to confront members of the public that want to get to the bottom of this mess.
David:
I hope it is clear to you that the game plan of the responsible individual(s) is to hide behind the litigation process … and I sincerely hope that you continue with your investigative journalism on this topic. Please don’t be dissuaded by the self-serving claim that your reporting will negatively affect the outcome. You didn’t create this problem, and it should not be used to muzzle you.
Norm:
If you have evidence to back up your assertions of ‘incompetence’ or ‘negligence’ by City Staff – at any level – place it in the record. *NewPath* is the one who violated the terms clearly stated on the permits, which (in part) caused the revocations. And had they been less arrogant and actually contacted property owners, the disputes would likely have been resolved, and we wouldn’t be having this ‘discussion’.
Further, at the time of the permits were issued – after *11* months of work – the only “error” leading to this overblown fiasco was one that required four attorneys, 900 pages of documents, countless hours on telephones, and a public hearing which solved absolutely *nothing*, but which did give ample time for our august City Council to engage in a couple of hours of righteous indignation, and scape a small herd of goats.
*None* of which has a damn thing to do with “City Staff”.
I don’t understand how you can suggest this is overblown when the lawsuit is going to expend costly energy and money to defend.
Moreover, everyone involved at the city level has acknowledged a staff error of allowing this to go through without community involvement, the only question is who the culprit is.
David:
But for NewPath’s lack of common sense and common courtesy, we wouldn’t be having this conversation. Like any other utility they would have noticed the homeowner, and by the terms they had agreed to, negotiated any required changes in location and/or design. PG&E, AT&T, by my count three other wireless carriers, and of course Comcast, perform the same type of work all the time with no problems.
No “culprit” required.
IMO, you’re comparing apples to oranges. Placing cell towers on someone’s property or even in the public right of ways should have triggered public outreach by the city in addition to notification requirements on the company.
“Neutral” –
The evidence is self-evident. We are being sued by NewPath. If this was a business; heads would roll.
The revocation was caused by the political heat that Emlen was feeling, and everything else is post hoc justification.
From the staff report –
“And on December 5, 2009, the City Manager rescinded all 37 permits on the grounds that (1) NewPath did not comply with the City’s Wireless Ordinance; (2) the permits for ground-based fiber and conduit relied on the location of wireless facilities that had not been approved and may not have met location requirements for wireless facilities in the City’s ordinances; (3) other permits relied on access to public property that is not within public rights of way with permitted access; and (4) certain of the proposed poles and other above-ground facilities are proposed for locations that do not permit above ground facilities.”
What is noteworthy is that there is [u]no[/u] mention that NewPath violated the terms of the encroachment permits as documented above in David Greenwald’s investigative report.
Did the staff neglect to lay out their best case in the staff report? Or could it be that this was discovered later?
If you’re going to shill for the staff by confronting everyone that has a problem with how this was handled, you really ought to have a tighter set of talking points. Those of us that are just starting to get up to speed on this issue can see right through the smoke you’re trying to blow.
I would also add that the large majority of staff do a good job, and perhaps some honest mistakes were made. However, there are clearly a few bad apples as well.
Regardless of the source of this particular problem, the lack of accountability over time allows problems to flourish. We are now paying the price … and it may be quite high.
David: When you first broke this story in December, Rich posted some photos of tiny boxes (smaller than a shoebox) suggesting this construction would be almost invisible. (The boxes could be mounted on existing poles and buildings.) Since then, I haven’t seen any drawings, photos or descriptions of what’s being “built.” Do you know what’s actually involved? I see you’ve got a gigantic tower accompanying this posting; does it have anything to do with what was to be constructed at the 37 permit locations?
That picture is the image off NewPath’s site. My understanding is that some of these are tall but very thin towers, but the big issue is that they were on people’s property without permission and failed to comply with the city’s conditions of use and now of course they are suing. It is quite possible that this would have been a non-issue if the structures were unobstrusive and they have performed the process properly.
JustSaying: The staff report has mock-ups showing before and after pictures at every location (in which images of the planned equipment is photoshopped into photos from each location). Here’s the link. The file is huge.
http://cityofdavis.org/meetings/councilpackets/20100119/03 NewPath Network Appeal Hearing.pdf
So let’s see. Given just a few of Hess’s planning train-wreck history of: 1) advocating against the best interests of the citizens and their neighborhoods (i.e. Chiles Ranch, Wildhorse, Willowbank Park, Green Meadows, the L St./5th St. neighborhood etc. just to name a few), 2) losing over tens of millions of dollars to our affordable housing fund by years of her mismanagement, and 3) trying to place giant rotating louver signs along the I-80 corridor to make Davis look like Vacaville (with no net revenue to the city to boot. These disasters are just a few of the many that Hess has caused. Yet, we reward her out-of-control incompetence and the continuous enormous costs to US with a $166,000 PER YEAR salary with benefits to her?
Our economic times are already challenging, yet Hess has simply added significantly more expensive and vision-less problems. Davis needs to make a change for the better . We need now and competence leadership for our planning department.
Davis can not longer afford the liability of such an incompetent director as Hess. We need to protect our city from more enormous financial loss that Hess continues to cost us, and get a competent person to replace her.
Let’s get bumper stickers.
“SAVE DAVIS = FIRE HESS”. We can’t afford any more of her enormously expensive and destructive screw-ups. She has no right to ruin Davis and add to our fiscal problems.
Took Norm’s suggestion and pored over the Jan. 19 Council packet. It’s even worse than I’d imagined. Given the potential impact of the installation of these towers on the neighborhoods involved – not to mention on the homeowners of the private properties in question – it’s probably not a surprise that Katherine Hess went on her own with this rather than bringing her boss the City Manager into the loop. A transparent process with public notice and debate would never have achieved the desired result for New Path. And when push comes to shove it’s the CDD clients – be they developers or for-profit entities like New Path – who get what they want from Katherine Hess. It’s certainly not the citizens of Davis. Time for her to go. The cost of her tenure to the City continues to mount.
David: It is quite possible that this would have been a non-issue if the structures were unobstrusive and they have performed the process properly.
Exactly my point.
“It is quite possible that this would have been a non-issue if the structures were unobstrusive and they have performed the process properly.”
David stated the obvious to make a point. This does not deflect attention from the role of (some members of) the city staff in creating this mess.
In reality … the structures *are* obtrusive, NewPath *does* have an established track record of aggresssively dealing with other communities, some members of the staff *did* mismanage the process, the city council *was* kept out of the loop, Bill Emlen *does* claim he was not briefed on the project by his subordinates, and the city *is* now facing a lawsuit.
In reality … the structures *are* obtrusive
Arguable. There are multiple designs, including those that replace and look no different that a standard signal pole.
NewPath *does* have an established track record of aggresssively dealing with other communities
Other than Irvine?
some members of the staff *did* mismanage the process
Again, arguable. Who? Those who made the initial judgment call that the ordinance didn’t apply? Or those who forced a total shutdown when negotiated change would have sufficed?
the city council *was* kept out of the loop
Yes, the City Council *claims* ignorance, but I can’t *prove it* one way or another. That stated, do you honestly believe Emlen would have shut down the entire project because of a “misunderstanding” at one location? I think not.
Bill Emlen *does* claim . . .
Yes, he does. Relevance?
the city *is* now facing a lawsuit.
That is a true fact.