The strange saga of NewPath continues as now the city of Davis has filed a complaint with the California Public Utilities Commission CPUC) alleging that the telecommunications company had begun construction on four of its facilities prior to receiving a Notice of Proposed Construction and Application for Determination of Exemption from CEQA (“NPC”) from the Energy Division of the CPUC.
NewPath is a competitive local exchange carrier, authorized by the California Public Utilities Commission under a Certificate of Public Convenience and Necessity, to provide “full facilities-based competitive local exchange and access services… for the entire state of California.”
NewPath appealed that decision, but the City Council on January 19, 2010 denied the appeal and upheld Mr. Emlen’s decision. NewPath then filed a lawsuit against the City of Davis, a motion for a preliminary injunction was denied a week ago by Judge Garland Burrell of the US Federal District Court.
According to the complaint filed by the city of Davis, on November 25, 2009, “Jensen Uchida, a Regulatory Analyst with the Energy Division of the Commission, sent a letter to NewPath’s consultant” stating:
“The Energy Division has reviewed NewPath’s proposal to construct the Davis DAS project in the City of Davis, California and has determined that the proposed construction activities are consistent with the activities found by the Commission to be categorically exempt from the requirements of CEQA. The Energy Division hereby grants NewPath with the authority to proceed with the construction of the project as described in the NPC.”
According to the city’s complaint, the NPC was neither served on the city nor was there any notification of NewPath’s intent to seek an exemption under CEQA prior to November 25, 2009.
Therefore, the city believes that NewPath began construction before the Energy Division issued NewPath an NTP (Notice to Proceed).
“The City Manager issued the Stop Notice on November 30, 2009 – the Monday after the Thanksgiving Holiday and just a few days after the NPC was apparently issued on November 25, 2009 – the Wednesday before the Thanksgiving holiday. Yet the City is informed and believes, and on that basis alleges, that four of the 21 proposed new wood and steel poles had already been constructed by the time the Stop Notice was issued. In addition, several other locations show excavation work and some fiber and other equipment installation.”
The city also argues that the project falls within an exception to exemptions and therefore is in violation of CEQA, arguing that
“The CEQA categorical exemptions are not absolute. There are several exceptions to the categorical exemptions. Relevant here is the so called “significant effect” or “unusual circumstances” exception. Even if an activity fits within an otherwise exempt category, the lead agency may not find it exempt if the project will have a significant effect on the environment due to unusual circumstances.”
The complaint continues:
“There is substantial evidence in the record before the Davis City Council and the Energy Division showing a reasonable possibility that NewPath’s Project will have an adverse environmental impact sufficient to remove the Project from the categorical exemption class because of the unique characteristics of the locations and neighborhoods that would be impacted by NewPath’s Project.”
Furthermore the city argues that NewPath is prohibited from commencing construction of facilities that are not going be installed on existing buildings or structures prior to obtaining a NTP.
The city is clearly fighting back now against NewPath after NewPath filed a lawsuit. In this complaint, the city asks the CPUC to enforce CEQA by ordering the Energy Division to withdraw the NTP issued on November 25 and “prepare an initial study and determine whether the Project will have a significant effect on the environment requiring preparation of an environmental impact report, taking into consideration local undergrounding and zoning regulations.”
In addition, the city is asking for relief “affirming that NewPath commenced construction before obtaining a Notice to Proceed from Energy Division staff in violation of its CPCN, and requiring NewPath to remove all construction installed in violation of the CPCN.”
In the meantime, as we reported last week, NewPath’s bid for a preliminary injunction that would have allowed them to continue construction while the merits of the lawsuit were litigated were struck down by Judge Garland Burrell.
In their motion NewPath argues that they have suffered irreparable harm and should be able to proceed building their wireless system as their lawsuit proceeds.
“NewPath seeks an order from the Court canceling 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.”
According to Judge Burrell, the plaintiff must meet a high legal standard in order to gain a preliminary injunction.
He must establish:
“that he is (1) “likely to succeed on the merits”; (2) “likely to suffer irreparable harm in the absence of preliminary relief”; (3) “the balance of equities tips in his favor”; and (4) “a preliminary injunction is in the public interest.”
Ultimately Judge Burrell rejected them on all four criteria.
In the meantime, the Vanguard has been working to find out what went wrong with the public process in the city of Davis, as it appears now that senior level staff were aware of talks between the company and the city of Davis over the course of an eleven month period culminating in the November 25 pulling of encroachment permits.
That timing is now put into question by the city, who had 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. Now it appears that NewPath may have begun construction before the November 25 NTP was approved at the state level.
The Vanguard will continue to have the latest updates on this continuing saga.
—David M. Greenwald reporting
DPD: “That timing is now put into question by the city, who had 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. Now it appears that NewPath may have begun construction before the November 25 NTP was approved at the state level.”
Sounds like New Path improperly convinced the CPUC that is was exempt from CEQA – then used the CPUC’s permission/approval to convince city staff that NewPath was exempt. Yet it appears it would take a knowledgeable lawyer to ferret out the truth. Perhaps the CPUC needs to look more closely at its own processes for exempting entities like NewPath from CEQA…
E Roberts Musser:
With all due respect, there is absolutely no evidence that “New Path improperly convinced the CPUC that is was exempt from CEQA.”
Even if this assertion were true, because the NPC was approved in November (almost a year after NewPath began working with members of the City staff), there is obviously no timeline in which the company could have “used the CPUC’s permission/approval to convince city staff that NewPath was exempt.” I wouldn’t accept this excuse from my kids (… it was really complicated, but they [u]told[/u] me it was OK), and I certainly don’t accept it from our professional staff — particularly at the (highly paid) management level.
Moreover, a knowledgeable lawyer is not necessary to ferret out the truth … just honest disclosure from the the Department Heads (CDD and PW) and the City Manager.
Hess did an on-site inspection of a site(s) where NewPath intended to encroach on private properly to build one of their poles/towers; and elected to keep both her boss and the City Council in the dark. This has since blossomed into a lawsuit, a PUC counter-complaint, and a big (and growing) bill for the city. To add insult to injury, Emlen throws the junior staff under the bus with the bizarre story that they were “tricked” by NewPath … completely failing to address the question of managerial and legal oversight by Hess and Steiner. If the PUC rules are so $%^#@ complicated, does Emlen really expect us to believe that some “low level” staff members went rouge and managed to shepherd this through the system for almost a year without seeking guidance from Hess and/or Steiner?
Norm: “With all due respect, there is absolutely no evidence that “New Path improperly convinced the CPUC that is was exempt from CEQA.”
Even if this assertion were true, because the NPC was approved in November (almost a year after NewPath began working with members of the City staff), there is obviously no timeline in which the company could have “used the CPUC’s permission/approval to convince city staff that NewPath was exempt.” I wouldn’t accept this excuse from my kids (… it was really complicated, but they told me it was OK), and I certainly don’t accept it from our professional staff — particularly at the (highly paid) management level.”
If the rules and regulations for the permitting process inre telecommunications is so convoluted and bogged down in unnecessary verbiage that gov’t officials have trouble discerning where they legally stand, then my position is the law needs to be changed so that it is as clear and concise as possible.
However, that does not mean I feel city staff/city management/the city attorney should be necessarily let off the hook in this situation either. If the law was as convoluted and unclear as is suggested by DPD’s article (which in my opinion is an issue that needs to be investigated), then I would expect any local officials to start asking questions of the right people within the city’s own gov’t(e.g. upper mgt, city atty) if it appears a 40 foot pole will end up in someone’s front yard.
And that is the key issue for me – the 40 foot pole in someone’s front yard. Clearly no one in their right mind would care to have a tall pole stuck in their front yard – it doesn’t seem reasonable to even require such a thing. That should have raised alarm bells enough for city officials to have consulted with the city manager and the city attorney. Why that was not done speaks to a lack of leadership in the way the city itself is run, IMHO.
But I do have a pet peeve about how laws are stated in such a way to cause all sorts of confusion, when clearer language can be used. A lot of people make a lot of money off of imprecise and complicated language – and it is to the detriment of taxpayers!
“And that is the key issue for me – the 40 foot pole in someone’s front yard. Clearly no one in their right mind would care to have a tall pole stuck in their front yard – it doesn’t seem reasonable to even require such a thing. That should have raised alarm bells enough for city officials to have consulted with the city manager and the city attorney. Why that was not done speaks to a lack of leadership in the way the city itself is run, IMHO.”
I agree 100% with this statement. However, let’s get more specific … the on-site walk-through of Village Homes should have raised alarm bells enough for Hess to have consulted with Emlen and Steiner.
Emlen claims she didn’t, NewPath claim she did. Which story is more credible? How do we get to the truth? What corrective action needs to be taken?
Norn: “I agree 100% with this statement. However, let’s get more specific … the on-site walk-through of Village Homes should have raised alarm bells enough for Hess to have consulted with Emlen and Steiner.
Emlen claims she didn’t, NewPath claim she did. Which story is more credible? How do we get to the truth? What corrective action needs to be taken?”
This is where we may disagree slightly (or maybe not!). There should have been no question that Hess should have checked with Emlen when she realized a pole was going to go smack dab in someone’s front yard. If she didn’t feel the need to check, it seems as if the city manager is fostering a climate of “just do your own thing and don’t bother me about it”; if she did check with the city manager and she is being scapegoated for the city manager’s mistake, that is shameful. Either way, the buck stops with the city manager IMHO, no matter what Hess did or didn’t do.
I don’t understand why the City is spending money on lawsuits and complaints when the City staff authorized the whole thing. This is a losing lawsuit and CPUC complaint. The utility, Newpath, only did what authorized City staff told them they could do. Ms. Hess was in charge and gave Newpath permission to develop their project. I think that any Judge is going to tell the City to pay the costs of Newpath’s litigation expenses plus award in their favor. The City should stop this now.
“… if she did check with the city manager and she is being scapegoated for the city manager’s mistake, that is shameful.”
I’d say more like grounds for termination. Lying to the CC to cover up the facts would pretty much be a career ending offense if exposed.
From what I know of Emlen, this doesn’t seem to be something he’d do. So did Hess keep Emlen and the CC in the dark and also mislead NewPath into believing the City Manager was on board?