LAKEPORT, Calif. – The Lakeport City Council on Tuesday evening granted a 60-day continuance in a cell phone tower appeal case in order to allow for the exploration of additional sites and designs.
Complete Wireless Consulting, on behalf of Verizon Wireless, has applied for a permit to build a 72-foot monopine tower – which would be disguised to look like a pine tree – at 1875 N. High St. in order to increase cell coverage for about 3,400 Lakeport-area residents, according to a company representative.
The Lakeport Planning Commission approved the project in May, with Nancy Ruzicka, owner of the High Street Village shopping center, appealing it to the Lakeport City Council, which first heard it last month.
Both at its June 16 meeting and again on Tuesday night, the council appeared united in not believing the site is appropriate.
While zoned commercial, it's in the midst of neighborhoods where residents have said it would negatively impact the aesthetics and their property values.
The council had held the discussion over from last month, directing Community Development Director Kevin Ingram to return with a draft resolution containing findings to support Ruzicka's appeal.
Ingram did that, presenting the resolution to the council on Tuesday. The draft document cited inconsistent land uses, an incompatible design, the potential for the tower's building materials to break down over the long term and lack of evidence that other locations aren't more feasible.
He said the city had been in contact with the applicant, and it was possible that alternative locations that take into account both the cell coverage gap and residents' concerns can be found.
Jenny Blocker of Complete Wireless Consulting told the council that Verizon wanted 60 days to analyze alternative locations and designs for the project.
Mayor Martin Scheel asked City Attorney David Ruderman to explain what actions the city could take as part of the appeal process.
Ruderman explained that the council can modify conditions of permits or revoke permits granted by the commission, and could approve an alternate use permit.
“The council's decision is the final decision with respect to that location and that design,” he said.
Ingram explained that it would be a six- to eight-month process if the company applied for a new location.
Neighbors who spoke during public comment urged the council to disregard the continuance request and grant Ruzicka's appeal, pointing out that Verizon would have to reapply for a new location anyway.
Suzanne Lyons questioned why Blocker said at the June 16 meeting that the North High Street location was the only location the company was willing to consider, and now was asking to consider other options. “I really think the people have told you what they want.”
Lea Passantino, owner of a parcel at 11th Street which had been considered but eliminated for the cell tower site, said her property deserved a second look, as she is willing to have the tower on the property.
Ruzicka also wanted her appeal to be granted Tuesday night, saying she disagreed with some of the resolution's findings because she said they were incorrect. She wanted the city to accept a new application for another location at a later date.
During the meeting council members raised concerns about the potential for litigation, with Councilman Marc Spillman asking Ruderman about the potential dangers of granting the appeal.
Ruderman explained that, based on the federal Telecommunications Act, local jurisdictions can't make decisions about cell towers based on radio frequency emissions concerns.
He said carriers are able to build towers in areas that cover a significant gap in coverage. “They are entitled to put those towers in the least intrusive, feasible location,” he said.
If a court determines a city has denied a carrier's right to locate in such an area, that's considered a denial of service, and such a decision by a city can be overturned, Ruderman said.
“The danger is that Verizon would institute a lawsuit against the city and try to show there was no feasible, less intrusive or equally intrusive alternate site,” he explained.
Councilman Kenny Parlet asked about who decides what constitutes “least intrusive,” noting that Verizon had disregarded several other potential sites.
“They're writing the rules on what's feasible,” he said, amidst applause from the audience that Scheel silenced. “That's the problem I have.”
Parlet was concerned about the potential for Verizon to file a lawsuit against the city based on who determines a site's feasibility.
“A judge is going to decide what's feasible,” based on information put forward by the plaintiff and defendant in such a case, said Ruderman.
Ruderman said the city could hire its own expert to analyze Verizon's findings, an expensive measure that he said other cities have taken.
Councilwoman Stacey Mattina asked about the most business-friendly way of handling the matter.
Ruderman replied that, from a policy perspective, the council could say it wanted good cell coverage in the city and wants to work with Verizon to make that happen, but make clear that the location in question doesn't work.
Councilwoman Mireya Turner felt the resolution made the city's issues clear, adding that gaps in cell coverage present a real concern for local agencies such as law enforcement.
“Adequate cell phone coverage is essential,” she said, noting she was OK with granting the continuance in order for the city to work with Verizon to find a better location without the land use conflict.
Spillman asked Blocker if Verizon would be interested in the continuance if it only pertained to looking at new locations, not the one on North High Street.
“I would say, probably no,” said Blocker, adding. “We are trying to find a facility that will work for both parties.”
Mattina asked Blocker about her comments at the last meeting about Verizon simply moving on if the North High Street site isn't approved.
Blocker said that a decision about another site is ultimately up to a Verizon radio frequency engineer, maintaining that the company has not found another feasible location.
Turner asked if the company would withdraw its continuance request if only alternative sites were to be considered. Blocker said she didn't think so, explaining that the company wanted the ability to fully analyze if there are alternative locations and designs.
Mattina asked if the company ever does outreach into communities. “I would think this happens more frequently.”
Blocker said some jurisdictions – like Oakland, Berkeley and Cupertino – either require or strongly encourage community meetings on such projects. She said there was no such suggestion from city staff, which Mattina said should be noted for the future.
Scheel said he wasn't clear on the need for the continuance if the council was against the North High Street location.
“They may find our findings are not solid, and then we have a really big problem,” replied Mattina.
“The last thing I want to get into is some very contentious, expensive lawsuit,” said Parlet.
He said the city wants to work with Verizon to meet the needs of the community and public safety, but they don't want it at the North High Street location – no matter what design it has.
Spillman said he saw no advantage to the continuance, noting he didn't like making decisions based on fear of lawsuits versus what he believes is correct.
“I think the continuance is prudent from a legal standpoint, and not only that, a negotiation standpoint,” said Scheel, who added he was only looking at an alternative location option.
Mattina moved to grant the 60-day continuance, with Turner seconding and the council voting 4-1, with Spillman casting the lone no vote.
The matter is expected to be back on the council's agenda for its Sept. 1 meeting.
Also on Tuesday, the council voted to appoint Mattina as voting delegate, Turner as first alternate and Parlet as second alternate at the League of California Cities September conference; approved Ingram's request to issue a request for proposals for housing grant consulting services; and met new Administration Department intern Brittany Benner.
The presentation of a certificate of achievement to Finance Director Dan Buffalo for excellence in financial reporting given by the Government Finance Officers Association for the City’s Comprehensive Annual Financial Report was held over due to Buffalo being on vacation.
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Lakeport City Council grants extension in cell tower appeal
- Elizabeth Larson
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