LAKEPORT, Calif. – Faced with a potential legal challenge on one side and angry neighbors on the other, the Lakeport City Council last week chose to offer Verizon Wireless more time to explore alternate locations for a cell tower the company says is needed to meet coverage needs.
Last Tuesday the Lakeport City Council voted 4-1, with Councilman Marc Spillman the lone dissenting vote, to give Verizon Wireless 90 days to further explore other locations for the tower.
The company has proposed to locate the tower at 1875 N. High St., a site that the council has said it does not support after hearing outcry from neighbors.
But with the possibility that Verizon could file a lawsuit over a denial of its application, the council gave the company another extension – it previously had granted a 60-day delay on the project application – to explore new potential locations.
Those sites include one on the top of the Lake County Courthouse at 255 N. Forbes St. and another on top of the District Attorney's Office, located directly behind the courthouse, although the council did not limit Verizon to looking at those locations alone.
While Verizon officials have stated that they previously explored the courthouse location and found it not feasible, information that came forward after the council meeting from a county official contradicted those statements.
Deputy Public Services Director Jeff Rein told Lake County News that there is no structural issue with the courthouse – the company had stated that as a reason why the building wasn’t an option – and that in his talks with the company, the real issue was one of money, namely, the lease cost for the courthouse location.
The council granted the extension over the strenuous objections of businesswoman Nancy Ruzicka – who owns the High Street Village shopping center next door to the proposed North High Street cell tower location – as well as residents of the nearby neighborhoods.
Ruzicka filed an appeal of the Lakeport Planning Commission's unanimous May decision to grant Complete Wireless Consulting Inc. – acting on behalf of Verizon Wireless – a use permit for the 72-foot “monopine,” which is a tower designed to look like a pine tree.
Verizon has identified a 3.8-square-mile coverage gap in the area which the tower is meant to fill. The company has looked at numerous locations – between 14 and 16, according to company officials – but settled on the North High Street location as the least intrusive, which they said requires the city under federal law to approve it. The site also meets all of the Federal Communications Commission guidelines, the company said.
Ruzicka rallied neighbors in the area who spoke to the council against the project in June. The following month, Complete Wireless Consulting sought a 60-day extension to explore other sites and designs.
When the company returned to the council last week, the North High Street site was again put forth as the best alternative, with the alternate design being a water tower. Neighbors faulted the design and city staff was concerned that it had not been vetted enough.
Verizon also presented in its argument for the site responses to a text message it had sent out in August to hundreds Verizon users in the 95453 zip code concerning the project, giving its location and and a description of its design – calling the monopine a “stealth treepole” – and asking if they were in support, were opposed or wanted more information.
Approximately 281 responses came in supporting the project, with 10 opposed. Several of the responses said, in effect, that they supported the “stealth tree” design and wanted better cell coverage.
Community and council concerns
At last Tuesday's meeting Community Development Director Kevin Ingram took the council findings that he had been directed to prepare in order to grant Ruzicka's appeal, with the key issues being aesthetics.
In his report to the council, Ingram recounted the planning commission's May approval, the June council meeting at which Ruzicka and project neighbors spoke and the July meeting in which the city granted Verizon a 60-day extension.
Ingram said community members had asked about why Verizon wasn't looking at placing a tower on top of the Lake County Courthouse in Lakeport.
Verizon had previously cited a March 2014 discussion with county officials in which the company came away with a conclusion that there was a structural issue.
Last Monday, Ingram spoke to Rein, who said the structural issue had been overcome, and that since that time another wireless carrier has located a facility there.
While there isn't much room up there, Rein told Ingram at that point that the old jail building which now houses the District Attorney's Office is available as a site. That location hadn't previously been offered to Verizon, according to the discussion Ingram and Rein had.
Jenny Blocker of Wireless Consulting appeared before the council along with attorney Paul Albritton and Verizon radio frequency design engineer Benjamin Santa Maria, who made the case for the North High Street location.
In all, 14 locations were evaluated. “We have conducted an exhaustive analysis of alternative locations,” said Blocker.
Albritton told the council that Verizon was attempting to address the coverage gap as well as capacity issues in its wireless service, explaining that the amount of data being used is overtaxing the system.
He said Verizon had asked for additional time to see if there was another way to address the coverage gap. The undulating topography of the area, he said, made it necessary to put up a tower.
Based on federal law, Albritton said the city was limited in what it could do in denying the application. The city, he explained, had to have substantial evidence to deny the site, which he argued it hadn't done.
If a coverage gap exists and a company comes up with the least intrusive alternative, Albritton said that two-prong test supersedes local findings of substantial evidence. To deny the project, he added, would constitute a prohibition of services under federal law.
“We're stuck, we can't find another alternative,” he said.
If the city denied the project, Albritton said Verizon would have 30 days to file a lawsuit, “and we would rather not,” noting that Verizon hasn't had to sue a jurisdiction in 10 years in order to place a cell tower facility.
Councilwoman Stacey Mattina asked if they would consider the courthouse location. Albritton said it would make sense to do so “if in fact it's fully available.”
Mayor Martin Scheel asked about the testing that was done to establish that a coverage gap existed. Santa Maria said they did a drive test, which involves having a truck driven through select streets to analyze service in the area. They did not do a continuous wave test, which Scheel suggested they do.
“A constant wave test is quite an undertaking,” said Albritton, noting it takes months to set up and requires Verizon to work with an outside contractor. Such tests aren't regularly done for such facility siting, he said, explaining that drive tests have been used in federal court cases to determine if sites are valid.
Councilman Kenny Parlet wanted Verizon to explore other sites. “Otherwise, we'll see you in court.”
Albritton said another property that had been considered on 11th Street doesn't work because it would interfere with another tower in Scotts Valley.
In addition to Ruzicka, 14 community members spoke to the council, 11 of them expressing opposition to the plan as proposed, one urging approval of the tower, one just asking questions about the planning commission's decision and another man offering his property for a project.
During public comment, Bob Bridges, a retired county counsel, said he's been involved in hundreds of land use applications where developers who are sincere will try hard to find alternatives.
“They never really tried anything,” Bridges said of Verizon, noting that with some of the locations Verizon only sent out letters seeking interest and didn't follow up.
“They didn't really make a sincere effort,” he said, adding that the city shouldn't give Verizon more time.
George Linn, who said he's been a longtime cell phone user, explained he doesn't have coverage problems with Verizon in Lakeport.
He questioned if there was independent testing, and said he would like to see Verizon investigate the courthouse and other areas nearby. “Let's get it out of residential and really into commercial.”
Albritton told the council that Verizon was willing to look at the courthouse, and wasn't afraid of a third-party review of its proposal. “We think a third-party review will confirm our analysis.”
When Scheel asked how long it would take to review the courthouse facility, Albritton said Verizon staff told him it would take 90 days to check if it was workable and viable.
Ingram suggested to the council that if Verizon chose a different location, that a new application – with a separate design review – should be put forward. Albritton said Verizon would anticipate taking any new site back to the planning commission for design review.
Albritton said federal law requires that jurisdictions make decisions about such facilities within 150 days, but Verizon has asked for extensions to work with the city.
He wanted to keep the application in play until the courthouse site is examined. If that site doesn't work out, he anticipated Verizon coming back with the North High Street location. Keeping the application active also doesn't trigger the 30-day period to file a lawsuit – at least not yet.
Councilwoman Mireya Turner felt the planning commission did its due diligence and its decision was sound, but she said Ruzicka's appeal opened up the chance to discuss the aesthetics issue. “I do find the aesthetics of high value as far as a position goes.”
She said increased service is needed, and local law enforcement needs a more complete network. “This is so vital. This is such an important decision that I fully support a continuance of the 90 days,” she said.
Mattina agreed, adding she was concerned that Verizon didn't look further at the courthouse earlier. Scheel said Verizon hasn't proven to him that the North High Street location is the least intrusive site, and that he didn't fear a lawsuit.
Mattina asked if the extension of time was the least confrontational way to approach the situation. Parlet said, from his perspective, it was.
Scheel said he wanted to see everyone move forward in a partnership, but added, “At some point, a line in the sand is going to get drawn.”
Ruzicka said she lost a major retailer as a potential client in her shopping center because she had signs up opposing the cell tower, there are other tenant contracts waiting and she is losing thousands of dollars. “What are my rights?”
When that question was posed to City Attorney David Ruderman, he responded, “She had the right to appeal, and that's what she's done.”
Scheel told Ruzicka that the council was not going to support placing the tower at North High Street, but that they supported giving Verizon more time to explore the courthouse, as it offered an opportunity to find a solution without litigation.
Ultimately, Parlet made the motion to grant the continuance to investigate alternate locations – not limited to the courthouse or District Attorney's Office – with the council voting 4-1.
Further developments
In a followup interview after the council meeting, Ingram told Lake County News that Rein also had mentioned the issue of the lease cost as having been a factor for Verizon to him in their discussion last week.
Ingram said he didn't have a cost estimate for how much it would cost Verizon to build the monopine tower, explaining that the city generally would get that information at the building permit phase.
He said that the standard monopole design is less expensive, with anything decorative going up substantially in cost.
Rein told Lake County News that last Wednesday, the day after the council approved the 90-time extension, he was contacted by a project manager from Complete Wireless Consulting on behalf of Verizon, expressing interest in locating the tower on top of the courthouse.
The same representative had begun discussions with Rein early in February 2014 regarding the courthouse location, according to emails Rein shared with Lake County News.
As Rein indicated in his interview with Lake County News, the company was interested in the location up until early in March 2014, after Rein informed them that the rental cost was going to be $52.70 per square foot with a 4-percent cost of living increase.
At that point, when the talks broke off, the building's structure was not a key issue. “The primary issue was money. They didn’t want to pay what we were asking,” said Rein.
Rein's emails to Wireless Consulting Services didn't raise any issues with the structural integrity issue of the courthouse roof, and he told Lake County News that no such issues exist. He believes that Verizon's raising of that issue is based on a miscommunication.
Rather, he said the issue was whether the building's roof pan – the metal deck that serves as the top of the building – provided sufficient structural support for Verizon’s equipment.
He said T-Mobile found that the roof pan provided sufficient support for their equipment but AT&T did not believe that to be true, so that company engineered a solution that involved opening up a section of the roof and welding support posts to the building’s structural beams. AT&T then attached its equipment to those posts.
“We tend to think that AT&T’s approach is significantly over-engineered and unnecessary as evidenced by the success of T-Mobile’s approach,” said Rein.
“We can’t help but think that some engineer sold AT&T on an unnecessarily complex approach but that is just our conjecture,” he said. “It only fair to give AT&T the benefit of the doubt as there may be some technical reason they thought they needed to provide enough reinforcement to support a rocket ship.”
While there is only one small remaining space on top of the courthouse, Rein said, “We've got a solution,” pointing to what he called a football field-sized space on top of the District Attorney's Office.
Rein said he responded to Verizon's latest inquiries last week, explaining that no structural issue exists and there is availability on county facilities for the tower. He'd not heard back from the company as of Tuesday.
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Verizon continues looking at Lakeport cell phone tower sites; city grants time extension
- Elizabeth Larson
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