I have been following the Pinole Cell Tower situation since March of 2013 when I became aware of the City's intent to place an 80 Foot Verizon monopole in Pinole Valley Park. I was against the installation of a cell tower in one of the most beautiful parts of Pinole Valley and against the use of the Park for commercial purposes. I soon discovered that many fellow Valley residents were against a cell tower in this location and for more than just aesthetic reasons.
What followed has been a hard-fought 10 month battle by residents to prevent Verizon from building a cell tower in Pinole Valley Park. The City has been between the devil and the deep blue sea since March of 2013.
Verizon has threatened to sue the City of Pinole for breach of contract. Several Council members believe that Verizon will do exactly that and that Verizon has a cause for action. Other council members believe that the lease agreement, never ratified by Council, precludes litigation.
The City has attempted to appease residents and Verizon. But, neither the Tower Topplers nor Verizon is ready to throw in the towel. A 60 day "cooling off period" ended on December 17, 2013. On December 17, 2013 the City announced that they were entering into a tolling agreement with Verizon, allowing 6-9 months to seek a resolution.
Verizon's deep pockets and stable of lawyers may have a case against the City of Pinole based on the fact that the City Manager signed the lease agreement on December 12, 2012, prior to Council ratification. Others believe that with the new found information relative to the Park's grant Deed restrictions (Smoking Gun), that the City can avoid litigation.
Regardless of what Verizon does or how the City offers to compromise, there are still questions regarding the estimated $350,000 in fees that Verizon has spent to locate the tower in Pinole Valley. If, Verizon finds a private property owner in the Valley willing to place the tower on their property, (word is there are two property owners interested in earning the estimated $20,000 a year), what becomes of the fees already paid by Verizon to the City of Pinole? Chances are the City will have to "eat" the fees or offer to waive all fees for the new location. This situation has been a drain on City resources. The $20,000 in projected annual revenue for the City (estimated) is a drop in the bucket when compared to the cost the City is paying to extricate themselves from this administrative foul up.
The "smoking gun" uncovered by the Topplers has the City in a most uncomfortable spot. The Topplers discovered that Pinole Valley Park land was purchased with State and Federal Grants, and therefore can not be used for anything other than outdoor recreational use.
This discovery has really thrown a monkey wrench into the City's plans for the Tower. But it is also facing possible sanctions for not properly converting the land used to build Station 74. The conversion process is expensive and lengthy and will result in more costs to the City and ultimately to the taxpayer. The City has had to allocate staff resources as well as increased attorney fees to try handle this fiasco.
The final tab is still undetermined, but it is safe to say that the City of Pinole has lost money due to this mishandled affair at a time when our City can ill afford to be losing money.
Sources tell me that Fire Fighters Union Local 1230 has won its court battle against the City of Pinole and that the city is now filing an appeal. This lawsuit and the costs involved to the City of Pinole could be crippling. More on that at a later date.
This story has not ended. The Tower Topplers I have spoken with are poised to continue to fight to keep a cell tower out of Pinole Valley.
Other residents and taxpayers throughout Pinole are wondering just what the final cost for this series of missteps will be.
Tower Topplers, Cell Tower, 2013 in review:
I asked members of this very active and passionate group, referred to as the Tower Topplers, to sum up the almost 12 months of controversy in a recap of 2013.
Their comments are below.
The Tower article links for 2013:
March, March 27. The Cell Tower
June, June 15. NO to the Cell Tower
July, July 12. Tower, to be or not to be.
July, July 18. Council Reverses its decision.
August, August 20. The Smoking Gun.
September, September 4. Topplers knock one out of the park.
September, September 17. Topplers vs. City, Part One.
September, September 21. Tower Toppled.
September, September 27. Topplers vs. City. Part Two.
October, October 3. Nearing the Finish Line.
October, October 8. Let them eat cake.
October, October 11. Follow the bouncing ball.
October, October 15. Pay the plumber.
October, October 22. Julie Maier sounds off.
October, October 22. Tower talk spark fireworks.
The following comments and the opinions expressed are those of certain members of the group known as the Tower Topplers as submitted to me for posting on Life as I Know it.
After going through a list of the properties that the City had transferred to the City of Pinole from the Redevelopment Agency to see which ones were revenue generating and to determine which ones could be sold, Patti Athenhour remarked that the Verizon Cell Site could be added to the list of rental properties. Patti had just filed a memorandum of loan agreement with the Contra Costa County Assessors office that afternoon, January 15, 2013. On March 23, 2013 the Planning Commission approved a Conditional Use Permit (CUP), which was further conditioned on Verizon Wireless obtaining a lease for the property in question, 1270 Adobe Road, situated on A.P.N. 360-210-002. There were a handful of residents at this meeting, who voiced their concerns with the health risks of the cell radiation, the back up diesel generator, the noise from the generator, the destruction of view shed, amongst other issues. Their concerns and opposition fell on deaf ears and it quickly became obvious that it was a “stealth job”. Little did anyone know at the time, that this was basically a game of charades because City Staff had already signed the lease with Verizon Wireless on December 12, 2012 and City Staff was just going through the motions of dotting the i’s and crossing the t’s.
The planning commission spent more than an hour, on March 23, 2013, debating whether a faux tree was more appropriate than the 80 foot “monopole” design that had come to the Planning Commission. At the February 5, 2013 City Council Meeting, Ratification of the Verizon Wireless Lease appeared on the consent calendar, with a Staff Report written by Belinda Espinosa, indicating that Staff had provided approval to Staff to sign a lease with Verizon Wireless in closed session on February 21, 2012.
Pete Murray, who was Mayor at this time, never announced that any decisions had been made or actions taken in closed session. The tape does not lie. Despite this Pete Murray has stated in open session on at least one occasion that the City Manager did indeed have authorization to sign the lease with Verizon Wireless.
At the February 5, 2013 City Council Meeting, Sheila Grist asked that the Verizon Wireless Lease item be pulled from the Consent Calendar.
The ruse was up. Mayor Long pulled the ratification of the Verizon Lease from the Consent Calendar. At the April 16, 2013 City Council meeting Staff brought back the Verizon Wireless Lease as item 9C. Approve the Lease Agreement with Verizon Wireless For A Cellular Tower at Pinole Valley Park [Council Report No. 2013-34; Action: Approve Resolution and Lease per Staff Recommendation (Allison)]. By this point Matt Bielby, Valley resident, who had been present at the March 23, 2013 Planning Commission, started a door to door campaign and had gathered up a handful of residents and organized a protest complete with signs and everything for the April 16, 2013 Meeting. Item 9C was pulled and no action was taken on the Verizon Cell Tower Lease. Once again, at the May 7, 2013 City Council Meeting Staff brought back the Verizon Cell Tower Lease for Ratification as item 9C Ratify the Lease Agreement with Verizon Wireless For A Cellular Tower at Pinole Valley Park [Council Report No. 2013-44; Action: Approve Resolution and Lease per Staff Recommendation (Espinosa / Allison)] CONTINUED FROM APRIL 16, 2013. Once again, the Tower Topplers were present and protested before the Council and, once again the Verizon Wireless Lease issue was continued to the June 4, 2013 Council Meeting as a closed session item 3A CONFERENCE WITH REAL PROPERTY NEGOTIATOR - GC §54956.8 Property Location: Pinole Valley Park - APN: 360-210-002Pinole CA 94564 Agency Negotiator: Belinda Espinosa, City Manager & Dean Allison, PW Director Under Negotiation: Verizon, LLC - Lease Price & Terms At this juncture, June 4, 2013 Council thought that they could appease the opposition to the Verizon Cell Tower in Pinole Valley Park by just re-negotiating the terms of the lease. Many on the Council were unhappy with the “Monopole” and were adamant about the faux tree concept and thought that they could kill two birds with one stone. Council negotiated an additional $200 per month on the already low $2000 per month, the faux tree, and a few other minor concessions. Wow, yippee! At the June 4, 2013 the vote to Ratify the Lease item 9C was once again continued to the June 18, 2013 City Council Meeting. 9C Ratify the Lease Agreement with Verizon Wireless For A Cellular Tower at Pinole Valley Park [Action: Continue to June 18, 2013. (Espinosa / Allison)] By the time that the June 18, 2013 City Council Meeting rolled around, the Tower Topplers were a force to be reckoned with. By this juncture the group was about 50 residents strong and showed up in force at the June 18, 2013 City Council Meeting. Along with the people that showed up to speak at the meeting, a signature petition along with a MoveOn.org petition was in full swing. Well in any event in front of a packed house the Pinole City Council Voted 4-1 to NOT ratify the Lease with Verizon Wireless. The only dissenting votes was Councilmember Swearingen;
Mayor Pro-Tem Banuelos and Councilmember Swearingen were extremely confused with the negative vote. The motion which was provided by Councilmember Green was to not ratify the Verizon Cell Tower Lease in Pinole Valley Park despite the issue being brought back by City Manager Espinosa and Public Works Director Allison in the affirmative.
9C Ratify and Approve An Amendment to the Lease Agreement with Verizon Wireless, LLC For A Cellular Tower at To Be Located at Pinole Valley Park [Council Report No. 2013-68; Action: Adopt Resolution Per Staff Recommendation to Approve the Lease Agreement (Reyes/Allison)] The victory was short lived because Verizon came back to Council Meeting on July 2, 2013 as a closed session item. Immediately following the closed session Council voted to bring back the Verizon Lease under threat of Litigation by Verizon Wireless. The vote taken to reconsider the Verizon Lease was a 4-1 vote with Councilmember Green being the only dissenting vote. The motion was put forth by Pete Murray and seconded by Mayor Pro-Tem Banuelos. The City Council brought back the Verizon during Closed Session on July 16, 2013 under 3A CONFERENCE WITH LEGAL COUNSEL- ANTICIPATED LITIGATION Pursuant to GC Section 54956.9(d)(2) (1 Matter) Verizon Wireless. And at the same meeting Council brought back the Verizon Lease as 9C Reconsideration of the City Council June 18, 2013 Action Related to Ratification and Approval of an Amendment to the Lease Agreement with Verizon Wireless, LLC For A Cellular Tower at To Be Located at Pinole Valley Park [Council Report].
On July 16, 2013 a day that will live infamy, Council voted to ratify the Lease with Verizon Wireless. The vote was 3-2 with Mayor Long and Councilmember Green in the Nay column. Verizon Wireless also attempted a very weak and not statistically significant phone campaign and had the audacity to present the results at the July 16, 2013 City Council Meeting. Basically, Verizon asked their wireless customers if they wanted better cell coverage without offering a NO option.
This is basically equivalent to asking an arsonist if they want to go see a big bon fire. I say in infamy, because little did Council know that by making this historic reversal, they were setting themselves up for utter and dire failure.
While, Councilmember Swearingen, Mayor Pro-Tem Banuelos, and Publics Works Director were yakking it up at Mel’s Diner, with comments like, “We showed those guys who runs this town”, amongst other trash talking comments, the Tower Topplers were not happy with the vote. During an all out brain storming session, the Tower Topplers had identified a possible path to keep the Verizon Cell Tower out of the Park.
Two members of the Tower Topplers had contacted the California Departments of Parks and Recreation and had spoken to a Christelle Tallion. Christelle assured the individuals that the location of the Cell Tower site was on land purchased by the City of Pinole with funds obtained in the early 1970’s offered by the Federal Government to the States to distribute and to enforce. The one caveat that came with the monies was that the land purchased with the funds provided by the Congressional Open Spaces act of 1965 was to be “used for outdoor recreational use only in perpetuity”. Well, well, well, it looked like the Tower Topplers were onto something. Christelle Tallion attempted to contact the City of Pinole on numerous occasions and each time she was rebuffed by City Manager Belinda Espinosa and Hector De La Rosa. Christelle took it upon herself to do a 5 year site visit since she had not visited the Pinole Valley Park in ten years, so a visit was due. Christelle Tallion came and toured the proposed cell tower location and found that it would be out of compliance with the Open Spaces Act of 1965 which had provided the funding to purchase the lands if it were to be built. Not only did Christelle determine that if the Verizon Cell Tower were to be built it would be a violation, she also discovered that Fire Station 74 had not gone through the proper conversion process as required by the Congressional Act and immediately determined that the City of Pinole was in violation of the Open Spaces Act of 1965 whose enforcement falls to the State of California. Christelle put the Pinole Valley Park in the classification of “Conversion”. This has huge significance for the City of Pinole because it has been determined by the City Manager of Pinole, Belinda Espinosa, that while in conversion the City of Pinole is of:
(1) Not able to apply for California State Grants while in conversion,
(2) Not able to apply for Federal Grants while in conversion,
(3) Possibly not able to borrow the $24 Million loan from the California Low Interest Rate Revolving Fund to Upgrade the Sewer (Alternatively the City would have to go to the open bond market and get a higher interest loan that citizens will have to pay for), and
(4) Possibly needing to repay the Federal Government for the two SAFER Grants that were awarded to the City of Pinole in December of 2012 (Technically only the $1.2 Million grant is a SAFER Grant, whilst the smaller $65 Thousand dollar grant is an equipment grant and will be used to buy a new water hose, however both are FEMA Grants). In any event, the City Council had a special 9/11/2013 Cell Tower Workshop to address all of the Citizens’ concerns.
This was the biggest Dog and Pony show that I attended since I was a kid and went to Barnum & Bailey. While at the meeting it became obvious that the presentation and the Staff Report had been prepared by City Attorney Reyes. It was full of legalese, guarded and plain outright fraught with blatant lies. Ironically, City Manager Belinda Espinosa broke ranks with Council and Staff and admitted for the cameras that she did not have authorization to sign a lease with Verizon Wireless on December 12, 2012 despite the first Slide of Mr. Reyes PowerPoint presentation asking the Billion dollar question, “Did the City Manager have Authorization to Sign the Lease with Verizon Wireless?” This was followed by the succinct answer, “Yes.” The first bullet point was a flat out pokerfaced lie. I guess the succinct answer makes it a little lie, but then again it is still a big freaking whopper.
Now at the time, September 11, 2013, Staff and the Majority of the City Council were in complete denial about something that the Tower Topplers had understood since the beginning of August.
This is that the City had screwed the pooch when they decided to let Verizon dictate to them where they wanted to put the Cell Tower. Eventually, the City Council and Staff woke up and realized that they were in quite a predicament with Verizon threatening to litigate on one hand and the State of California Department of Parks and Recreations reading the City the Riot Act. So what does the City do? Follow Verizon’s lead of course.
Paul Albrittion, lead attorney for Verizon comes to the Pinole City Council Meeting on October 15, 2013 and meets with Council in closed session, encouraging the City to enter into a 60 Day Tolling Agreement with Verizon. Verizon promises to not apply for any building permits and the City promises to not rescind the lease and neither party can litigate during the “Cooling off Period”. Council votes for a 60 Day Cooling off Period. No Tolling Agreement just a cooling off period. Well December 17, 2013 rolls around, officially ending the 60 day cooling off period and City Attorney Ben Reyes provides a 1.5 page Staff Report on the Verizon Cell Tower with absolutely no new information. And what did this 1.5 page report cost the Citizens of Pinole. While I am sure it has cost the City much more than the fees that Meyers Nave has charged; here are the numbers taken from the Warrant Lists. Yup, we got 1.5 pages for $25 Thousand Dollars. Amazing! Warrant List DateAmount10/1/13 – 10/11/13$1,241“$2,27910/12/13 – 11/1/13$14,62811/22/13 – 12/13/13$6,941Total$25,089 Well, not to be outdone in 2013, the City Council also instructed City Attorney Ben Reyes to enter into a Tolling Agreement with Verizon while Verizon finds an alternative place in the valley to put their cell tower. Council nor Staff have reported out the terms of the Tolling Agreement but based on the fact that Verizon will need to first find a suitable location (Either rent from a private citizen or purchase a property), Apply to the FCC for a license, undergo CEQA, undergo NEPA, and obtain a Conditional Use Permit, it looks like 2014 will be another stealth year for the Pinole City Council. Attorney Ben Reyes says the Tolling Agreement could be for 6-9 months. But wait there is more; after the Tolling Agreement expires Verizon will be free to sue the City of Pinole for the damages it incurred, $350 Thousand. Unless, the City has a “wink and a nod”, i.e. quid pro quo back room deal with Verizon to walk away from the $350 Grand if the City helps Verizon put a tower in our pristine valley.
Life as I Know It