Commentary: Torturous Site-by-Site Evaluation Process Consuming Tremendous Time and Energy

Crown-Castle-2The council spent another nearly five hours going over the proposed locations for the Crown Castle communications array.  The process was slow, arduous and painful.

The type of discussion that was taking place seemed much better geared for private negotiations that could then be brought back to council for final approval.  But according to representatives to Crown Castle, this occurred after lengthy negotiations reached very little agreement.

Both sides seemed frustrated with the other, with Crown Castle believing they had gone to great lengths to accommodate the city while the city believing it was bending over backwards trying to get Crown Castle to give just a little.

Councilmember Dan Wolk, in contrast to his colleagues and legal staff to the city, believes that the issue is more complicated legally than many think.

A number of other communities have been much more aggressive and willing to challenge Crown Castle and other entities on these types of matters.  However, the City of Davis and the city council is concerned with finances right now, and believe that legal battles would not be worthwhile in the face of deep cuts already expected this June.

Moreover, others note that the city is already expending hundreds of thousands in attempting to fight off a lawsuit over DACHA (Davis Area Cooperative Housing Association) and that makes council and legal staff less willing to authoritatively assert their rights.

Our perspective on this remains roughly the same as it has been.  We view this largely as an issue of local control and would prefer that the council and the community make the determination about whether this is the time and these are the places needed for a DAS communications system, rather than a private entity, backed by state and federal laws pushed through at the behest of monied interests.

Moreover, we find the notion of a gap in coverage a bit ludicrous.  On the one hand, Crown Castle, at the behest of Metro PCS, is arguing that there is a gap in coverage which necessitates the need to upgrade their communications system. On the other hand, Metro PCS continues to list Davis as having the best coverage.  As someone might say, they cannot have it both ways.

Our biggest concern is the inordinate amount of time and money being wasted on this.  We have now seen three council meetings largely devoted to this issue in the last month and there will be another meeting, likely in early to mid-May, that will likely be devoted to this as well, as both sides have agreed to extend the deadline yet again and hammer out their remaining differences on specific sites.

Here we are facing a budget crisis in this community, and yet the staff and council time will not be devoted to that issue in as much detail as it has been to the issue of where to put cellular devices on top of existing infrastructure.

Council believes they need to create a public record to avoid potential legal issues down the line, but we are at the point where we think the council is picking at nits.  The central issue should not be where the devices end up going, but rather who gets to make these choices for the community.  If we were going to expend this amount of effort it should have been for something far more fruitful and far less painful than this.

It seems that in the future, the council might have considered grouping the sites together into similar issues that could be discussed jointly.  That might have expedited the time.

One of the problems we have with this process is that the level of detail of these discussions involves not just picking the location but the type of technology used.

So we take a random quote from Rochelle Swanson to illustrate this point: “I understand it would be a savings upfront for you guys to put the Omni on there versus the other, but I wouldn’t want the unintended consequence that we’re going to have side-mounted antennas…”

With all due respect to the council and their efforts, this is not something I want to hear from a councilmember on the dais.  The council should be directing policy, not micromanaging a project on the dais on a site-by-site basis.

The problem with the whole process is illustrated by the comment made by Stephen Souza with regard to site 25 – a site that the council found very problematic but there was no public comment about it.  In fact, the council even asked if it had been properly noticed.

Said Councilmember Stephen Souza: “Even though there hasn’t been any public comment, I think this goes against everything that I have been trying to avoid.  It is exactly right in front of someone’s house.  We don’t know if that party had received notice or not.”

“They had notice sent and we don’t know if they received it,” he continued.  “We don’t know if at some later date and time after that pole is erected that they won’t be before the council complaining that it was done.”

“I can’t support this location,” he said.

The point here is not to single out either Councilmember Souza or Mayor Pro Tem Swanson, rather it is to question the process itself.

We understand that council wants to create a public record, but we think it would have been more fruitful to develop a more systematic approach. This could include the council laying out principles, the staff recommending specific locations and sites, opening the public hearing, allowing for public comments and then grouping the sites by those that are largely acceptable, those in the gray area and those completely unacceptable.

Litigation obviously is something they want to avoid.  Critics think that the council could have fought this harder. Certainly the idea that they should micromanage highly technical details is wrongheaded and a waste of not only staff and council time, but the public’s time as well.

And we are still not done.  And there is still no guarantee that the council can avoid litigation.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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14 Comments

  1. JustSaying

    And, do we still believe one (and only one) council member shamelessly plays to the crowd on this issue?

    If Harriet is correct–and no one has claimed such a condition lately–why would forcing site-by-site decisions that the company doesn’t want change the lawsuit threat?

  2. David M. Greenwald

    I believe the thinking is that if they set up rules and are consistent under their own Telecom Ordinance, they can defend it in court. Whereas they believe that denial would be a sure loser.

  3. JustSaying

    I thought the argument was that we didn’t want to spend out tax money in the courtroom. Apparently we’re willing to waste our city council–as you’ve reasonably pointed oun in this story–in some questionably effort to make Harriet’s task easier when we do go to court and win.

    I do think you Dan Wolk an apology for your blistering account of his council meeting decision. (Maybe Sue also if you didn’t characterize her opinion correctly.) Shouldn’t your Profiles in Courage account of the other four’s “tough decision” should be tempered by their pandering in these case-by-case fights?

  4. Michael Harrington

    Dan, if you have legal authority for your NO position, please share and we can see if the rest of the CC can be nudged out of their fatalism caused by the City Attorney’s advice.

    BTW, I read the City Attorney’s legal memo in the last meeting’s packet. It read like it was prepared by a law clerk mostly paraphrasing various court decisions. There was little in that memo that shed light on how the City can respect local control and the views of its residents and also win in Court.

    Her December 2011 memo calling the water referendum unconstitutional also read like it was written by a law student.

  5. Rifkin

    [i]”I do think you Dan Wolk an apology …”[/i]

    Really?

    Dan is a lawyer. Not just that, he works as a lawyer for a local government. Where is [i]his legal argument[/i]? Unless I missed it, where did Dan challenge Harriet’s interpretation of our legal standing? What case law or statutes has Dan sided? Am I wrong to think that his words (paraphrasing) were simply, “I don’t like this process. It’s not the right thing. I vote no.”?

  6. E Roberts Musser

    This was a difficult situation for all concerned. I believe Council member Wolk did give some legal rationale for his vote, after Council member Greenwald pointedly prodded him into it. It is a difficult situation, with no real good way to accomplish the task other than an arduous one-by-one site assessment in public, giving citizens plenty of opportunity to voice concerns about each and every site…

  7. Sue Greenwald

    I didn’t hear any legal rationale for successfully denying the entire project, which was the issue under discussion. We all denied some poles on a case by case basis.

    I heard no argument that we would not run a substantial risk of having the first, objectionable plan that was put forward by the company imposed upon us if we denied the entire project.

    I have no reason not to trust our city attorney and her colleague, Joe Van Eaton, who is a major national player representing city interests, on this issue. These attorneys helped craft our existing ordinance, which pushed the package of local control and helped get us on a national list of naughty cities chastised for impeding cell phone towers.

    It is in the financial interest of our attorney and her firm to have us fight this all the way to the supreme court. When we take things to court, they are the ones that make the money.

    As much as no one likes to deliver bad news, the fact remains that if we denied the whole project, we would run a significant risk of having many more antennas adjacent to bedroom windows and more 40 foot poles directly in front of peoples’ homes.

  8. Rifkin

    [i]”I believe Council member Wolk did give [b]some legal rationale[/b] for his vote …”[/i]

    I did not hear it. It’s possible I had SDS* at the moment he cited case law to defend his vote.

    *Sudden Deafness Syndrome, normally associated with not hearing your spouse when hearing her would result in a long, pointless argument.

  9. E Roberts Musser

    I thought I heard, after being prodded by Council member Greenwald who insisted he should justify his stance, Dan Wolk give some legal rationale indicating other specific cities had had some success in getting more concessions from such companies as Crown Castle. Obviously I would have to actually review the videotape to determine what was actually said word for word, but that was my impression. Of course Dan can also speak for himself…

  10. E Roberts Musser

    [quote]*Sudden Deafness Syndrome, normally associated with not hearing your spouse when hearing her would result in a long, pointless argument.[/quote]

    LOL 😉

  11. JustSaying

    “I do think you Dan Wolk an apology for your blistering account of his council meeting decision. (Maybe Sue also if you didn’t characterize her opinion correctly.) Shouldn’t your Profiles in Courage account of the other four’s “tough decision” should be tempered by their pandering in these case-by-case fights?”

    [quote]“I do think you Dan Wolk an apology …”

    Really?

    Dan is a lawyer. Not just that, he works as a lawyer for a local government. Where is his legal argument? …[/quote]Rich, I wasn’t commending Dan Wolk’s legal argument, just criticizing David’s excessive descriptions of Sue’s and Dan’s supposedly unreasonable behavior at the council meeting. Particularly since the whole gang appeared in full grand-standing mode for five hours in this report.

    I’m not sure even a lawyer is obligated to cite cases if he thinks something is “just plain wrong.” Lots of civil disobedience going on in Davis these days. And, David would even be fully supporting Dan “in better economic times.”

    But, some justification really should be offered when using the following language in labeling an elected official unprincipled and politically expedient:[quote]“While Sue Greenwald felt the best approach was to make it as difficult and onerous as possible, Dan Wolk got to play to the crowd, arguing that he would be willing to stand up for the city’s rights.

    He said, “I respect where my colleagues are coming from, (but) for the reasons I stated last time, I’m going to be voting no on this. For me it’s just a matter of principle and a matter of local control.”

    But did Mr. Wolk respect his colleagues views, as he suggests? One could argue he put them in an impossible position. One of the public commenters even praised his courage.

    But this wasn’t courage. It was pure political calculus on his part. Courage is making the tough vote, even when it is unpopular. This is a free vote for him. He gets to grandstand and play to the crowd. Why?

    Because he knew that he would be the one vote against moving the project forward. And so long as he was going to be in the minority, it’s a free vote for him. He gets to be righteously indignant while at the same time knowing that he faced no legal jeopardy because his colleagues would not allow that to happen.

    In the process, he showed up both Stephen Souza and Sue Greenwald, who had to cast the tough vote rather than risk costing the city hundreds of thousands in legal expenses, risk losing whatever say the city might have in terms of time and place restrictions, and most importantly, risk the jobs of city employees.

    In principle, in a perfect world, in a better economic time, we would be right behind Dan Wolk on this. But not now. This is not a vote for courage, this is a vote for political expediency that has no real consequence, because no one was going to call him on it.”[/quote]

  12. David Suder

    [quote]Dan is a lawyer. Not just that, he works as a lawyer for a local government. Where is his legal argument? Unless I missed it, where did Dan challenge Harriet’s interpretation of our legal standing? What case law or statutes has Dan sided?”? [/quote]Exactly. Given his profession, Wolk can’t reasonably claim that he didn’t understand what he was voting on (as he did in the case of his Prop 218 water rates vote). If he has a reasonable legal analysis that actually represents his best legal judgment, it’s time to show it. Otherwise, it is reasonable to conclude that he is full of hot air.

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