By John Earl
Surf City Voice
An unruly full-house crowd got its way—for now—during the Aug. 31 City Council meeting when six out of seven councilmembers put legal risks aside and revoked permits previously given for two T-Mobile cell phone towers in separate parts of the city.
The victory came after many passionate speeches by the agitated activists—demanding that the City save their children from the [yet to be proven] harmful effects of the proposed radio towers’ emissions—and after some equally passionate election-time pontificating by their elected representatives.
But T-Mobile, which like other cell phone corporations is undergoing similar plebeian revolts in other American communities, has already won one related court battle against the City and any further challenge to its right—under the Telecommunications Act of 1996—to build cell phone towers will be a battle against odds that favor the industry that helped to write the federal law.
Section 704 of the Act, which pertains to cell phone towers, was ostensibly written to increase competition and improve customer service by updating the Act’s original 1934 version, but it has served the purposes of the telecommunications industry well, allowing it to exploit the rapidly growing popularity and “need” among Americans for wireless services with few obstacles from government regulation to overcome.
Under Section 704, permit denials cannot be based simply on the fact that a city’s residents don’t want the cell phone towers in their presence. Cities are allowed to regulate cell phone tower construction with respect to aesthetics and—to some extent—location, but may not deny permits based on the alleged health hazards of radio emissions—the main reason given by local residents for their opposition to the towers—and must have good reason, such as lack of need, explained in writing within 150 days.
Things started out quietly when the two fifty-foot plus towers, designed to look like palm trees so that they would blend in to their natural surroundings, were officially permitted by the City’s planning department without a public hearing in 2007 for locations at Bolsa View and Huntington Harbor Garden parks at 5741 Brighton Drive and 16600 Saybrook Lane respectively.
In granting the permits, city planners agreed with T-Mobile that the two designated locations were the least obtrusive and only feasible sites for the towers, that they were compatible with their respective park environments and that they would “eliminate a significant gap in mobile telephone [indoor and in auto] coverage.”
A license agreement between the City and T-Mobile was created in January of 2009 and approved by the current city council 7 -0.
But when T-Mobil’s shovels hit dirt at Harbor View in April of last year, area residents came to the site to object. “Eventually, the objections gave way to serious protests and the residents physically obstructed Plaintiff’s access to the site with their bodies and vehicles,” according to the case summary written by U.S. District Judge R. Gary Klausner for his July ruling on a lawsuit filed against the city by T-Mobile.
At the City’s request T-Mobile agreed to temporarily halt construction.
Caught off guard by opposition from the residents, the city held a public meeting on April 23 to hear its concerns. Two hundred residents showed up and “did not allow Plaintiff’s representatives to voice their opinion,” Klausner wrote.
Still hoping to escape a growing political quagmire, city staff once again got T-Mobile to agree to temporarily stop construction.
But on the next day city planners asked the company what the total cost of building each tower would be, including the antennas. When applying previously for building permits, T-Mobile had reported a “total construction value” of $80,000 for each site, but now the company was saying the “total construction cost,” including the antenna would be an additional $200,000.
With that new disclosure, city planners thought they had found an escape hatch, Section 612 of the City Charter, which requires voter approval of any park project construction costing more than $100,000. T-Mobile was told it would have to wait for the results of the ballot measure this November before proceeding.
At that point, however, City Attorney Jennifer McGrath still recognized the validity of the permits and licenses given by the City to T-Mobile. In a letter to company officials, McGrath stated that “Despite the protests, the City continues to recognize the validity of the Site License and the Wireless permits,” but pending the outcome of the public vote, “I have directed that both building permits be suspended until voter approval can be obtained.”
But T-Mobil sued and, in July, Judge Klauser ruled that the Section 612 vote could not be used to stop the company from building its cell phone towers. Noting that the company had given the City incorrect information, he allowed the City to consider the permits again and make a new decision within 60 days, explaining its reasons, backed by “substantial evidence,” in writing as required by the ACT, if it decided to deny the permits.
City staff then hired an outside attorney, Jonathan I. Kramer, to examine T-Mobile’s previous claims that it would suffer a service quality shortfall for indoor coverage in both areas unless it could place a cell tower in each park location.
Kramer’s report concluded that there were no significant service gaps in those areas, that wireless carriers generally make arbitrary signal strength evaluations due to lack of federal guidelines, and that, in any case, alternative sites were available.
Those findings were part of a staff report available to T-Mobile and the general public 72 hours prior to the meeting as required by law. Staff recommended that the permits be revoked based on the Kramer findings and the allegation, denied by T-Mobile, that it had given the city false information previously.
Other suggested findings, presented by the law firm of Rutan working on behalf of the residents, also made their way to the city council, but not until after meeting had started.
Even though neither side had more than minutes to look over the last minute legal document, three of its findings were adopted by the council as reasons for revoking the permits.
In summary, the selected findings concluded that: T-Mobile’s permits had expired anyway because it had not acquired a license within the allotted time, even though planning staff disagreed with that assessment because it, not the company, had caused the delay; that the permits had been issued by staff without legal authority because they were issued prior to the company obtaining leases for the towers; and, that even though staff were responsible for the administrative errors, T-Mobile’s “misrepresentation of facts” during the application process and the City’s obligation to the residents outweigh any obligations it incurred to the company previously by leading it to believe it was involved in a legitimate process.
With seemingly contradictory logic, McGrath and her staff dropped their previous finding that the permits were valid supported Rutan’s findings, even while stating “We don’t think we messed up, but it’s certainly within the council’s discretion to conclude otherwise.”
If that complex web of “legalese” was too much for T-Mobile attorney John Flynn to digest on such short notice, as he protested in vain , to the council, it scarcely could have been understood in such a short time, if ever, by the members of the council, whose spur of the moment use of it seemed to be a cover for the health issues raised by the residents, issues that have no legal standing but formed the real basis for the 6-1 vote in favor of revocation that was obviously a foregone conclusion.
T Mobile’s attorney John Flynn said although Kramer came up with different conclusions, he did not dispute T-Mobile’s statistics about the quality of service, adding that the company provided all the information it was asked for by the city throughout the process.
When his 6 minutes of speaking time was up before he had made his complete response to the Kramer report, Flynn felt he wasn’t being treated fairly. “On due process grounds alone, I am expressing my strenuous objection to the way that this has been handled tonight and the lack of my full ability to defend these permits before the council.”
But other T-Mobile officials, as well as Flynn later on, had their say even if the hooting crowd and the majority of the council acted like they were predetermined not to accept its conclusions.
T-Mobile tech spokesperson Daniel Wang claimed that Kramer’s report indicated a signal reception level equal to what the company’s own study found, but at a level that indicated too short a range for providing quality indoor service. He claimed that over 5,000 calls had been dropped by T-Mobile in July in the two service areas in question.
Although the Kramer report asserted that the Huntington Harbor Mall, located at the corner of Warner and Algonquin streets, was a feasible alternative site for the Harbor View park tower, an attorney for the mall told the council that “It is not a foregone conclusion that the landlord is willing to locate the tower at the mall. We want to talk to our tenants and to all the residents around the neighborhood to see if that’s what they want…”
As the council audience indicated with their jeers, no location would likely be suitable to the area resident; certainly not after that night’s city council meeting, as Councilmember Don Hansen pointed out to affirmations from the audience.
In any case, Flynn noted, the Harbor Mall site doesn’t meet the in-building coverage need. “In all the time that we’ve been going through this litigation,” he complained, “we have not been presented with one available and feasible alternative.”
Hansen, the only no vote, fully acknowledged the crowd’s dislike for the cell towers and that there is a need to find more palatable yet still legal process for handling cell tower permits. But he alone dared to bluntly tell the angry audience the hard facts.
“When the facts are put before an impartial party, the facts and the process, my prediction is that we will have violated significant elements of our own codes and our own process will be deemed illegal,” he said. “And that is bad government and a waste of resources.”
Bad government may waste taxpayer resources, but it can also help win elections. Obviously smelling blood, Councilmember Joe Carchio, whose troubled reelection campaign could use a boost, jumped first to make the motion to revoke the permits and then slammed some crowd pleasing volleys at Flynn.
“So, then you basically…you didn’t care at all what the community thought or the residents, you were just going to go in there and you were going to do that—because you could,” he asked Flynn.
Flynn bristled at Carchio’s “terrible over simplification and very unfair characterization” and asked, “Do you honestly believe that there’s some kind of fun involved in building facilities that are unnecessary?”
If an agreement is reached between the city and T-Mobile soon, the court will decide in November and the City will mostly likely suffer the costs of its own legal mistakes.
Councilmember Devin Dwyer said that the legal risk to the city, which he put at 50/50, is worth it to defend the peoples’ rights. “I see it as more important to stand up for the rights of those who live in that area and will be affected by this,” he told the Voice after the meeting.
Hansen sees the vote as a “costly flip-flop” that will bring the city emotional and financial pain. “I ultimately believe our decision will be deemed illegal and we will be right back where we started.”