Walnut Creek Cell Tower Site Controversy Continues

Buena Vista resident Liz Menkes wants explanations from Mayor Cindy Silva and other city leaders.

When the city addresses the proposal to install a cell phone tower at St. Stephens Church at next Tuesday's City Council meeting, Menkes and other Buena Vista residents are hoping to have many questions answered. 

“This issue has been going on for over a year and a half,” she said. “From the beginning of this process, we have asked for a truly independent review of alternative solutions to insure that the cell tower is placed in the least intrusive location, but sadly, that kind of independent evaluation did not occur. “

AT&T has proposed building a 20-foot antenna on a knoll on the property of St. Stephen's Church. Buena Vista neighbors would rise about 100 feet from nearby homes.

Menkes and Mardi Veiluva lead a Buena Vista neighborhood group and believe city leaders have been biased in favor of ensuring the cell tower is approved at that location regardless of opposition from the neighborhood. In a document provided to Walnut Creek Patch by Menkes, she outlines a list of ways that staff and city leaders have shown favoritism to AT&T.

In November, a planning department employee told Menkes that then-City Attorney Paul Valle-Rietsra was “adamantly opposed to hiring Center for Municipal Solutions (CMS).” According to Veiluva, CMS, based in North Carolina, has a track record of giving cities full control over where cell towers are sited.

“If someone wanted the cell tower approved, then this particular firm (CMS) could not be hired under any circumstances because the council would be told if there was no significant gap, and the city is in no legal obligation to grant the permit — and that is different than what the city attorneys believe,” said Menkes. “This firm (CMS) is the wireless industries’ worst nightmare because they give cities back control over where cell towers are sited.”

Buena Vista residents are concerned the planning department followed Valle-Riestra's recommendation not to hire independent consultants to verify anything other than radio-frequency emissions. The residents were hoping the city would hire a third-party consultant to investigate alternative locations for a cell site besides a residential zone.

Menkes said this policy played a role in the city hiring an independent consultant firm that favors the wireless industry. The residents also have expressed concerns about the legal department misrepresenting the law to the neighborhood.

She added that neighbors asked City Manager Ken Nordoff about the panel meeting for selecting a consultant in early March. They wanted to attend, but Menkes said they were told the panel meeting was only about making recommendations, not about making decisions. However, Menkes and Veiluva learned the decision was made at the meeting without any council approval or input from the neighborhood.

“We are not let into a meeting where they are meeting with consultants,” said Menkes. “The city of Walnut Creek is not requiring AT&T to prove they had researched alternative locations or the least intrusive solution. There is not even a preference for commercial over residential in the zoning.”

Neither Mayor Silva nor Nordhoff returned calls for comment.

Assistant City Attorney Bryan Wenter disagreed that the neighborhood was excluded from offering input in the process of hiring the independent consultant. He said a city planner sent out a request to a distribution mailing list, asking for input on consultant recommendations.

After gathering 14 responses, senior city staff officials made a unanimous decision to hire Jonathan Kramer of the Los Angeles-based Kramer Firm Inc.

“The consultant we selected had a terrific reputation among cities in California and is highly qualified to do the work he was hired to do,” said Wenter. “He is highly experienced in handling these issues in California and cities up and down the state have used him. He came highly regarded and has worked in Walnut Creek before and has a reputation for the work he has done previously.”

Veiluva said Valle-Riestra, who died last month of cancer, had a telecommunications background and wrote papers explaining that cities were pre-empted by federal law, meaning they are not able to weigh in on the application process.  She said the law Valle-Riestra cited to decide on granting applications is an outdated law that is more favorable to the wireless industry.

“We started noticing that it was a political issue, “said Veiluva. “If your city wants to limit the towers to the places that they want in their communities, they can do so as long as they don’t limit the service. They can't favor one company over the other, but they can guide it to where it should be placed and our city was not doing that.”

Wenter disputes this argument and said there are a number of cases that have come out of the 9th Circuit Court, which has federal jurisdiction in California. The city has looked at several laws from the past few years that address these issues.

“We are not looking at one law to the exclusion of anything else and we are not looking at anything old without looking at the relevant law,” said Wenter. “There are several cases in the last five years that apply to this situation and those are all relevant to the way in which we are handling this application.”

Because the city application process is dealing with federal, state and local law, he said the city is looking only at compliance issues. "We simply want to get the project and the legal issues correct."

Rusty Monroe, co-founder of Center for Municipal Solutions, explained that every applicant proposing a cell site should be required to prove to cities that there is no other reasonable alternative to the selected location. He said that, under the 1996 Telecommunications Law, any alternative would “prohibit” the provision of service.

Monroe said the issue is where and how the cell sites are placed. This is "so that the residents do not have to worry about the sites' visual or aesthetic impact changing the nature and character of the neighborhood or about housing values, and (so they know the sites) are designed and constructed to be safe.”

He said it is rare for a wireless company to say that only one location will work for the geographical coverage the company needs to be in compliance of federal laws.

“There is always a technical alternative to placing cell sites on towers and technically speaking, the service will work,” said Monroe, who was one of the candidates during the consultant selection process. “The question is, is it cost-effective for them (the wireless industry), because of the amounts of revenue generated from wireless sites, the federal law does not require local officials to consider cost. They can attach sites to street poles, billboards, houses, buildings, silos and virtually anything — and the service will work. The industry will find the most economically advantageous location to get the biggest bang for its buck.”

In the Adirondacks of New York, a city managed to disguise a cell phone site. Monroe said the Adirondack park agencies asked this cell phone company to disguise this site as a pine tree; it was hard to distinguish real trees from fake ones.

Another strategy for causing less of a visual impact with antennas is to place them on the fascia of a building rather than on the rooftop, matching the color and the texture of the building so that they are undetectable. This prevents what’s known as the "porcupine effect" and eliminates any RF emissions on the rooftop.

Wenter said the city is weighing a complicated list of factors when reviewing the application, not just the aesthetics.

“All these issues and more will all be clarified in the staff report and other supporting documentations that will be released later this week,” he said. “The city has been presented with an application from a wireless provider and we have been processing that application in accordance with a complicated array of federal, state and local laws. We must process the application in accordance to those laws.”