This is a lengthy post that provides some background and context regarding the cell tower fight in Palos Verdes Estates. We hope readers find it informative.
In late 2014, Crown Castle approached PVE regarding 22 new cell towers in the City for ATT. Up to this point, the entire City had been served by about half a dozen ATT sites. It was not explained, or seemingly even questioned, why the City needed a 350% increase in the number of cell towers. Planning Commission hearings started in October 2015, and by January ten had been approved. As of 7/5/2016, only one new site has been approved since then. The approval process has clearly stalled.
Approved sites shown by dark blue dots, proposed (not approved) sites shown by light blue dots. Note most of the remaining proposed sites are in the heart of residential neighborhoods. Source: Crown Castle
So why the change? Well, a number of reasons but the foremost is a striking difference in the Planning Commission’s demeanor in recent months. The Commission no longer appears willing to simply accept they must approve sites based on Crown Castle’s vague claims sites are “required”. The Commission had been led to believe that they had no ability to question any aspect of Crown Castle’s proposed deployment beyond the appearance of an individual site. Their thinking has clearly changed.
There are likely many reasons for the sea shift, but here’s our take:
- The “easy” ones went first – It looks like Crown Castle’s game plan was to have a few relatively unobtrusive sites approved to get the process running on autopilot. It didn’t work as the remaining sites are highly intrusive, in the heart of residential neighborhoods, and residents aren’t happy about it.
- None of the already approved sites are active – The Commissioners would rightly like to understand if coverage has significantly improved prior to approving any more highly intrusive sites. The fact that none of the approved sites are yet active is raising questions.
- The focus shifted to the big picture – Residents stopped playing by Crown Castle’s rules. No more fighting about which home gets stuck with the cell tower, but rather residents questioned the very need to place a highly intrusive site within their neighborhood in the first place. Residents exposed that Crown Castle had made no serious consideration of alternatives outside of neighborhoods.
- The process wasn’t followed – Residents also exposed that strict site justification and documentation requirements put in place after the City’s legal victory in Sprint vs. PVE weren’t followed by Crown Castle. These processes were put in place to protect the City’s aesthetics and the resident’s interests yet those tasked with evaluating the applications didn’t require compliance.
- Flawed documentation and moving goalposts – Residents further exposed that the coverage maps Crown Castle submitted included flaws and vague assertions that didn’t come close to demonstrating “significant gap”. Crown Castle’s attempts at correction have been ham-handed, confusing, and contradictory, with a stench of “bait and switch” tactics.
- Affirmation of the right to regulate location – Residents have successfully argued that the legal entitlement to regulate “least intrusive means” (federal law) and “time, place, and manner” (state law) includes the cell tower’s location. Seemingly obvious to those that have read the case law, the City had been somehow convinced that it didn’t apply.
- And most important, the City decision makers read the law themselves – Those advising the City had convinced the City Council and Planning Commission that they could only “pretty up” sites Crown Caste proposed. After urging from residents, the decision makers have clearly read the law themselves and concluded the City’s rights go well beyond what they had been led to believe.
It’s been an interesting evolution, to say the least. Residents owe a debt of gratitude to the Planning Commission and the City Council for their willingness to question what they had been told and their willingness to investigate and read the law themselves.
The entire approval process started with an air of Kabuki Theater. The “rules” were set up ahead of time by those who wouldn’t be stuck living with the results. Discussion would be limited to bickering over innocuous trivia such as pole color or cabinet placement. For all intents and purposes, residents near a site were expected to “take one for the team”.
Location discussions beyond moving the site a few dozen feet were off the table as Crown Castle deemed all such moves “infeasible” without providing a shred of evidence. “Solutions” consisted of moving the eyesore from in front of your house to in front of your neighbor’s house. Questions regarding site need were squelched by invoking vague legal generalities. All sites would be viewed in isolation without considering why two sites were “required” within 500 feet of each other (Upper Lunada Bay) or three sites within a 1000 yard stretch (Granvia Altimira).
It was a foregone conclusion; Crown Castle would get their 22 sites albeit with a few minor cosmetic tweaks to help placate local sensibilities. (The phase “throw them a bone” comes to mind.) A nice tidy, stage-managed process with a predetermined outcome.
Predictable and scripted, but not to resident’s tastes.
Residents refuse to play along
Fortunately, the Planning Commissioners are open-minded individuals that live in our community. Their willingness to listen to fellow residents and question the “rules” is truly appreciated.
What those who staged the show failed to appreciate is that Palos Verdes is a very unique place. Frank Vanderlip and famed architect Frederick Olmsted modeled Palos Verdes Estates after the beautiful cities of the coastal Mediterranean. They envisioned a community where aesthetics were the primary consideration of everything built in the City. In 1926, Mr. Vanderlip put it well:
“Supervised architecture is as much a function of community as supervision of traffic, health, and morals – for what a man builds we must all look at.”
In 1939, the community feared losing control of parklands to Los Angeles County. Despite strong regional and county opposition, the community incorporated to become the county’s newest city. In the face of naysayers, city fathers moved forward with a clear vision to protect their pastoral community. We’re sure they never imagined the future assault on the Public Right of Way now taking place. Fortunately, more recent city leaders did, and in 2009 they won the right to protect aesthetics in the Right of Way in the landmark ruling Sprint PCS Assets vs Palos Verdes Estates.
Frank Vanderlip at his desk (left). Fredrick Law Olmsted Jr. at work, planning the Palos Verdes project (right). Their vision is alive and well.
In a very similar fashion, Rancho Palos Verdes was founded to preserve local control over community development. In the early 1970’s, Los Angeles County was rubber-stamping huge apartment developments along the community’s undeveloped coast. in 1972, determined residents went all the way to the California Supreme Court and successfully overturned city incorporation rules that favored nonresident and absentee corporate landowners in Curtis vs Board of Supervisors. The city incorporated shortly afterwards and the high density coastal development was stopped. Later, RPV’s pioneering view protection and restoration ordinance was passed and successfully defended in court. The city’s residents have made clear that we zealously guard our quality of life, and will aggressively defend it.
RPV’s first City Council seated left to right, Marilyn Ryan, Gunther Buerk, and, Robert Ryan. Standing Left to right, Dave Ruth and Ken Dyda. Mr. Dyda is back on the Council and is currently mayor. He strongly supported RPV’s new wireless facility ordinance.
Residents of PVE and RPV know the peninsula’s history and don’t accept vague claims that we have to sacrifice our quality of life to accommodate moneyed interests, particularly those without a stake in our community. Our cities’ founders didn’t accept it and neither do we.
But even more important, peninsula residents are smart. The Hill is populated with savvy individuals who know when they are being fed a line of BS; they don’t like it, and happen to know a few things about the law and engineering themselves. Also, those of us with more than a few gray hairs long ago realized that those telling us we must behave a certain way likely have a vested interest in us doing so.
The law is on our side
Crown Castle and other tower installers are trying to normalize the notion of cell towers within residential neighborhoods. They claim they are no different from other community infrastructure, akin to fire hydrants. Of course that analogy quickly breaks down when one realizes fire hydrants aren’t placed 17 feet in the air and won’t be enlarged in the future under a barrage of legal threats. Once scrutinized, Crown Castle’s lofty rhetoric falls apart. These aren’t fire hydrants but highly intrusive commercial telecommunication facilities installed with the sole intent of making them money. Yet residents were supposed to suck it up and accept these eyesores along with the inevitable decrease in property values.
Photo simulation of a residential street (Via Rivera) cell tower proposed for Rancho Palos Verdes. The new normal according to Crown Castle, no different than fire hydrants or the corner mailbox.
They sorely misjudged the determination of Palos Verdes residents and our community’s spirit.
It’s likely the peninsula was targeted due to RPV’s virtually non-existent wireless facility regulations. Based on past history, RPV was probably seen as a slam dunk (with good reason, see this post here). Fortunately, the RPV City Council recognized the problems and swiftly passed the City’s new comprehensive wireless ordinance. Much of the ordinance was patterned after that of the City of Calabasas, a national leader in regulating intrusive wireless facilities.
Calabasas has already fought this battle and won. Recently Crown Castle sued in an attempt to overturn the Calabasas ordinance as they undoubtedly considered it a threat to their very lucrative business model. Crown Castle lost on virtually every count in the 2014 decision (link). Calabasas’ right to regulate site design and location, as well as require conditional use permits, was fully upheld. The court extensively referenced Sprint vs. PVE.
Cell sites within the City of Calabasas. Note near total absence of residential neighborhood sites. Calabasas has 24,000 residents, almost twice that of Palos Verdes Estates. Source: City of Calabasas
(Side note: We’ll likely put up a post on Crown Castle vs Calabasas 2014 soon as it’s quite entertaining. The court ruled Crown Castle didn’t have standing to sue as they neglected to transfer their authority to locate in the Right of Way from their previous entity, NextG. Talk about a facepalm. The entire ruling is in arguendo.)
PVE, on the other hand, had a national reputation for aggressively defending aesthetics. However, there has been a large staff turnover in recent years and the institutional memory seemed to have been lost. Inexplicably, staff and even City decision makers seemed to think important aspects of the City’s landmark victory (Sprint vs. PVE, 9th Circuit, 2009) no longer applied. It took a concerted effort from residents to convince City decision makers that Sprint vs PVE was still good law. Based on the excellent recent questions and comments for the City Council and Planning Commission, it’s obvious all members have taken the opportunity to review and reflect on it. PVE residents are truly grateful for this.
What happens next
Good question. Residents want better cell service but not at the expense of neighborhood aesthetics. Residents are willing to compromise but won’t accept sites within residential neighborhoods or close to homes unless Crown Castle demonstrates it is required to prevent an “effective prohibition” of service. This means that sites outside of neighborhoods are shown to be infeasible. Shown means a meaningful comparison with all assumptions and network parameters identified with a defensible rationale. Vague claims that alternates are “infeasible” or ridiculous and unsupported claims of excessively high “required” signal levels are unacceptable.
It also means that neighborhood placement is required to prevent a “significant gap” in coverage. In cases where the courts have found a significant gap, there are thousands of individuals with poor or non-existent service. “Significant gap” doesn’t guarantee perfect service in every home, as Crown Castle would like decision makers to believe. The target service area map supplied by Crown Castle shows many of the residential neighborhood sites proposed for PVE and RPV will serve fewer than a hundred residents. That is not a significant gap in our book, and we’re confident few courts would see it that way either.
Crown Castle must go back to the drawing board. Their proposed deployment appeared to simply carve the peninsula up into a big grid and then plopped sites right in the middle of each square. There was little regard for neighborhood character, intrusiveness, or impact on adjacent home values. Locations were likely picked by some engineer sitting in a distant office thumbing through Google Earth photos without any connection to the community. This must change. Residents are willing to work with Crown Castle but will not abide by Kabuki Theater rules.
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