CELL OUT? NO, CELL IN
“The council’s job is not to decide whether this is a good project, or a bad project,” said Town Attorney, Andy Morris, in reference to the hot button item at last Wednesday’s Town Council Meeting—the public hearing for consideration of an appeal of the Planning and Economic Development Commission’s decision to approve permit application for an an 80-foot tall “stealth monopine” cell tower located at 1574 Old Mammoth Road.
“The council’s job, rather, is to decide whether the findings can be made to approve the project and deny the appeal,” said Morris, “or whether the findings can be made to reject the project and grant the appeal. It’s not about emotion… It’s about findings.”
Morris introduced Gail Karish, a telecommunications law specialist—and expert that Morris assured has “dealt with more wireless facilities than I’ve had hot dinners”—who shed light on the intricate legal landscape governing wireless communication facilities applications.
Gail, a partner at Best Best and Krieger, began by outlining the dual jurisdiction of state and federal laws in this domain.
At the federal level, Gail highlighted the Telecommunications Act of 1996 as a foundational piece of legislation regulating wireless services. She explained its provisions—limitations on local authority, procedural requirements, etc.—and its substantive merits, aimed at aligning local regulations with national policies in order to promote widespread wireless service availability.
Gail also touched upon more recent federal laws, such as those addressing modifications to existing facilities, underscoring the evolving nature of telecommunications regulation. Moreover, she emphasized the role of the Federal Communications Commission (FCC) in interpreting and enforcing these laws, underscoring that body’s authority in setting RF (radiofrequency) emissions standards.
As for state law considerations, Gail emphasized additional limitations on local authority, including deemed approval remedies and restrictions on permit duration and site selection.
Following Gail’s comprehensive overview, Shana Inspektor, of counsel in Best Best & Krieger’s Environmental and Natural Resources Practice Group, provided insights into the California Environmental Quality Act’s (CEQA) application to the proposed cell tower project.
Addressing concerns raised in the appeal regarding the project’s compliance with CEQA requirements, Inspektor refuted claims regarding environmental hazards and underscored the project’s alignment with statutory criteria for exemption, emphasizing its minimal footprint and adherence to regulatory standards.
Town Assistant Planner, Michael Peturka, was up next to outline the merits of the application and to address each of the 7 issues raised by the Snowcreek VII HOA.
Peterka addressed concerns about environmental impact, public safety benefits limited to AT&T customers, and aesthetic impact were addressed by emphasizing compliance with zoning standards and code requirements.
“Staff’s response is that the purpose of the code’s wireless standards is to preserve the unique visual character of the town, promote the aesthetic appearance of the town, and ensure public safety and welfare,” said Peterka. “The town standards and requirements do not include an evaluation of the effect of any particular development project on property values.”
Staff further refuted the appeal’s claims regarding the adequacy of the visual assessment and the necessity of proving wireless service gaps, stating that the applicant had met all relevant application requirements. They also confirmed that alternative site considerations were thoroughly evaluated before selecting Fire Station Number Two as the most suitable location for the monopine.
Sonal Thakur, who appeared on behalf of AT&T, reiterated the purpose of the project for boh Council and appellant: “The entire objective of this proposed facility is … to provide the strength and signal and coverage to residents, businesses and tourists in this area … I would like to note that this facility would also have the presence of FirstNet, which … improves the ability [of first responders] to communicate with one another, have a plan and mobilize to emergency situations. It works in conjunction with having improved coverage.”
After staff presentations, the Snowcreek VII HOA got a turn at the mic.
David Jordon, a homeowner at Creekhouse, spoke as the appellant representative.
“I firmly believe in a consensus- driven process,” said Jordon. “That’s protection for … developer or project applicant, as well as the neighbors or stakeholders, as well as the Town,” said Jordon. “In my 30 years in commercial real estate, I’ve never seen anything further from a consensus- driven process than what has gone on with the cell tower.”
Jordon further criticized the lack of transparency regarding alternative locations, challenges, and potential mitigation factors considered in the proposed project’s execution. The homeowner also called into question the legitimacy of the project’s alleged intent:
“We asked for… [an] understanding of what the true gap coverage problems are, because we’ve only seen computer projections,” said Jordon. “We asked for better photo simulations because the photo sims that we’d seen were … disingenuous and deceptive; not true reflections of what this proposed cell tower will do …So we waited, we waited, we waited, what did we get? Frankly we got dishonesty.”
Efforts were made by the Creekhouse homeowners to relocate the project by selecting alternative sites, and proving attestation of AT&T’s already excellent coverage in the area.
“We’re not NIMBYs,” said Jordon, referring to the acronym for the “Not in my Backyard ‘’ approach to home-adjacent site development. “We’re NIMFIs— ‘Not in my Front Yard.”
What followed was an impassioned forum for public input. Several Snowcreek residents demonstrated their support of the appeal.
Homeowner Wendy Blades, condemned the project as “butt ugly” and delivered a particularly Atticus Finch-inspired line of pathos before the council members:
“Before you vote, please ask yourselves, do you want to live by this tower? To have this in your neighborhood? If the answer is no, then you’re all morally obligated to vote no, find the correct rationale, and look for a different location.”
Still, by hearing’s end, Morris offered before the Council that, “impassioned and genuine” as the public commentary was, he had not “heard anything that … sounds like substantial evidence.”
The appeal was shot down 5-0.
A note of context accompanied Councilman John Wentworth’s vote.
“We are a community that lives on the front lines of climate change,” said Wentworth. “We’re trying to mitigate potential catastrophic events. It’s an unfortunate context, but that’s where we are.”
