Thousand Oaks Law Suit Likely After Macro Tower Cell Site Approval

Appeal at this location was denied by narrow 3-2 vote on Tue Jan 14, 2020

Adapted from an article by Becca Whitnall Jan 23, 2020 | Original Thousand Oaks Acorn article here

Verizon has proposed putting 12 antennas at a water tower in North Ranch. The planning commission approved the installation last year but there was an appeal, which the City Council denied.

Verizon has proposed putting 12 antennas at a water tower in North Ranch. The planning commission approved the installation last year but there was an appeal, which the City Council denied. A group of North Ranch homeowners that provided substantial evidence in the public record while the Appeal or a wireless communications facility in their neighborhood should have been granted, essentially exhausted their final remedy.

The Thousand Oaks City Council voted 3-2 last week to deny a request to overturn a planning commission ruling in favor of the installation, which will share space with an existing water tank on Sunnyhill Street surrounded by multi-million-dollar homes.

  • Voting in favor: Councilmembers Bob Engler, Al Adam and Ed Jones;
  • Voting against: Councilmembers Rob McCoy and Claudia Bill-de la Peña.

Dr. Greg Tchejeyan, a local orthopedic surgeon whose home sits about 180 feet from the tank, has been leading the opposition against the 12-antenna, 36,000 Watt Effective Radiated Power (ERP) Wireless Telecommunications Facility (WTF). Tchejeyan did not respond to attempts to reach him for comment, however, his attorney, Harry Lehman, indicated at the hearing that his client would consider litigation.

“I want to get across to you that our (113-page document) has basically been ignored here, but it won’t be in court,” he told the council.

Verizon initially was granted the right to install the 12 antennas and supportive equipment with a 5-0 vote by T.O.’s planning commission in August. Tchejeyan appealed the decision, forcing the issue to go before the council. The application for the facility dates back to 2015, a point made by Verizon representative Kevin Sullivan during the sometimes contentious, four-hour Jan. 14 hearing.

“I’d like to remind the City Council that Verizon has been at this process for years,” Sullivan said. “We have a facility that fully complies with all the applicable height limits for the zone. We’ve got narrow-profile facilities, and yet our application has been pending with the city for over four years. We’ve been through constant redesigns. We’ve done studies and updated studies.”

Over 35 members of the public addressed the council on the issue, with only three saying they were in favor, citing poor Verizon coverage in Westlake. The bulk of the public commenters were opposed, arguing that the wireless installation was unnecessary, was out of compliance with city standards, was too close to homes, would ruin the quiet enjoyment of streets, due to items directly under the cities’ police powers in residential zones — "noise, negative health consequences and safety concerns" — as stated by the CA Supreme Court Judges in their April 4. 2019 Ruling in T-Mobile v. San Francisco.

During the hearing, council members were reminded by the city attorney and a wireless consultant that federal law—the Federal Communication Commission’s 1996 Telecommunications Act ("1996-TCA")—prevented them from taking health concerns into consideration, which is not what the 1996 TCA actually says:

47 U.S.C. 332(a)(7)(B)(iv):

" (iv) No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission’s regulations concerning such emissions."

Matters they could weigh: aesthetics (which includes noise, negative health consequences and safety concerns), compliance with city design guidelines and whether the facility would meet the standards of California’s Environmental Quality Act, but the Council failed to understand their actual authorities because they were misled by Verizon and the City-hired telecommunications consultant, Jonathon L. Kramer from Telecom Law Firm, LLP.

Mark Sellers, former city attorney, speaking on behalf of Tchejeyan, said he wrote Resolution 97-197, the municipal code section dealing with wireless installations. Sellers said Verizon’s proposal was out of compliance with city law because the antennas would cause “silhouetting,” casting a dark shape and outline against the ridgeline.

“The concept was you can put these antennas in if you attach them to something that’s imposing, that’s big. For example, (Conejo Recreation and Park District) has some on their super-high lights for their playfields, imposing structure(s),” Sellers said. “You can attach them to a water tank if it’s visible and unscreened because it’s already an imposing structure that everybody sees, so there’s no adverse impact. Nowhere in that resolution does it say, ‘Oh, you can attach it to a wrought-iron fence.’ That’s inconsistent with the concept.”

The city has been protecting views against from silhouetting for years, Sellers said.

“Now we’re going to allow Verizon to put an antenna site here that silhouettes against the ridgeline,” he said. “This is something that is inappropriate for this site and inconsistent with your standards, and you have discretion to decide what complies with your standards—and that is not staff’s decision.”

Despite city staff’s assertion that the installation would not cause silhouetting because it would be incorporated into new fencing, both McCoy and Bill-de la Peña based their dissent on Sellers’ argument.

“I believe this would be potentially precedent-setting. I don’t think this is actually in spirit with (the resolution),” Bill-de la Peña said.

McCoy said he’s a big believer in “original intent.”

“And if Mr. Sellers was the one who formulated 97-197 and it deals with aesthetics, and that is a grounds for denial, and it will affect the ridgeline and it is contrary to what the original intent of that was all about . . . I think we have a phenomenal planning commission, I’m grateful for them, I appreciate the staff, but I’m voting in favor of the appellant,” he said.

The majority of the council said they didn’t feel the impact on views would be significant. They also said they agreed with Verizon’s findings that there were gaps in coverage in the area and therefore the project would serve the greater good, despite the only substantial evidence in the public record establishing that there is no significant gap in telecommunications service. The council essentially ignored the verifiable evidence in the public record and based their decision on heresay from Verizon and a few residents talking about their personal experiences which do not establish any gap in telecommunications coverage.

“I just don’t think there’s enough there to go against the need for that site,” Jones said. “After having walked all around there, I don’t see how that’s going to be a big visual negative for that area, and I can’t believe it’s going to lower the value of the houses.”

The evidence in the record for the appeal proves the contrary. Council member are spit-balling, instead of basing their decisions based on the evidence that was entered into the public record.

Engler said much of the view of the 15-foot antennas from the homes would be blocked by vegetation or the crest of the hill.

Before registering the tie-breaking vote, Adam said he could not come up with legitimate findings to approve the appeal and feared a lawsuit if the city denied Verizon’s application.

“I think that could be very costly to the taxpayer,” he said. “There’s a lot of liability involved here. You could be looking at hundreds of thousands of dollars in legal fees and damages, and to be honest with you, the likelihood of the city prevailing against Verizon on this particular issue is small, very small.”