South Lake Tahoe

Measuring Tree Heights in South Lake Tahoe, CA, Jan 17, 2020

MEMORANDUM

DATE: September 30, 2020

TO: TRPA Legal Committee and TRPA Board

FROM: Gregg R. Lien, Attorney for Appellant, Monica Eisenstecken
 

Re: Legal Committee Agenda Item #1; Governing Board Item IX. B , Removal of Trees Providing Screening For Needle Peak Proposed 112-foot Verizon Cell Tower

 

This appeal is simply about playing fair.

As your staff report accurately points out, this is really about the upcoming 112-foot cell tower project, and the standards by which that project will be judged. If this were a stand-alone tree removal project for defensible space, as TRPA’s forester apparently believed, we would only applaud the landowner for being willing to invest the resources to accomplish that.

This is not the case. With two projects on the table for this property, TRPA is required by law to review both at the same time. With a hearing on the cell tower project only months away,

  • at the very least the timing of this request for tree removal is exceedingly suspicious. The landowner could have asked for a permit to remove trees years ago – – so why now?
  • It is an incontrovertible fact that trees reduce (attenuate) microwave signals. Verizon has proposed tree removal for just that reason as to this project and others.
  • Removal of the 31 trees will greatly increase the effective radiated power of microwave energy especially in the immediate vicinity of the cell tower project.
  • The tree removal will also drastically increase the scenic impact of the cell tower by removing the natural screening currently in place.

Further, although we are not able to produce the actual agreement between Verizon and the landowner under which the permits for the cell tower are being pursued, we are familiar with Verizon’s standard form agreement used in these situations. In short, Verizon and the landowner are required to cooperate to obtain permits for the tower, and the landowner is “required to take no action which would adversely affect the status of the property” with respect to the project. (See attached Exhibit “A”).

From this we can imply that either Verizon and the landowner have agreed that this tree removal application could proceed under the terms of their agreement (which we feel is more likely) or that both Verizon and the landowner have utterly failed to communicate and are acting at cross-purposes in violation of their agreement in spite of this project’s notoriety and the likelihood of subsequent litigation.

Either way, these two projects are joined at the hip and cannot be treated separately.

Under the landmark Laurel Heights decision of the California Supreme Court, impermissible “piecemealing” occurs when

1.) the impacts of an initial project have reasonably foreseeable consequences upon the second project and

2.) the impacts of the subsequent project will be significantly greater or changed because of the initial project.

This is exactly the situation which we have before you today.

Even your staff report tacitly admits this when it says, “Ms Eisenstecken does make a legitimate point that the tree removal authorized by this permit may affect TRPA’s analysis of the pending cell tower application.”. (Staff Report Page 2). Where we disagree is that the tree removal permit can be considered separately. To do so would be impermissible piecemealing. These projects must be considered together.

A crucial concern that has been expressed by many individuals is TRPA’s practice of approving cellular facilities without even the most rudimentary analysis leading to the required findings in your Compact (Article V(c), V(g) and VI(b)). Of all of the TRPA adopted thresholds, many on your staff (including the likely author of your staff report) have expressed that scenic impacts are among the most important. TRPA staff, environmental groups, the California Attorney General and many others have agonizingly analyzed the visual impacts of comparatively small things such as piers, for example. But when it comes to cell sites that stick out like a sore thumb, literally tower above the surrounding landscape, are visible for miles, and are offensive to an increasingly large proportion of your constituents, only the most superficial scenic analysis is done, if any at all.

In 1972 the congressional founding principle for TRPA was to protect the beauty of Lake Tahoe as a national jewel. Congress was not just talking about water science and clear blue water. They were talking about overall beauty of our landscape (natural and manmade). The directive to protect the scenic quality of the basin is one of the agencies fundamental responsibilities – – no one else is going to protect the scenic quality of Tahoe if TRPA doesn’t. Cell towers are very significant scenic impacts, and when considered cumulatively, the basin is facing a significant challenge to elevate technology while protecting scenic quality.

While tree removal for fire protection is important, one threshold cannot be traded out for another as your staff is well-aware. (The staff report seems to ignore this fact, and most of the marked trees appear to be perfectly healthy.) Non-degradation must be shown, and it is the burden of the applicant to meet the burden of proof.

Your staff report seems to imply that the Rules of Procedure would have the appellant in this case having to meet the super-majority 5 and 9 voting standard. I respectfully disagree. Does the staff seriously assert that because it erroneously approved the tree removal at the outset because it was unaware of its impact on the cell project that it requires the Board’s permission to now do what is legally required – – and that it requires a super-majority vote to do so?

Had the staff and the forester been aware of the context of the application, which the applicant failed to provide, this application could not have been properly approved in the first place, except in the context of the entire project, and consideration of scenic impacts as well.

As is detailed in our accompanying report from our scenic consultant, Brent Thrams, the project area is located right in a crucial Scenic Roadway Unit which is in non-attainment. This puts this area in the top 4% of areas most sensitive to scenic degradation in the entire Tahoe Basin!

Any further incremental loss of scenic values would be unconscionable and an egregious violation of your environmental mission. A tree removal permit doesn’t consider these impacts, and there isn’t even a site plan in existence (we could only refer to the blue dots on the trees placed by TRPA’s forester that were visible from off site) that even shows the location of the trees marked for removal!

All we can say with certainty is that cutting down ANY number of 40 to 70+ foot tall high pine trees that would provide screening will most certainly make an outlier and eye-sore more visible and detract from an already extremely challenged visual environment.

How can the TRPA be so blind to this outcome?

In addition, the City of South Lake Tahoe recently passed an ordinance keeping new cell towers at least 200’ from residences. So, the tower would be non-conforming and subject to amortization and possibly unable to be expanded with new co-locations. In short, this location has many shortcomings that will be discussed at the time of the hearing on the full project.

With the foregoing in mind, let me suggest some possible solutions to avoid forcing us into potential litigation over a decision today which may leave this permit intact during the very short 60-day Statute of Limitations within which to challenge your decision.

Those potential solutions are as follows:

1.) Leave the permit in force but ensure that the applicant and Verizon take responsibility for creating their own hardship. In other words, the baseline scenic condition against which cell tower project’s scenic impacts would be measured is the current condition, with the current level of screening intact. If this is made a binding requirement, we would withdraw our appeal.

If the applicant wishes to remove some or all of the trees under those circumstances, more power to them. So there is no later misunderstanding about this, TRPA staff, counsel, and the Board needs to acknowledge that the FCC cannot preempt TRPA’s independent authority to insist upon full compliance with its scenic thresholds and regulations, and that non-degradation of the scenic condition is required.

2.) Continue this matter to be considered at the same time as the Verizon tower project, and analyzed within that context, including all of the required findings. I am informed by your staff that Verizon’s project will be moving ahead in the not too distant future. As the applicant does not propose immediate removal of trees, this should be acceptable to the parties.

3.) Approve our appeal on the grounds that granting the application would constitute impermissible piecemealing.

4.) In addition to the foregoing, we would ask the Board to pass a Resolution asking Verizon to relocate this cell tower project away from this critically sensitive scenic area, and at least 200’ away from residences, in accord with the City of South Lake Tahoe’s new ordinances.