Below are several reasons we believe Carmel-by-the-Sea has a sound legal path to deny the current application by Verizon to construct a cell tower in a residential area.
The agreement by and between Carmel-by-the-Sea and Verizon does not bind the Planning Commission or the City Council to approve Verizon’s application, nor does it create an obligation to pay legal fees or costs to Verizon.
Please be aware that by virtue of language in the agreement itself, neither party is bound by the terms of the agreement. Moreover, neither party is liable to pay the other party’s legal fees or costs due to a termination of the agreement. We believe the Mayor publicly stated that the agreement would not be used to circumvent the notice and due process requirements of the city’s municipal codes. In addition, there is questionable language in the document that could potentially violate open meeting laws and due process rights of Carmel residents.
Therefore, the agreement does not legally bound the staff and the Planning Commission to approve the application. Although it appeared that the commissioners felt otherwise, the agreement cannot, and should not, pressure the staff to recommend approval.
Verizon is tone-deaf and plain wrong in its boilerplate assertion that Carmel-by-the-Sea lacks substantial evidence to deny Verizon’s application on the grounds that Carmel-by-the-Sea’s municipal code is preempted by federal and state law.
In a desperate attempt to bully cities across the United States into submission, Verizon often brings up a city’s lack of authority to regulate cell towers. Verizon relies on generic arguments that cities are prohibited from upholding municipal codes that essentially block the installation of cell towers. Even if the city were to accept Verizon’s argument that Carmel-by-the-Sea cannot prohibit hideous cell towers and large ground boxes in residential neighborhoods (R-1), they are dead wrong when asserting that Carmel-by-the-Sea lacks authority to regulate cell towers and their placement based on the town’s General Plan, other municipal codes, aesthetics and historical concerns. Will Verizon attempt to argue that all of Carmel-by-the-Sea’s municipal code, ordinances and General Plan are pre-empted by federal and state law? Can they argue that all of Title 17 within the Municipal Code is pre-empted by federal and state law? The reality is Verizon will not. Carmel-by-the-Sea has several avenues to deny the permit. Here are just a few, although the coalition has several other legal arguments prepared:
Verizon’s proposed cell tower and cumbersome ground equipment violates Municipal Code Section 17.32.170. The proposed cell tower and cumbersome ground equipment is next to and across the street from protected historical resources. La Playa Carmel Hotel is registered under the Carmel Historic Inventory list as resource #66. The Dramov Historical Residence across from La Playa Carmel (25 feet) from the proposed cell tower, is also registered as #77 on the Carmel Historic Inventory. Further, La Playa Carmel likely qualifies as a R-4 historic district for Block O and should be protected from the non-conforming aesthetics of the cell tower and ground equipment. If a historical property is eligible for protection, it falls under the protection of federal and state laws, prompting the requirement of environmental impact reports.
The California Supreme Court ruled that local governments may regulate aesthetics to ensure utilities don’t “incommode” the public. Besides noise, health and safety concerns that define “incommode,” cities and counties “have inherent, constitutional police power to impose land-use regulations, including aesthetic requirements.”
As stated earlier, several towns have developed municipal codes and ordinances to promote the aesthetic values of the community. The California Supreme Court was clear on this issue when it ruled in favor of the City of San Francisco and explained to T-Mobile that “technology is not paramount.” The Planning Commission has the constitutional authority to adhere to the General Plan and to the aesthetic values of the community. This is established law. This alone is legal grounds to deny the permit. Again, the Planning Commission only needs one legal reason to deny the permit.
The overall size of the antennae and the cumbersome ground equipment exceeds what is categorized as a “small wireless facility”. The FCC’s protection extends to small wireless towers. It is our opinion that Verizon’s proposed equipment exceeds that definition by virtue of its enormous size and height.
The city should determine the significance of the size of the equipment being categorized as something other than small. This is significant because if it is indeed not “small” it likely does not qualify for many of the federal protections or even federal exemptions under CEQA.
Verizon continues to fail to demonstrate a “substantial gap in service” or even a “significant need.” On the contrary, its own website boasts of perfect and 100% 4G coverage.
Ironically, Verizon’s original 2019 application stated that the utility pole at Carmelo and 8th street was not a viable option as it would not dramatically increase coverage for south Carmel. How can Verizon come to the city now and genuinely claim it is a viable option for increasing coverage? Clearly, Verizon has the benefit of shifting its coverage arguments to suit its needs and applications like a game of musical chairs where it controls all the chairs. The answer is simple. Verizon is not being genuine. Their website declares that they have 100% 4G coverage in Carmel-by-the-Sea and that they have no gaps in coverage. If they are marketing to the public that they have no dropped calls and no service laps in coverage, how can they come to the city with a completely opposite story? Please see attached from Verizon’s website regarding 100% coverage in Carmel and the surrounding areas.
More importantly, Verizon has gone on the record to declare that the proposed cell tower is 4G and will never be 5G. However, it also appears that Verizon is attempting to threaten Carmel-by-the-Sea with litigation based upon the federal governments statements on 5G networks in the United States. It is possible that given that Verizon has proclaimed this is 4G, many of the protections they are using as a sword and shield under the FCC’s guidelines for 5G roll out do not apply.
If the city believes some of its municipal code is in conflict with federal or state law, why hasn’t it re-written it or declared an emergency ordinance like other cities?
The citizens of Carmel-by-the-Sea are left in a precarious position of attempting to cite municipal code to protect themselves from cell towers in its neighborhoods without knowing what municipal code the city is planning on revising. Add an answer to this item.
The proposed cell tower, whether it be 4G or 5G, is a Trojan Horse with the ability to permanently disrupt the aesthetic beauty and scenic coastal charm of Carmel-by-the-Sea.
In 2019, as a reason to deny Verizon’s original permit, the staff wisely cited the fact that if a proposed cell tower is approved in neighborhoods, it will likely lead to future cell towers on utility poles in public rights of way. The staff indicated concern over the ability to adhere to the General Plan and aesthetics of the city. This is still a viable concern and grounds for denial of the permit. These cell towers, when not regulated, proliferate in ways that city planning commissioners could not have envisioned. Oakland, San Diego, La Jolla and Sacramento have sadly witnessed and endured unsightly proliferation of cell towers that also change shape and size with no real public input or ability for city intervention. This too is a Trojan horse with the ability to forever change the landscape for generations to come.
Threats of multimillion dollar lawsuits are false. Verizon is not eligible for attorneys fees or costs. Verizon is not eligible for punitive or consequential damages. More importantly, there are viable alternatives Verizon can seek to improve the so-called gap in coverage, if one was to believe there is a gap.
The California Office of Historic Preservation has Confirmed that Historical Resources Listed in, or Eligible for Listing in, the California Register are Resources that must be Given Consideration in the CEQA process.
Although the city’s counsel indicated during the August Planning Commission that La Playa Carmel was not a historical resource and therefore did not fall under the protection of state and federal regulations, we do not believe that is a proper interpretation of the California Environmental Quality Act. In fact, we believe we can provide evidence that there are two historical resources that will be materially altered and substantially impacted due to the placement of the cell tower – La Playa Carmel Hotel and the Dramov historical home, both of which share designs by historically prominent Carmel architects with features that exist today. Both are over fifty years old, and both have, at one time or another, been viewed as, or treated as, a Carmel historical resource. At a minimum, both are eligible of being included on the California Register and National Register of Historic Places. In fact, La Playa Carmel has the National Register of Historic Places plaque in plain site on its property. It is our understanding that the La Playa Carmel ownership is currently engaging experts to determine its previous status on the Federal National Register and has made inquiries to both the state and the federal historical societies in an attempt to challenge such notions that it is not historical.
The city knows that historical resources are recognized as part of the environment under CEQA (PRC § 21002(b), 21083.2, and 21084.1). We believe that is why the city’s outside counsel immediately dismissed any notion that La Playa Carmel is a historical resource. The California Register is an authoritative guide to the state’s historical resources and to which properties are considered significant for purposes of CEQA. The California Register includes resources listed in or eligible for listing in the National Register of Historic Places, as well as some California State Landmarks and Points of Historical Interest. Properties of local significance that have been designated under a local preservation ordinance (local landmarks or landmark districts) or that have been identified in a local historical resources inventory may be eligible for listing in the California Register and are presumed to be significant resources for purposes of CEQA unless a preponderance of evidence indicates otherwise (PRC § 5024.1, 14 CCR § 4850).
Several calls have been made to historical resources experts in California and on the federal level, and we strongly advise the city to not recommend the approval of Verizon’s permit until it has either (1) formerly notified the residents of Carmelo Street and La Playa Carmel Hotel of an exemption to CEQA with the statutory period for challenging such exemption or (2) ordered Verizon to conduct an Environment Impact Report or EIR.
In the unfortunate event that the city continues to incorrectly believe that the Verizon large cell tower (which as stated earlier, may not fall under the protection of recent federal laws regarding 5G since Verizon continues to claim this is 4G) and its accompanying obtrusive ground boxes and fencing, when viewed in total, fall under an exemption, it is well within its authority to notify the residents of Carmel in a formal notice that an exemption applies and the residents have the legal authority to challenge the exemption. In the event the city’s position is that an exemption applies and it will not order an EIR of Verizon, please be aware we will request the city to formally notice residents of the exemption and we will seek the statutory period to challenge such an exemption before Verizon is permitted to begin any irreparable harmful construction
An account has been set up through Carmel Cares for anyone who wishes to donate to a citizen-funded attorney that will advocate for the protection of our residential zones throughout the wireless ordinance process.