Cell-phone companies are stealing San Diego parkland

“City Charter says our parks are solely for recreation, not for rent.”

Cell phone tower

At the end of a narrow cul-de-sac, tucked in between Torrey Pines Elementary School and a YMCA preschool program, is La Jolla’s Cliffridge Park. There’s nothing special about Cliffridge in regards to amenities. It has what most community parks have: a baseball field, concrete walking paths, a grass area for children and others to romp on, and, of course, two wireless communication towers, one disguised as a yellow foul pole, beaming hundreds of microwatts needed to provide wireless service.

Cell tower

Cell tower

In February 2014, wireless giant AT&T proposed installing another set of panels near the baseball field in the form of 30-foot tall fake eucalyptus trees. Twelve wireless panels, disguised as tree branches, would shoot signals to residents and visitors in La Jolla Shores and adjacent Torrey Pines Road. A 240-square-foot concrete enclosure would power the faux tree.

Siting wireless towers on city-owned property has occurred for more than two decades, and with the growing dependence on smartphones and wireless networks, the number is bound to increase. Placing wireless antennas on parkland means, at least for the City of San Diego, extra revenue.

According to figures provided by the City of San Diego, as of June 2014 there were 30 such leases with wireless companies for public park land, generating nearly $1 million per year.

A group of 40 residents intent on stopping the city from leasing out parkland has come forward.

After learning about AT&T’s proposal for Cliffridge, the group narrowed their questions down to one; how is the city allowed to lease public park space for outside commercial benefits when the municipal code states that minus two-thirds voter approval, “real property dedicated in perpetuity by ordinance of the Council...for park, recreation, or cemetery purposes shall not be used for any but park, recreation or cemetery purposes.”

“In our city parks, the law says you’re not allowed to solicit funds,” says La Jolla resident Marc Kuritz. “You can’t sell merchandise. You can’t pass out advertising flyers. You’re not even allowed to pick flowers. But our mayor and city council hand over chunks of our park land to private corporations for cell phone towers. It’s not legal, it’s not right, and it makes no sense, unless you are the politician getting the revenue or the telecommunications giant making the profit.”

City officials, however, continue to use what appears to be an outdated legal opinion to justify the policy.

In 2001, former city attorney Casey Gwinn issued a memo that paved the way for telecommunications companies to build antennas and clutter parks with fake eucalyptus trees and concrete enclosures. In the memo, Gwinn tried to follow the city charter while adhering to the stringent requirements of the Federal Telecommunications Act, which prohibits, in part, municipalities from discriminating against wireless companies with unfair zoning laws.

“In the application of Council Policy 700-06, the phrase ‘would not change or interfere with the use or purpose of the parkland or open space,’ has been interpreted to mean that the equipment enclosure for a telecommunications facility can be placed above-ground within the park in an area that is not usable for and does not detract from any park purpose. We believe that this interpretation, taken with the other criteria of Policy 700-06, is consistent with Charter Section 55.”

In the years since, telecommunications companies have grown bolder in their requests to lease city property.

Base of cell phone tower

Base of cell phone tower

As reported by the La Jolla Light, during an April 2014 planning group meeting, Debra DePratti, representing AT&T, told the La Jolla volunteer planners that “local jurisdictions don’t have any purview” in asking for permission.

“…[B]ut as part of our application process we are required to submit a report that demonstrates compliance with FCC regulations...”

And, elected officials appear more than willing to fall in line.

In emails obtained by the Reader, mayor Kevin Faulconer’s office and council president Sherri Lightner seem reluctant to upset the apple cart.

“The city attorney’s office has stated that they believe the city is within the legal parameters on this issue with all considerations that you brought to our attention,” wrote Faulconer’s director of appointments, Francis Barraza, in July 2014.

When pressed as to reasons for the policy, Barraza added, “Generally, the city attorney’s office is still relying on the 2001 Memorandum of Law and has seen the cases you referred to us. At this time we will not be intervening to ask staff to deviate from the process that has been followed for all of the other cell tower sitings.”

Despite having met with representatives and lobbyists from AT&T, council president Lightner refused requests from residents for a meeting. Jennifer Kearns, director of communications for Lightner, says the proposal has yet to involve city council. “Council president Lightner told residents that she would be more than happy to meet with them once an application for a wireless tower moved forward to the City Council. At this point, no application has moved forward.

“In her meetings with AT&T, council president Lightner expressed that in the past, she has not supported cell phone towers on park land. Historically, she has advocated for parks and open space to be reserved for park uses only. In general, Council President Lightner would prefer that locations other than city parkland be used for wireless towers. Wireless tower applications are land use decisions, so each one has to be evaluated on a case-by-case basis, and Councilmembers may not take a position on a specific wireless tower application until the item is heard by the council.”

Residents seemed to have some impact since beginning their campaign. AT&T has, as of now, killed their proposal.

Now aware of several similar proposals at other city parks, the group continues to fight against the leasing of parkland for commercial purposes.

Last year the group launched a petition on Change.org. As of January 7, over 683 residents had signed.

A 2013 ruling from the Ninth District Court of Appeals in City of Huntington Beach v. T-Mobile has since validated their objections. In the case, a panel of judges ruled that the Telecommunications Act “applies only to local zoning and land use decisions and does not address a municipality’s property rights as a landowner.” That means charter cities such as San Diego are not obligated to give away dedicated parkland to telecommunications companies. And, if they do, voters should have a say in the matter.

According to a statement from city attorney spokesperson Gerry Braun, the city attorney’s office plans to revisit the issue; however, he is unsure when. “Subject to workload demands and priorities from the city council, our office was planning an update in light of our recent judicial success and other court decisions but cannot give you a timetable at this point.”

In the meantime, the city continues to receive proposals from wireless companies to install antennas in city parks.

“Some might argue that the city needs the money,” Kuritz says. “Think about it this way: if I told you I was short on cash, maybe you’d help out. If I rented out your kids’ playroom to the phone company without your permission, you’d call the police. That’s just what our mayor and city council are doing. City parks belong to us, the citizens of San Diego. And our city charter says our parks are solely for recreation, not for rent. Breaking the law to get money is called stealing.”

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Comments

Anyone who has a cellphone has a stake in this controversy. When those phones first began to proliferate, the service was really terrible. In the past fifteen years, we've all seen the capabilities increase steadily. Some of us can actually claim flawless coverage. How was that achieved? A great increase in the number of cell phone towers is the answer, and many of them are on public property of one sort or another. If it were possible to just put in a few towers on a few mountain tops in the county, the cell phone companies would have used just a few, such as Mount San Miguel, Mount Soledad, and that peak in San Marcos (the name of which escapes me now.) But they need to be spread around. I don't like to see those hideous fake trees anywhere, and parkland should be the last resort for locating the towers. However, in too many areas, locating them on private property is impossible due to zoning, height limits, and neighborhood objections. So, the towers have to be put somewhere, and often a public park is about the only feasible spot to serve certain neighborhoods.

If you love your smartphone and would like to have it, realize that this matter isn't just one of telecom companies abusing the system. Want to go back to the days of being tethered to your home land-line or office land-line phone? I don't, and few would be content with that situation. Let's accept the idea that cell phone towers are going to be with us for a long time, and as ugly and intrusive as they can sometimes be, we need them, and are willing to pay for them.

visduh Remember the good old days of spotty coverage and roaming charges? About 20 yrs ago,when we moved from Encinitas to Calabasas, when coming down to visit my wife's aunt in La Jolla, we must have gone thru at least 3 or 4 maybe even a half dozen coverage areas and at least a couple of area with no service. If we went over the hill and down to Malibu, no coverage. Sometimes, coming over the Sepulveda Pass of all places, we would drop calls. And of course, we always seemed to have problems between San Clemente and O'side, more so at night for some reason. And driving from SoCal over to Arizona to visit family? Forget about it. And now? Where don't you have coverage. The same people who seemingly can't live without their smart phones, some of whom seem to have traded brain function for apps, complain about having cell towers on public land, taking up approx a 15' x 15' space with a 30-50 foot tower disguised as something else, bringing in 3-4K per month to which ever public entity owns the space AND providing more capacity/coverage. Some things just make you want to shake your head and go WTF!!

dan, I remember those days, but they weren't good. In 2000 I think, I bought a family plan consisting of three cellphones (two were Motorola units, and the third ?) with Cingular. Remember them? The lock in was for a year, and the year cost about a thousand bucks. The most useless thing I'd ever spent that kind of money on. The phones worked nowhere that I ever was, and there was a strong signal only on I-5, where I didn't want calls. At the end of the year, I pulled the plug on Cingular and the whole concept. And yes, there were the roaming charges. Sheesh!

Who will complain the loudest the "you can't do that" NIMBYS or the people who can't get reception?

Fortunately, not all public representatives are so unresponsive to reasonable constituent concerns and to the legal provisions of the San Diego City Charter as Councilwoman Sherri Lightner and various San Diego City Attorneys.

The advisory La Jolla Community Planning Group in its wisdom turned down two requests in the last year for wireless towers in dedicated parks/youth sports fields from ATT and Verizon. The community is grateful to resident Mark Kuritz who has researched the law and who articulately states the facts of the matter: "It's not legal, it's not right and it makes no sense, unless you are the politician getting the revenue or the telecommunications giant making the profit."

Change.org is about the law and protecting children on playing fields.

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