On July 11, 2011 MacKenzie & Albritton LLP, attorney for Verizon Wireless, sent an eight page letter to Fillmore Mayor Gayle Washburn, Councilmembers Brooks, Walker, Conaway and Sipes, and City Attorney Ted Schneider, with attachments. The letter addressed the Planning Commission’s unanimous approval of a Verizon cellular tower and the Fillmore City Council’s appeal of that approval.

Following are excerpts from the letter.

The city narrowly avoided a lawsuit by Verizon Wireless by withdrawing their ‘appeal’ at the July 12th council meeting after closed session held with Schneider, where the letter was considered. Highlights of the letter are: Unreasonable Discrimination in violation of the Telecommunications Act; Due Process, Brown Act and Government Code Violations; Failure to provide Verizon Wireless with a record of the proceedings; Failure to state objections in the Appeal documents; Failure to place consideration of an appeal vote on the agenda; Lack of authority to file the Appeal; and Expression of Bias and Usurpation of Planning Commission’s Authority. Three commissioners resigned over the council’s questionable actions.

THE LETTER
We write on behalf of our client Verizon Wireless to urge that you either withdraw or deny your appeal of the Planning Commission’s unanimous approval of a faux water tank telecommunications facility (the “Approved Facility”) to be located at 310 “A” Street in Fillmore, California (the “Property”). There is no evidence, much less substantial evidence, to reverse the Planning Commission’s approval. This project has been pending since February. In order to comply with the FCC’s Rules regarding “unreasonable delay” beyond 150 days, the project should now be finally approved.

The Council’s appeal is the culmination of numerous Brown Act and due process violations, which are addressed in detail towards the end of this letter. To summarize these at the outset: Without considering the impact on due process, the Mayor announced an intent on behalf the Council to appeal the Planning Commission approval before the Planning Commission had even heard the matter, which usurped the Planning Commission’s authority, and demonstrated bias against the project. (The expressed intent was to appeal an approval only, and not a denial.) In addition, the Council’s intent to vote for an appeal was never placed on its agenda – for either of the two Council meetings – thereby providing no public notice or chance for discussion, and clearly in violation of the Brown Act, which requires agenda notice of any “action” item.

In contravention of Cohan v. City of Thousand Oaks (1994) 30 Cal.App.4th 547, the Council then voted to appeal to itself, even though the local Code contains no procedure for doing so. Further, the actual appeal document filed by the Council contains no actual grounds for the appeal, precluding any meaningful notice of objections and the opportunity to respond. The City has even failed after repeated requests to provide us with the record of these proceedings. The reported court decisions in this area of law, and the various violations they describe, do not even come close to the accumulation of due process violations in this case.

The primary purpose of this letter, however, is to set forth the overwhelming evidence and law supporting the Planning Commission’s approval, under both the local Code and the Telecommunications Act of 1996, as amended. We ask that the Council either withdraw its appeal, or deny the appeal and affirm the Planning Commission’s approval.

150-Day Federal Time Limit for City’s Review
In the present case, the City’s 150-day time period for review expired in early July, giving rise to a cause of action for “unreasonable delay.” Accordingly we urge that there be no further delay of review in this case.

Unreasonable Discrimination in violation of the Telecommunications Act
The City previously granted Sprint a permit to construct a faux water tank facility very similar to one in issue here. In addition, Verizon Wireless does not currently operate a single site within the City of Fillmore. Under the circumstances, denial of the Verizon Wireless facility would plainly constitute a violation of the Telecommunication Act provision that prohibits unreasonable discrimination among competing wireless carriers.

Due Process, Brown Act and Government Code Violations
A. Failure to provide Verizon Wireless with a record of the proceedings.
On July 1 and again on July 5, Verizon Wireless’s representative, John Moreland, ordered the recorded tapes and minutes of the 3 relevant hearings: the City Council’s discussion on June 21; the Planning Commission’s hearing and approval on June 22; and the City Council’s discussion and decision to appeal to itself on June 28. While Mr. Moreland was assured by the City on July 7 that his check had been received and that all DVDs or other recordings would be mailed for our receipt last Friday, he subsequently learned that nothing was sent by the City. This obviously has made it difficult to respond to the appeal. We determined it was necessary to submit this letter despite the lack of a record.

B. Failure to state objections in the Appeal documents.
The Appeal form filed by the Council asks whether the appellant is a party to the matter. Having answered “No” the appellant is then asked to state the “basis for filing the appeal as an ‘aggrieved person’”. The only response here is “To increase public input.” We submit that this does not constitute adequate notice of objections and the opportunity to respond.

C. Failure to place consideration of an appeal vote on the agenda.
The Council determined to vote on whether it should appeal the approval of the Planning Commission, but failed to place this matter on its agenda – at all (See Council Agendas of June 21 and June 28, 2011). Absent a withdrawal of the appeal, this action alone is subject to suit with a demand for reimbursement of attorneys’ fees and costs. This is because the Brown Act, California Government §§ 54950, et seq., requires that the Council place any matter it wishes to consider on its agenda at least 72 hours in advance. Except in the case of an emergency (voted on by four-fifths of the Council), any action taken in violation of the Brown Act is null and void, and will subject the Council to an award of attorneys’ fees and costs.

D. Lack of authority to file the Appeal.
There is no procedure or language in the Fillmore Municipal Code supporting the Council’s appeal of the Planning Commission’s approval. For example the Code does not say that the Council, any agency or even “any person” may file an appeal. Under basic due process principles and California land-use law, an appeal is permitted only according to established procedures spelled out in the City’s code. See Cohan v. City of Thousand Oaks… As explained in Cohan, the due process infirmity arises when a governing body appeals to itself from a decision of a subordinate agency -- but the Code lays out no process for doing so. The Council may not lawfully circumvent codified levels of review by filing an appeal. As set forth in the Staff Report for this Appeal, “There is no procedure in the Zoning Ordinance that allows the Planning Commission to refer projects to the City Council.” “According to the Zoning Ordinance (Section 6.04.5001) City Staff is to review projects for conformance … [and] also to determine who the Review Authority is under Table IV-1 (Threshold of Review)” Under that Table, the Community Development Director had authority to refer the project to the Planning Commission, which he did. In contrast to other matters described therein, there was no authority to refer this project to the City Council for their review. The various due process violations subject the City to potential causes of action under 42 USC Section 1983.

Expression of Bias and Usurpation of Planning Commission’s Authority
One day before the Planning Commission was to review the application, Mayor Washburn announced at the June 21 City Council meeting that if the Planning Commission were to approve the Verizon Wireless facility, she would want an appeal filed – and would ask the entire Council to appeal. By itself, this expression of bias and commitment to a certain vote before the Planning Commission had even reviewed the project creates an insurmountable due process violation -- let alone usurpation of the Planning Commission’s authority. Under Section 2.32.070 of the Municipal Code, the Planning Commission is delegated to perform certain duties: “Powers. The planning commission shall have all powers, necessary and incidental, to enable it to carry out its duties under this chapter and under Title 7, Chapters 3 and 4 of the California Government Code.” The City’s ordinances, having assigned certain powers to the Planning Commission may not be undone by a City Council vote to appeal on a certain project. See Government Code Sections 65100-65107. As reported in the Fillmore Gazette (the only record we have seen), the Planning Commissioners were notably angered by the apparent futility of their deliberations.

Conclusion
The written record to either deny or withdraw the appeal could not be more complete or compelling, and this fact does not even take into account the numerous due process considerations. The Planning Staff carefully reviewed the water tank design and confirmed that the Approved Facility fully complies with the relevant provisions of the City’s wireless provisions and development standards. Verizon Wireless has designed an unobtrusive facility, and has worked extensively with the City for a long period of time to ensure appropriate placement and design. Accordingly we respectfully request that the Council deny the appeal and allow for improved wireless service without further delay. We note once again in this connection that the Telecommunications Act requires that local approvals to install wireless facilities be issued “within a reasonable period of time,” taking all relevant factors into consideration.
Very truly yours,
Sarah L. Burbidge