By Debra Moore
It’s official. Following up on Monday’s marathon appeal hearing, the Portola City Council met again Wednesday, Oct. 28, to approve a modification to the conditional use permit and a notice of decision for the 133-foot Verizon tower to be constructed near Eastern Plumas Health Care.
While Wednesday’s public comment paled in comparison to the number of those who weighed in on the subject Monday night, appellants Josh Hart and Lisa Miller, along with Heidi Hart, voiced objections to the council’s decision regarding the tower.
Josh Hart reiterated many of the concerns he addressed during the Oct. 26 public hearing, including the impact on those who experience medical issues related to radio frequency emissions, dangers posed to helicopters trying to access the hospital, the potential negative impact on property values and more
“Sometimes the right thing to do is not the easy thing to do,” Hart wrote in a letter read by City Clerk Tara Kindall into the record. “There is a better place for this tower than the current location which is so close to the hospital, schools, homes, government offices, our swimming pool, and our park. And to be clear this is your decision to make, not Verizon’s.
He continued, “We’d also like to point out that all of this could have been avoided if the city had adopted a comprehensive telecom ordinance that prohibits communication towers within 500 meters of sensitive locations like hospitals and schools and sets a height limit that is appropriate for our spectacular rural location, helicopter safety and property values. You have the legal authority to do this and we (and others like EPHC) have suggesting this (both in writing and in person) for years without any action being taken.”
Hart concluded, “You are allowing fear, short-sightedness, and obedience to a perceived authority to outweigh precautionary protection of the most important aspects to our community — the people, the kids, our hospital, our first responders, our park, our library and our librarian. Please reconsider.”
But the council members voted to adopt the notice of decision, which included a modification to an indemnity clause that went beyond what Verizon wanted. “Your only liability is granting the application,” said Paul Albritton, an attorney for Verizon. He said that the addition of language to protect the city regarding violations of the Americans with Disabilities Act could lead to lawsuits that otherwise wouldn’t be filed.
The city’s attorney, Steve Grosse, said he understood Albritton’s concerns, but said the language provides additional protection for the city and the council agreed — leaving the new wording in the condition.
Councilmembers also added a new condition pertaining to testing the RF (radio frequency) emission levels. Verizon will test at the site and at EPHC pre- and post-installation, as well as recertify that the tower meets FCC standards at least every two years, and retest for compliance whenever changes are made to the tower that require a special use permit.
The Oct. 28 meeting followed a public hearing Oct. 26 regarding the Verizon tower. The city manager Lauren Knox, acting in the place of a planning commission, had issued a declaration of notice for a conditional use permit for the project, but three individuals appealed that decision, which triggered the hearing.
The appeal hearing also afforded the opportunity for others to share their opinion on the tower, and many did. The meeting was held virtually with only audio available. Participants called in to listen to and participate in the meeting.
City Councilman Bill Powers opened the public hearing at 6 p.m. and at approximately 11:25 p.m., he and his fellow council members voted 3-0 to deny the appeals and add another condition to the permit. Two city council members — Phil Oels and Stan Peiler — had recused themselves from the matter. Oels owns property near the site and according to FPPC rules could not participate, and Peiler works for Eastern Plumas Health Care and that entity had discussed the tower in the past.
Passionate arguments were made by those opposed to the tower, while a number of individuals spoke in favor. Ultimately federal law trumped any sentiments the council members shared with the appellants, and the ruling was rendered.
The council members listened to the advice of the city’s counsel, Steve Grosse, in making their decision, when he cited the Federal Telecommunications Act of 1996 that precluded the city from regulating the placement, construction, and modification of personal wireless service facilities on the basis of environmental effects of radio frequency emissions to the extent such facilities comply with FCC’s regulations concerning such emissions.
Verizon maintains its emissions are within FCC guidelines, therefore the council members said they had no option — citing the need to follow federal law. But Hart and the other appellants maintain that the Federal Telecommunications Act does not trump their protections under the Americans with Disabilities Act.
The hearing opened with comments from each of the appellants; then the council members asked questions. Time was also given to Verizon to make its presentation with questions from the council. Members of the public were allowed 5 minutes each to make their points.
While Hart and the other appellants have many concerns about the project, chief among them is their health. All three suffer from the effects of EMFs (Electric and Magnetic Fields). One of the appellants, Linda Hale, did not speak during the hearing but wrote a letter that was read. She described the effects as “especially damaging to me” and described some of her symptoms, which include migraine headaches. Speaking on behalf of Hale, Dr. Martin Pall from Washington State University, described a host of symptoms associated with EMF including lower fertility, neurological effects such as migraines, cardiac effects such as heart palpitations and more.
Hart was the next to speak and cited the Americans with Disabilities Act which guarantees access to those with disabilities, and said the installation of the tower would deny him access to the local hospital, as well other areas within the city due to the severity of his symptoms when exposed to EMF.
He also focused on the danger posed by the tower to helicopters attempting to land at Eastern Plumas Health Care, sharing his time with Keith Mackey, president of an aviation consulting firm. Mackey enumerated a number of issues with the current helipad and a new tower. “An experienced pilot with knowledge of the area and previous experience landing at the EPHC location could conduct a safe operation, but someone without this experience could have problems, particularly at night or in marginal weather.”
Lisa Miller, the third appellant, began by saying, “This format is so impersonal, but the results are so personal.” She described her symptoms as migraines, brain fog, nausea and dizziness. Once exposed her symptoms can take from hours to weeks to go away. She said that she had been diagnosed by a medical doctor, and that diagnosis was confirmed by three other doctors.
She told the council that the addition of the tower would prevent her from accessing the hospital or the ability to go to stores and other facilities.
Miller, like Hart, had moved to Portola to escape radio frequency waves. Prior to moving to Portola, Miller taught at a high school in Marin County where she said was able to take steps to improve her teaching areas so that the effects were mitigated. She has done the same in her Portola home.
Miller compared what is happening with wireless emissions today to what happened with the tobacco industry, when that industry didn’t address the harm that cigarettes had on people. She said that she and people like her who are suffering now are the “canary in the coal mine.”
Verizon representative Kristina Demolli laid out the timeline of the project beginning with the September 2019 application and explained why a location on Beckwourth Peak was not selected, as recommended by the appellants and others. “It’s too far away,” she said. “This is the best location” to provide better cell coverage in the area.
Part of Verizon’s presentation addressed the RF exposure. An independent consulting firm representative said, “We agree with the conclusion that the site will comply with the FCC.” He maintained that the hospital generates more RF exposure than the new cell tower would when installed.
Councilman Powers questioned Verizon representatives about the fire danger the tower could bring and whether it would be used for 5G. They responded that the tower is grounded, set back in a 40-foot fenced area and posed little threat; and that 5G is designed for cities and would not be effective in an area such as Portola.
During public comment, County Clerk Tara Kindall read a number of statements that had been submitted in advance of the hearing— some from local citizenry, some from around Plumas County, and others from out of state. Those against approving the tower cited health and safety reasons, while those in favor talked about the need for better communication especially in emergency situations.
Following those comments, members of the public who were attending the meeting could voice their opinions aloud to the council members. Bob Marshall, the general manager of Plumas Sierra Rural Electric, said, “I’m actually a competitor, but I want to speak in favor of this.” He cited the need for better communication, especially with regard to emergency situations such as fire. He cited instances of cell towers being overloaded. “The more cell the better,” he said.
Doug McCoy, the CEO of Eastern Plumas Health Care, encouraged the council to consider an alternate site that wouldn’t have the safety issues surrounding the site near the hospital.
Heidi Hart, Josh Hart’s wife, talked about how difficult it is for her husband to live a normal life, and have the ability to see family and friends due to the debilitating symptoms he endures due to EMF, and how that impacts her. “We shouldn’t be the bad guys for wanting to protect everyone,” she said.
Council weighs in
“You can see both sides of the issue,” Pat Morton said.
Tom Cooley said that he appreciated the level of public participation, but worried that the council didn’t have a lot of latitude in making a decision given federal law.
“We’re sympathetic, but the law doesn’t allow us to deny based on those conditions. I wouldn’t advise you to do this based on RF emissions,” City Attorney Grosse said.
Cooley asked him about ADA accommodations, but Grosse said, that RF isn’t considered for ADA access. “It’s not a basis that the city can base a decision on,” he said. “You’d be violating the Telecommunications Act.” (The appellants and others had argued earlier that it didn’t make sense to make decisions such as these on an act that was nearly 25 years old.)
Powers said that he listened carefully to all sides — as a firefighter, an emergency services person and a teacher. “As much as we want to do something different, we can’t as a local jurisdiction,” he said. He sympathized with the appellants regarding their health concerns, but as a former firefighter also knew the value of good communication. However he wished that more time had been spent finding a better site.
Pat Morton said she also wished the tower could be located elsewhere and Cooley said that for this site he would want to see more testing required.
Verizon Attorney Albritton said other sites had been considered, but they all had issues as access or zoning.