Cell tower appeal stayed on technicality

A couple minutes after Tuesday night’s Chico City Council meeting was scheduled to start, councilmembers began trickling into chambers from their closed-session hideaway. First came Steve Bertagna, then Ann Schwab, and moments later Larry Wahl, Scott Gruendl and Mayor Andy Holcombe.

No Mary Flynn, absent because of an illness in the family. No Tom Nickell, absent because of a conference in San Francisco.

To close the gap in seating, Gruendl slid two chairs to his left, settling in next to Holcombe. Little did the mayor and ex-mayor know that the void would prove more than cosmetic, nearly torpedoing a controversial motion on a technicality.

The matter in question was a proposed cellular-phone tower at the Elks Lodge on Manzanita near the Hooker Oak area of Bidwell Park. The project had come before the council before and got bounced back to the Planning Commission, which voted it down. The proponents appealed, and the council had to decide whether to hear the appeal.

Bertagna, who does business with wireless companies, was disqualified from taking part in the deliberation, so he excused himself and left the building. That left a quorum of four.

Residents—Harold Carlson, Gary Lautt, Leanne Lautt—reiterated concerns expressed previously. This tower would sit around 400 feet from residential property, and city ordinances call for a buffer zone of 500 feet. It would be an unnecessary duplication, since a tower for Hooker Oak received council approval (albeit with comparable criticism, as well as a potential legal challenge). The neighbors also decried the visual impact of the proposed “monopine” and the possibility of unforeseen consequences on wildlife.

Nextel representative Frank Schabarum noted that this was his seventh meeting over the issue as he asked for “one more day in the court of public opinion and decision to discuss this matter one more time.”

Wahl, Gruendl and Holcombe voted to let him do so. Schwab opposed, citing “no need for duplication” and the 500-foot requirement—"to chip away at it now would further degrade our ordinance.”

With the majority vote, the appeal headed for a July 3 hearing … until City Attorney Dave Frank spoke up.

To the council’s surprise, Frank told them they needed “an affirmative vote of at least four” to consider the appeal. “Is there a provision for overriding?” Wahl asked. “Only by rewriting the [city] code,” Frank responded.

If that 3-1 vote stood, the Planning Commission’s decision also would have stood. The other option Frank offered was for the council of four to “continue” the matter and rehear it at another meeting with more members present—namely Flynn, since Nickell, an Elks member, would have to join Bertagna on the sidelines.

A continuance requires just a simple majority; a 3-1 vote mirroring the first made that happen. The parties in the appeal will need to present their cases all over again at the June 19 meeting.

Why didn’t Frank speak up earlier? This discussion didn’t keep the council up late (the meeting lasted just an hour and 14 minutes, ending at 7:50), but Schwab for one would have liked to have known about the prospect of moot proceedings.

“When things are out of the norm,” she said afterward, “I think the council should be informed of the possibilities, because it may have an impact. If the council had known that rule was in place, it may have changed some votes.”

That is partly why Frank did not speak up earlier. Open-meeting rules in the Brown Act prevented him from discussing the city code in closed session, but also “this was a procedural vote, not a vote on substance,” so he waited to see if there was “a need to say anything…. Just because the rules require one vote or another doesn’t indicate any predetermined outcome.”

Holcombe and Gruendl didn’t mind the unexpected interjection. “I’m glad our city attorney had his thinking cap on,” Holcombe said, to which Gruendl added, “What a mess that could have been.”

The mayor felt that “there certainly was a value in the process,” and so did his predecessor. “I think it had to go the way that it went,” Gruendl said, “because the four of us had to arrive at a decision, and it incorporated all that we heard while deliberating.”

Scharabaum had his ears open, too, so even though he’ll have to start this phase over, “it makes me aware what those who were present were thinking of and how I’m going to respond accordingly.”

Leanne Lautt would have liked the process to have ended Tuesday, but she’s ready to come before the council again.

“We just have to keep at it,” she said. “It’s worth coming to represent our neighbors.”