Under pressure, Council approves cell tower for Wheatfield

Graphic shows the proposed location and design of a cell tower to be placed in Wheatfield Park.

By Doug Spoon, Editor

Faced with a lawsuit it was told it could not win, the Menifee City Council last week reversed its earlier position and voted unanimously to approve a 70-foot cell tower that will be placed in Wheatfield Park.

The cell tower will be built by AT&T, which maintains that it is necessary to fill a gap in its cell phone coverage in that area. After being denied by the Planning Commission and twice by the City Council, AT&T filed a lawsuit Jan. 10. The lawsuit maintains that “the city’s actions are preempted by the Telecommunications Act of 1996 and are therefore void and invalid.”

Following correspondence between Menifee city attorney Jeffrey Melching and representatives of AT&T, a U.S. District Court judge remanded the case to the City Council for reconsideration. In essence, the City was urged to take another look at the denial, which appears to go against the 1996 federal legislation that expanded the rights of telecommunications companies to establish greater networks.

According to AT&T representatives, the Wheatfield Park location is the only one of four potential sites in the coverage gap where the landowner agreed to lease the property for such use. Background for this story can be found in a Dec. 4 Menifee 24/7 news article here.

The landowner of Wheatfield Park is Valley-Wide Recreation and Park District. Although it was Valley-Wide’s decision to allow the cell tower to be built, the City of Menifee has the obligation to approve or deny the project.

A staff report included in the agenda for the Aug. 5 City Council meeting recommended approval of the cell tower, based on the recommendation of Melching. Following is a portion of that staff report:

“As noted, the City Council envisioned a potential reconsideration of this item following the filing of a lawsuit by AT&T. After evaluating the lawsuit, the City Attorney worked with AT&T’s lawyer to jointly request that the case be 'remanded' by the United States District Court to the City Council for further consideration.

“As a result, this item is now properly before the City Council. Based on the analysis above, staff recommends that the City Council approve the application. Doing so will (i) avoid significant litigation expenses (likely in excess of $200,000), (ii) avoid the possibility that the facility will be ordered approved by the United States District Court with no conditions, (iii) will result in a facility that is fully concealed in a clock tower, (iv) will provide better coverage in the area surrounding Wheatfield Park, and (v) will enhance the capacity of AT&T’s FirstNet network for first responders.”

The City Council’s denial of the cell tower project on Dec. 4 followed public comment by several residents opposing the project, citing public health concerns. In a November council meeting when the item was first considered, Melching told council members federal law dictates that any alleged effects of radio frequency emissions cannot be considered in the decision.

The Dec. 4 denial of the project came by a 3-2 vote. One of the two dissenting votes was Mayor Bill Zimmerman, who expressed concern over the possibility of a lawsuit, and whether the ruling of a judge in AT&T's favor would be not only costly, but might compromise the conditions the City had placed in the initial proposal regarding the tower's design.

Menifee 24/7 was not able to watch the live broadcast of last Wednesday’s council meeting, and the video of the meeting was not posted for public review until this morning. Contacted today, Zimmerman reiterated his comments made prior to the vote.

“I have remained consistent, and made my decisions with the taxpayer in mind,” Zimmerman said. “To be clear, I don't want a cell tower at this park. But whether the city approves it or if they (AT&T) get the approval from a judge in a black robe, the end result will be a cell tower. The only difference is how much our residents will spend paying legal fees.”

In his presentation to council members last Wednesday, Melching said that if AT&T prevailed in a lawsuit, it would not be obligated to create some of the preferred design included in the original proposal, such as disguising the cell tower as a clock tower.

Council members expressed their frustration in being forced to approve the project prior to the vote, which can now be viewed on the council meeting video on the City of Menifee website.

“I was originally opposed to this project, but given the information by Mr. Melching tonight, I am going to vote to approve,” said council member Greg August, who made the motion. “However, I will add that had it not been for Valley-Wide, AT&T would have had to find another location. I’m sorry for all the residents who spoke out against this in previous meetings.”

Mayor Pro Tem Matt Liesemeyer, who seconded the motion, agreed.

“I would like to ask the people of Menifee for their forgiveness for this,” Liesemeyer said. “No one wants a cell tower at that location, but at the cost of ongoing litigation and frankly, bad legislation at the state level, we don’t have much choice.”

In response to a question from Zimmerman, Melching said he estimates that only about $5,000 has been spent so far in legal fees for correspondence and discussion with AT&T regarding the lawsuit. He said that much of the estimated $200,000 of fighting the case would be spent on expert testimony that would’ve been required, had the council chosen to once again deny the project.

Zimmerman asked Melching whether he thought there was a possibility the project could still be denied if concerned residents appealed to Valley-Wide to change its decision to grant the lease.

Melching replied that "it is absolutely an avenue that people who are not in favor of this tower ought to take up with Valley-Wide." Melching added, however, that he was not aware of whether it would be possible for Valley-Wide to get out of its lease with AT&T, should it choose to do so.

Responding to a question from council member Lesa Sobek, city planing director Cheryl Kitzerow said there has been no correspondence between the City of Menifee and Valley-Wide regarding the cell tower issue.

Dean Wetter, general manager of Valley-Wide, told Menifee 24/7 via email today that Valley-Wide has had a lease agreement with AT&T since December 2018.

"It is important to note that the District’s agreement is for the lease of the property, and all requirements regarding to placement, code compliance, design and restrictions is left up to AT&T to obtain approval from the City of Menifee," Wetter wrote in the email. "It is our understanding that AT&T has already done all that work with the City and obtained Planning Staff’s support early on in this process."

The staff report from the Aug. 14, 2019 meeting of the Menifee Planning Commission shows that city staff recommended approval of the project. According to the minutes of that meeting, Commission Chair Robert Karwin and commissioner Chris Thomas expressed concern with the location of the cell tower in the park, with its size, and with a lack of outreach to the community. Commission Earl Phillips joined them in a 3-2 vote to deny the project, which resulted in AT&T's appeal to the City Council.

"The proposed facility was supported by the City’s Planning Staff, whose staff report to the Planning Commission provided an overall positive review of the location and aesthetics of the proposed facility," Wetter continued. "The proposed facility is consistent with the City of Menifee Municipal Code, which authorizes concealed or disguised wireless communications facilities in recreational and open space zones. It is our understanding that the installation of the cell tower will provide very important wireless services, including FirstNet services to support police officers, firefighters, paramedics, and other first responder communications."

Wetter said that Valley-Wide has received no comments or questions from residents about the cell tower project. Public comments are allowed at Valley-Wide board meetings, but the next meeting won't take place until Sept. 21.

In response to a question posed by a resident in an emailed public comment, Melching said plans did not call for the Wheatfield Park cell tower to facilitate a 5G network, which emits more radiation than the more commonplace 2G towers and is the source of public concern for the safety of residents. Melching said that city staff is not aware of any 5G cell towers in Menifee.