Having failed to sway Palo Alto's boards, commissions and City Council members, opponents of a proposed cell tower at the Little League Ball Park on Middlefield Road are now taking their case to court.
In a complaint that was initially filed in March and amended earlier this week, critics of the cell equipment accuse the city of breaking a variety of state and local laws in approving the Verizon tower at the ballpark near the Mitchell Park Library. The equipment consists of a 65-foot-tall pole that would replace an existing 60-foot-tall pole and that would support three antennas.
While the court is still weighing the case, opponents scored one victory earlier this week when a Santa Clara Superior Court judge granted their request for a preliminary injunction -- an order that prohibits Verizon from performing any work on the site until the issue is resolved. On Monday night, the City Council voted in a closed session to immediately challenge the ruling in the Court of Appeal in the Sixth District.
Judge Carrie Zepeda's order puts a temporary halt to a project that the city approved on Dec. 15 after a series of long and heated public hearings and that Verizon began implementing in April. Issued on June 8, Zepeda's preliminary injunction orders Verizon to "immediately cease and desist from all further excavation, demolition, site preparation or other construction work or similar activities in any way relating to the Verizon cell tower project and from making any further physical change or alteration to the site of the Palo Alto Little League Ball Field (except for reasonable measures to secure the site during the pendency of this injunction, and except for emergency repairs)."
The court battle is the latest chapter in a saga that has pit neighbor against neighbor in the area around the south Palo Alto ballpark. Little League officials and a coalition of residents have rallied behind the Verizon proposal, arguing that improved cell reception is badly needed in the neighborhood. Other residents have argued, equally vehemently, that a ballpark near a residential area is an inappropriate location for cell equipment and claimed that the equipment would pose a health hazard, look unsightly and undermine the historical character of the ballpark.
So far, the challengers have not been able to persuade the city. The city's Historic Resources Board concluded that the ballpark does not in fact constitute a historically significant structure. The Architectural Review Board and Planning and Transportation Commission have each voted to support the Verizon proposal. The council, after hearing the opponents' appeal, issued its approval of the project last December.
Opponents have maintained in their comments and in the lawsuit that, all the hearings notwithstanding, the process has been deeply flawed. They pointed to the design changes that Verizon made in the proposed application and argued the city and the company had "failed to initiate new analysis, or to provide new public notices, or to conduct new public reviews to reflect the on-going, unannounced and unilateral changes." They also maintain in their June 9 filing that the Historic Resources Board acted "arbitrarily and erroneously" in determining that the ballpark is not a historic resource; that the architecture board "denied due process and fair hearings" by receiving additional communication from Verizon; and that the council, by denying the appeal on its consent calendar, failed to provide a fair and impartial public-hearing process.
During the many hearings on the topic, they have also claimed that the tower is too tall for the area. Charlene Liao, who signed a declaration in support of the injunction, argued in front of the Architectural Review Board last year that the light pole "would negatively impact public views from the new Mitchell Park Library and Community Center."
"It would set a dangerous precedent for the city and, as a result, we plead for you to hold it to a very high aesthetic bar," Liao said.
The project's supporters have countered that these arguments are based on fears, rather than facts. Kristen Foss, board president of Palo Alto Little League, told the council in December that the project's opponents had been trying to delay the project with a variety of strategies, from complaining about the lighting from the new pole to attempting to designate the ballpark a historical structure.
"They've been trying anything they can find to try to shut Little League down," Foss said at the council hearing.
Attorney David Lanferman, who is representing the opponents, wrote in the amended petition that the implementation of the project will "cause irreparable and permanent harm to the environment, to petitioners, to the community surrounding the site, and to the public at large."
Zepeda proved somewhat sympathetic to the opponents' concerns about the process, particularly the council's decision to approve the item on the consent calendar, which includes a list of other items that get approved without discussion. She also faulted staff reports for having "compulsory statements rather than factual analysis," which she called "troubling." And even though consent-calendar approvals are routine in Palo Alto, the judge thought in this case the decision not to hold a full council hearing bolstered the opponents' arguments about a "lack of transparency."
"So I feel that there's an abuse of discretion in not having an open hearing, that the process was flawed," Zepeda said, according to the court transcript.
Rick Jarvis, an attorney representing the city, countered that the hearings were completely consistent with the city's process and that the judge's order to halt construction is erroneous. He also noted that Palo Alto is scheduled to host the Little League All Star Tournament on June 27.
"Unless this court intervenes, those coming to see the Little League All Star tournament will be greeted by the eyesore of an unfinished construction site," the appeal states. "What should be a shining moment for Palo Alto will instead be a public embarrassment."
In addition, the judge's order will continue to "deprive Palo Alto residents of adequate wireless service and cause the substantial and wasteful costs inherent in halting a construction project that was in progress with a carefully calibrated schedule," the city argues. Because the cell tower will be very similar to the light pole being replaced, "The project's impact on the neighborhood will be negligible, but the benefit for residents will be huge."
Jarvis argues that the trial court had "misapprehended its role" in granting the injunction and "erred in concluding that petitioners had made an adequate showing of irreparable harm." He also argued that the trial court had "misjudged the balance of hardships."
"As against real parties' non-existent harm and non-existent chances of prevailing on merits, the Little League, Palo Alto residents, and Verizon Wireless will all suffer irreparable harm if this Court does not vacate or at least stay the trial court's preliminary injunction."