Debate over wireless facility moves to the courtroom

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Sprint will be allowed to build the facility, although it would have to remove it if it loses the case. Point Dume residents Daniel and Laure Stern say conditional use permit issued to Sprint is void because it does not adhere to the environmental quality act.

By Richard Heater/Special to The Malibu Times

A hearing has been set for July to deal with the controversy over a wireless telecommunication facility to be built in the Malibu community of Point Dume. The facility is one of 30 new wireless sites proposed by Sprint PCS’s CMI replacement project. The plaintiffs in the case, Daniel and Laure Stern, were not granted a preliminary injunction against Sprint to prevent the building of the facility while the case is being decided. However, the court did get Sprint to promise it would remove the facility if the petitioners prevailed in the case, said attorney J. Michelle Hickey with the law firm Holland & Knight LLP, which represents the Sterns.

The arguments involving construction at this location date back to December 2002, when the city of Malibu issued a conditional usage permit (CUP) allowing Sprint to begin installation. The Sterns have been petitioning against the city of Malibu’s decision to issue the CUP. According to a court brief written by the Stern’s attorney, the city issued the CUP without first assessing the environmental implications of the wireless site, both in terms of physical invasiveness and aesthetic damage to the community. The document also claims the city failed to consider the maintenance requirements of the facility when combined with that of the other 29 new sites, which would require an increase in utility and construction vehicles to the area. Instead, the facility was reviewed individually.

The Sterns have made several appeals to Malibu’s Planning Commission and City Council, which both ruled to uphold the permit issued by the city’s interim planning manager.

The matter entered the legal realm in January when a bulldozer arrived at the site near the Sterns’ home. The presence of a bulldozer for any reason would violate the CUP, which allowed for the “installation of a wireless telecommunication facility consisting of two panel antennas mounted on an already existing utility pole.” The permit did not allow for any onground or underground construction. The residents claim they were not notified that any construction would be taking place at the site until the appearance of the bulldozer. Feeling threatened by the machine’s presence, the Sterns took immediate action. In an e-mail sent to The Malibu Times, Laure and Daniel Stern wrote, “When bulldozers arrived we had to resort to blocking the work site with our cars while lawyers filed a temporary restraining order with the court.” The temporary restraining order, halting any further developments at the site, was issued in a Jan. 9 hearing.

The petitioners are resting their case on stipulations set forth under CEQA (California Environmental Quality Act). The Sterns argue that the CUP is void because it does not adhere to CEQA standards. Prior to receiving the permit to continue with their project, Sprint received a Notice of Exemption, exempting it from CEQA provisions. It is the Sterns’ opinion that the city improperly issued this exemption when it failed to consider the impact of all 30 facilities. The standard set by CEQA requires that a project in question have “negligible” expansion of an already existing structure. According to figures estimated by a Sprint representative in its testimony before the city of Malibu, Sprint’s project will require up to 300 days of construction work. This would result in an increase of construction vehicles on the road, an elevation in noise and aesthetic damage to the area, making the project greater than “negligible” and ineligible for exemption, argue the Sterns’ attorneys.

It is the belief of the Sterns that corporate intimidation may play a role in the City Council’s decision making. Laure and Daniel Stern wrote in the e-mail to the Times that some of the City Council members “listened to slanted advice from their attorneys who were more intimidated with the prospect of a lawsuit from Sprint than upholding the character of Malibu and the rights of the ordinary citizen.” The Sterns continued, “Our City Council has not had the vision or foresight to plan this for our community.”

City Attorney Christi Hogin did not return phone calls for this story. However, City Councilmember Sharon Barovsky disagrees with the notion that the City Council acted with anything other than the citizens’ best interests in mind. “We thought we were doing what they [the citizens] wanted,” Barovsky said. “Apparently not.”

The Sterns believe other communities can be used as a model for the Malibu wireless setup. They wrote, “In many places local governments have been able to reach compromise agreements and adopt zoning ordinances that direct the type of construction used for these projects and forces the shared use of facilities by multiple companies.” The Sterns later continued, “We think a favorable ruling on our petition would give them [the City Council] a second chance to take a look at this and future projects with regards to the environment and citizen needs.”

It is not the Sterns’ goal to stifle the development of Malibu they wrote. Rather, it is their goal to raise awareness among Malibu citizens as to the “impact of the construction of these projects in front of their homes and on their streets.” Further, it is to insure that laws affecting both the physical community and its residents are respected. The Sterns added, “We are not against growth for Malibu, we are for smart growth. And this piecemeal approach is not only illegal but ill conceived.”