While the Federal Communications Commission grants cell phone companies broad and seemingly unassailable discretion in arranging a site and deciding on equipment, the town's Planning Commission has found what it thinks is a chink or two in T-Mobile's armor.
In a 4-1 vote, with Commissioner Chip McIntosh in opposition, the commission decided at a standing-room-only meeting on July 7 that T-Mobile's application for a conditional use permit failed on aesthetic grounds, reasoning that the courts have yet to address a cell phone company's discretion in a small, semi-rural town like Portola Valley.
The commissioners also questioned the validity of competing maps from the company and from an independent technical firm hired by the town to cross check T-Mobile's claim of gaps in phone coverage.
Proving that there is a "significant gap" in coverage is critical to T-Mobile's case.
In forming a motion for the commission to vote on, Commissioner Nate McKitterick said the company has not demonstrated a significant gap and that the tower would impose "an undue visual impact contrary to the spirit and natural beauty of Portola Valley." The audience applauded the vote.
In opposition, Mr. McIntosh noted that the streets are already studded with poles, that other cell phone companies may apply for antenna space, and that the site, owned by California Water Service, is "a good place to do it."
By federal law, the town's four-month window for making a decision closes July 22. Missing the deadline would open the door for T-Mobile to sue the town, Planning Manager Leslie Lambert told The Almanac.
The town's chances in court were a weighty question for the commissioners, but should not be discussed in open session, acting Town Attorney Don Siegel said. He did add that a case based on concerns like Portola Valley's has no precedent in the region's federal appeals court.
The commissioners, who agree that there is a gap, question whether it is significant for Portola Valley's building and population density and the proximity of an arterial roadway where cell phone coverage is presumed.
T-Mobile has 30 days to appeal the Planning Commission's decision to the Town Council.
In his remarks, T-Mobile's attorney Paul Albritton of the San Francisco firm Mackenzie & Albritton, told the commission that T-Mobile purchased its cell phone frequencies and must use them or lose them.
"T-Mobile is not in the business of coming in and harassing communities," he added. "I hope you can look at cell phone service as a public service to communities."
Mr. Albritton reminded the commission that complaints about lower property values have no legal standing, nor do complaints about electromagnetic emissions from the antenna. (The emissions will be 100 times below federal emission standards, said an engineer representing T-Mobile.)
The town explored alternatives other than a tower, but the outside technical review found alternatives inappropriate. In any case, Mr. Albritton said, a court in New York recently ruled that authority on which technology to use rests with the FCC, not the community.
No neighbors support this tower proposal and the town's Architecture & Site Control Commission rejected a permit on a unanimous vote, commissioners said.
In making T-Mobile's case, Mr. Albritton mentioned more than once a San Francisco judgment that had gone in favor of a cell phone company.
Commissioner Lea Zaffaroni, who commended T-Mobile for its good-faith efforts, said that Portola Valley has a different value system. "We would rather have these (towers) subordinate to the natural surroundings."
Town Planner Tom Vlasic has recommended that the tower, if there is one, be hidden inside a somewhat taller faux pine tree called a monopine.
Commissioner Alexandra Von Feldt questioned Cal Water's promise to shield the monopine with new trees in place of the currently dying stand of trees. With the rocky soil, it will be "extremely hard, if not impossible, to grow new trees to screen this," she said.
With the current stand of trees under duress, Commission Chair Denise Gibson said, "There's going to be a time when you have this 50-to-60-foot (fake) tree sitting there with nothing around it." This argument might help the town's case in court, she added.