“We’ve been walking a legal tightrope here trying to make our ordinance as strong a possible but yet keep the county out of long litigation,” said Supervisor Dennis Rodoni, who served with Supervisor Damon Connolly on the subcommittee that helped draft the new rules for the next generation wireless telecommunications technology.
“We’re not ignoring the health concerns but we can’t regulate it; the federal government does that,” Rodoni said. “I think we kind of hit the sweet spot because we’ve got both sides saying postpone this thing.”
Connolly said, “I believe this ordinance strikes a difficult balance given the current state of federal law.”
In his staff report, Community Development Agency Director Brian Crawford made it clear that the county has little legal leeway to restrict installation of the antennae.
The new 5G, or fifth generation wireless technology, uses higher-frequency waves than 4G. The waves support faster speeds but don’t travel as far, so more and smaller transmitters will be needed and located closer to users, which increases the anxiety of people worried about health effects.
Last year, the Federal Communications Commission adopted new rules further limiting local jurisdictions’ ability to regulate these “small cell wireless facilities.”
Under the new rules, local jurisdictions have 60 days to review applications for 5G antenna attachments to existing structures and 90 days for attachments to new structures. Any administrative appeal must be completed within this time period.
The FCC order in September has been challenged by Marin County and several coalitions of municipalities in court and that litigation is pending in the 9th Circuit Court of Appeals. In January, however, the courts denied a request by the municipalities to stay the FCC order until the litigation was resolved.
In his staff report, Crawford said he had received “voluminous public correspondence on the draft regulations.” He said recurring themes included concerns over the health effects of emissions, the desire to prohibit installation of 5G in residential and mixed-use areas and and calls for a ban on 5G in Marin.
On Tuesday, more than two dozen people urged the supervisors to do more to resist the rollout of the antennae.
“At this point we feel the ordinance is not strong enough,” said Jess Lerner of Fairfax, a member of 5G Free Marin. “We urge you to look over the peer-reviewed literature and extensive medical and scientific information we’ve shared with you, which are are reliable, science-based and conclusive articles about the negative health impacts around this exposure.”
Connie Barker of Novato said, “I urge you as members of this board and I urge you as citizens to seriously look at this train and ask if it is one you want to get on or if it is one you ought to be lying down in front of.”
At the same time, Crawford said Verizon Wireless sent the county a letter stating that the county’s proposed standards were too restrictive.
At Tuesday’s hearing, Paul Albritton, a lawyer representing Verizon Wireless, said, “I have to say we still don’t think the language is up to snuff.”
Albritton said was the first time he had heard the county was going to prohibit putting antennae on wood telephone poles.
“Verizon Wireless is a part owner of those wood poles,” Albritton said, “so saying an antenna can’t go on a wood pole is essentially a denial of property without due process.”
Under the rules approved by supervisors on Tuesday, companies seeking approval for new antennae would be required to provide a radio frequency report certifying compliance with federal standards, photo simulations and permitting fees. Companies proposing to locate an antenna on a new freestanding pole or similar structure will be required to demonstrate why another location is technically infeasible.
The rules allow no more than one 5G antenna per pole and prohibis placing antennae on ornamental street lights and pedestrian light poles or on sites with historical buildings. The rules also do not allow 5G antenna within 1,500 feet of schools and require antennae to be located a minimum of 1,000 feet apart.
Due to the short review period allowed by the FCC, appeals will go directly to the Board of Supervisors.
In his staff report, Crawford said some cities have adopted regulations banning installation of 5G antennae in residential zones. He added, however, that all of the examples reviewed allowed for exceptions to the extent the regulation violated federal law by effectively prohibiting 5G services in those zones.
Crawford wrote that if Marin banned 5G antennae in residential zones, the result could be a large number of exception requests that would “ultimately reduce the county’s ability to exercise local control, as an applicant would have a relatively easier task in establishing the need for an exception if it is effectively prohibited from siting facilities in broad swaths of the county.”
Similarly, Crawford wrote that staff did not recommend adoption of a moratorium because an FCC ruling in August declared that enactment of “urgency ordinances that have the effect of express moratoria or de facto moratoria violate federal telecommunications law.”
©2019 The Marin Independent Journal (Novato, Calif.). Distributed by Tribune Content Agency, LLC.
