2024-09-18 Elizabeth Songvilay AT & T Testimony

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Fear of alleged health effects of RF emissions is a typical "safety risk" raised during the review of a proposed wireless facility. However, such concerns are not a permissible basis on which to regulate a wireless facility, as explained above. Moreover, "community concerns with placement oftelecommunication towers near residences and schools," also listed in the Department's rationale, seem to be tied to the community's expressed concerns with alleged health effects. AT&T believes that potential visual impacts are adequately addressed by other proposed provisions of the code, such as stealthing and concealment requirements, as well as the 120 percent setback from shared property lines. These provisions are the typical visual mitigation in a zoning code. AT&T joins Crown Castle9 in suggesting that the 1,200-foot setback be deleted from the proposed code. Requiring a tower owner to _ give space on a tower to a public body is an unconstitutional taking. The Department proposes a new subsection requiring a tower "to provide space for a surveillance camera system designed to monitor and detect wildfire activity as a condition of Final Plan Approval." Proposed Subsection 25-4-12(h). This provision is an uncompensated taking of private property for public use.10 In response to a similar law in New York that required landlords to allow television cable companies to install cable facilities in their apartment buildings, the United States Supreme Court held the law was a taking.11 AT&T suggests that this subsection be deleted from the proposed code. We want to note, however, that even if this subsection is deleted, its absence does not mean AT&T will not consider a request from another entity to collocate equipment to a structure we own. It is possible that allowing collocation simply is not possible for a number of reasons, including available space and structural integrity. Minimum lot sizes — Zoning regulations may not have the effect of prohibiting wireless Servire, 12 AT&T is concerned that the proposed minimum lot sizes for a tower installation may have the effect of prohibiting wireless service, which would make this requirement contrary to federal law. For context, a minimum lot size such as is proposed is highly unusual; jurisdictions typically rely on setbacks to property lines to regulate placement of towers within a site. While the Department's recent amendments to the proposed code change limit the applicability of the five -acre minimum to agricultural and open space zones (see Proposed Subsection 25-4- 9 Planning Director's Report, PL-PDI-2024-000008, Background and Recommendation, July 23, 2024, Exhibit 9. 10 The County's proposed regulation is a "physical" taking rather than a "regulatory" taking because it is a "regulation[] that compel[s] the property owner to suffer a physical `invasion' of his property." Id. at 1270, quoting Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). See also Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982). 11 Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). 12 47 U.S.C. § 332(c)(7)(B)(i)(11).