2024-09-18 Elizabeth Songvilay AT & T Testimony

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Legal Concerns with Proposed Draft Code The proposed 1200-foot setback is contrary to federal law. The Department proposes a setback for all towers of "at least 1,200 feet from nearby residences and schools not on the subject property." Proposed Subsection 25-4-12(d)(2). Under federal law, a local jurisdiction is preempted from considering the environmental effects of radio frequency ("RF") emissions (including health effects) in regulating the placement of proposed wireless facilities.3 This means a local jurisdiction cannot regulate, deny, or condition a wireless facility based on concerns about RF emissions.4 An example directly relevant here, is a case in New Jersey where a 1000-foot tower setback condition was determined invalid and stricken.s In response to the local jurisdiction's argument that the setback was for aesthetic purposes, the court noted that such a setback "is of little if any significance regarding aesthetics."6 The Department's stated rationale for this proposal is a "broader trend of using substantial setbacks to manage safety risks, visual impacts, and community concerns with placement of telecommunication towers near residences and schools."7 AT&T disagrees that there is a "broader trend" of using setbacks greater than a tower -height setback from a shared property line; to the contrary, the jurisdictions cited by the Department are outliers. One of the examples listed by the Department is Copake, New York, which is a town of 3,400 people and 14 square miles in size. Based on the town's size and population, Copake does not require many wireless facilities. Lane County is the only jurisdiction that AT&T's team is aware of in the Pacific Northwest (Oregon and Washington) that has such a large setback from residences and schools. Although the 1,200-foot setback remains in Lane County's zoning code, AT&T is aware of at least one instance where a local decision -maker found application of this setback to be in violation of federal law, resulting in Lane County approving the facility with a lesser setback. Specific "safety risks" are not identified in the Department's rationale. In AT&T's view and in typical wireless codes, issues related to a "fall zone" are adequately addressed by the proposed 120 percent setback from property lines, provided however, that an exception to the setback be granted for towers constructing using breakpoint technology.$ In addition, the current building code, including structural code requirements, significantly reduces the likelihood of falling towers. 147 U.S.C. § 332(c)(7)(B)(iv). 4 AT&T Wireless Services v. City of Carlsbad, 308 F.Supp.2d 1148 (S.D.Cal. 2003)(a denial may not be indirectly based upon concern over the environmental effects of RF emissions and how such concern may impact property values); Sprint Spectrum L.P. vs. Ringwood Zoning Board, 898 A.2d 1054 (2005)(a 1000-foot setback is preempted). 5 Sprint Spectrum L.P., at 1059. 6 Id. at 1059. Planning Director's Report, PL-PDI-2024-000008, Background and Recommendation, July 23, 2024, p. 13. 8 With breakpoint technology, towers are engineered to collapse on themselves, significantly reducing a fall zone to less than tower height.