Loading...
HomeMy WebLinkAboutCOM 0986.284 2018-2020 40,�� � Joseph K. Kamelamela Harry Kim 1.6%, Corporation Counsel Mayor +: t Renee N.C. Schoen Assistant Corporation Counsel COUNTY OF HAWAM OFFICE OF THE CORPORATION COUNSEL 101 Rupuni Street,Suite 325 • Hilo,Hawaii 96720-4262 • Phone(808)961-8251 • Fax(808)961-8622 I I July 22, 2020 4 Council Chair Aaron Chung and =. Council Members County Council County of Hawaii 25 Aupuni Street, Suite 1402 :7 Hilo, Hawaii 96720 .x,, } x .. Dear Council Chair Chung and Council Members: Re: Resolution 678-20 Relating to Small Wireless Facilities This letter is intended to provide an update with respect to County involvement with the installation of small wireless facilities by telecommunication companies within this county. On July 7, 2020,the Committee on Planning voted in favor of adopting Resolution 678-20. Moreover, at the committee meeting, Council members inquired as to whether, during the application process and prior to installation of the small wireless equipment, telecommunication companies can be required to submit a health report. Furthermore, days after the committee meeting, a Council member inquired as to whether the applicant can notify the adjacent landowners and/or community of its intent to install a small wireless facility within the area. ! The resolution does not limit its scope to only locating and installing small wireless facilities in County rights-of-way or County-owned facilities, including poles. But the resolution calls for telecommunication companies to cease the entire"buildout of 5Cr wireless infrastructure on this island"until after there has been independent research and testing to prove beyond a reasonable doubt that the radio-frequency microwave radiation("RF") is "safe to human health and the environment." A. Short Answers. County has no authority to require a telecommunication company to submit a health report that evaluates and establishes by proof beyond a reasonable doubt that the RF is safe to human health and the environment. County is requiring telecommunication companies to notify the public that an application has been submitted to install a small wireless facility and directing any public inquiry to the applicant. Comm.NQg•.Q 1�' Hawaii County is an Equal Opportunity Provider and Employdef.To: P[t,ees.sate 2 _ Council Chair Aaron Chung and Council Members July 22, 2020 Page 2 of 3 B. Legal Framework. In 2018 the State legislature passed H.B. 2651 mandating the counties,when appropriate, to allow communications service providers access to County right-of-ways and to attach small wireless facilities to County-owned utility poles, and to approve use permits within properly zoned districts for the installation of small wireless facilities. See Chapter 206N, Wireless Broadband and Communications Networks, Hawaii Revised Statutes, as amended("HRS"). Also, in 2018,the Federal Communications Commission("FCC") issued orders effectively requiring state and local governments to do the same thing. See FCC 18-133 (Declaratory Ruling and Third Report& Order, released on September 27, 2018); DA 18-1240 (Order Denying Motion to Stay, released on December 10, 2018). While federal regulations and State law mandate communications service providers be allowed such access there are no provision of the County's code or rules directly providing for or restricting this. Regardless, federal and State laws and regulations regarding wireless facilities would preempt any conflicting County laws or rules. There is also no legal basis to mandate the submittal of a health report that proves beyond a reasonable doubt that the RF is safe to human health and environment. In accordance with Telecommunications Act 1996, § 704(a) states: No State or local government or instrumentality thereof may regulate the placement, construction, and modifications of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions. Here,the federal law only requires that the telecommunication providers must state that the intended small wireless facility comply with the FCC's regulation concerning RF emissions. The County,however, may deny a proposed collocation of a small wireless facility only if the proposed collocation: • Interferes with the safe operations of public safety equipment; • Interferes with sight lines or clear zones for transportation or pedestrians; • Interferes with compliance with the American with Disabilities Act or similar federal or state standards regarding pedestrian access or improvement; • Fails to comply with reasonable and nondiscriminatory spacing requirements of general application adopted by ordinance that concern the location of ground- mounted equipment. Such spacing requirements shall not prevent a small wireless facility from serving any location; • Fails to comply with building or other applicable codes; • Causes the utility poles to be unable to bear the additional weight of the facilities, taking into account any state or county reservation of capacity authorized by this chapter; provided that a denial shall include a condition that the installation will be Council Chair Aaron Chung and Council Members July 22, 2020 Page 3 of 3 approved if the communication service provider agrees to replace, at its own cost,the utility pole with one that can bear the additional weight; or • Causes the load-carrying capacity of the State- or county-owned utility pole, building, or structure,to exceed seventy per cent as determined by the appropriate state or county agency. See HRS § 206N-6(10). C. Applications to Install Small Wireless Facilities. Generally, the location to install a small wireless facility will determine whether applications by the telecommunication companies will be filed initially with the County Planning Department("CPD") or County Department of Public Works ("CDPW"). However,while filing the application at the CPD or CDPW,the applicant must state that the small wireless facility "complies with the requirements of the [FCC] on [RF] emissions,"see enclosed "Telecommunication Towers Attachment to Special Permit or Use Permit Applications." Usually, for new towers, the applicant must seek approval from the Planning Commission for a special use permit. As noted previously, an applicant must state that the small wireless facility complies with the FCC's requirements on RF emissions. Id. In addition,there is a requirement for the applicant to notify adjacent landowners and/or community regarding the project: if the project is in an urban area, such notification is provided to the adjacent landowners and/or community within three hundred(300) feet of the boundary of the project; and if in a rural area, such notification is to be provided to the affected parties within five hundred(500) feet of the project's boundary. For collocation on existing structures, such as within County rights-of way, CDPW is considering having applicants submit documentation, along with an application, showing that the proposed installation will be compliant with RF emissions regulations; then, DPW will ask for post-installation field testing to ensure actual compliance with RF regulations. In addition, CDPW is requiring public notification by an applicant that an application has been submitted and directing any inquiries to the applicant. D. Summary. Based on the above-stated matters, the County has no authority to mandate the telecommunication service providers to submit a health report that proves beyond a reasonable doubt that the RF emissions is safe to human health and the environment. Furthermore, the County is requiring telecommunication service provider applicants to notify the affected property owners or community of proposed installations of small wireless facilities adjacent to them. Sincerely, p, Joseph-K.'P mela Corporation Counsel JKK:emc Enclosure ----------- ----------------- ON TOWERS ATTACHMENT TO SPECIA.1,RERWT OR USE PERMITAPPLIQkTIONS To addition to the requirements for sidimitthiga Special Permit or Use Permit Application, L, I please provide the folio-vying additional information when applyftig for a telecommunication tower What1. the Bia Tsland? Provide. a inap s your schoij.)afic plart for tower development on 0 and written description of-these sites, Justify how this particular subject site plays an i integral part it) this overall plan. 1 Building plans for the tower,certified by'a structiiral engineer licensed in the State of Hawaii,vera Eying,that the tower,together with initial antennas aid other eqLtipMCn f proposed to be installed thereon for co-location,are structurally sound and wind resistwit. 1 A design plan for the tower and appurtenant structures,including discussion.on tower selection and antemias,visual.impacts,color, I ig�iting,landscaping and safety. 4. A statement from the applicant that Ilic request complies with the Federa.1 Aviation Administration that the application has not been found to be a hazard to air navigation. 5. A statement from the applicant that the request complies with the regulations of the Federal Communications Commission,including requirements on radio frequency emissions, or a statement that no such conipliance is necessary. 6. A statement from the applicant that the proposed use will not interfere with the County of Hawaii public safety radio system. 7. A statement from the applicant that space on the tower for co-location of antennas or attachments will be made available to other providers,if this can be done without substantia interference to the applicant's use of the tower, If you are an infrastructure company, a commitment from a minima of two service providers shall be identified in the application- 8. A statement ftorn the applicant that diligent,but unsuccessful efforts to install or co- locate the applicant's telecommunication antennas on existing towers or feasible antenna support structures have been made. Identify those sites that you have investigated and explain how those sites are inadequate and how the site selected is the least obtrusive, 9. Provide justification for the height of the proposed tower by including propagation maps for the coverage area at proposed the height and at a lower height if the proposed tower is more than I 00-feet tall. If the site involves increasing the height of an existing tower, provide propagation maps to show analysis of signal duality at the existing and proposed height. M Have you met with adjacent landowners and/or community regarding the develol.'n-ricat? Provide information regarding those meetings.