HomeMy WebLinkAboutCOM 0110.002 2024-2026P / PMUEO
5112W
Aloha PCPLUED Committee Members,
Thank you for your attention to the proposed telecommunications ordinance. I hold a PhD in
Communication, and am the Founding Director of Safe Tech Hawaii, a grassroots, all -volunteer
coalition, educating and advocating for safe technology across the islands. I have over 20 years
of experience in consumer wireless education. I'm writing on behalf of Safe Tech Hawaii in
opposition of Bill 24.
This process of duel ordinances has been extremely difficult for the community. It's confusing
to have competing ordinances on the same issue. The actions of the Planning Department
caused delays behind the scenes, and then with two ordinances ping-ponging back and forth
between the two planning commissions for months on end, sometimes resulting in the item not
even being heard - as happened here in your January 21 meeting - how could the average
person, with family and work obligations, track all of this or even begin to understand it?
Bill 24 was written by former planning Director Zendo Kern who was appointed by the previous
administration. It is the duty of publicly elected council members to author legislation. With Bill
194 already introduced by a duly elected council member - only to have a non -elected official
submit a competing ordinance later on - is unprecedented.
In an attempt to further derail the council member's efforts, the former Director went on to
give that bill an unfavorable recommendation while favorably recommending his own. The
former Director's ordinance goes far beyond simply updating the code to bring it into
compliance with state law, a law that's actually been on the books for years (we couldn't help
but notice that timing). It's hard to interpret the former Director's actions as anything other
than an attempt to usurp the Council's legislative power. We hope you won't let him succeed at
that.
Please note that under the "Pubic Comments" section of the former Director's proposed
ordinance, now Bill 24, he listed nothing but telecommunications corporations and
telecommunications advocacy groups. There was no actual input from the community - only
from telecom. And there are several instances in which the CTIA, in their oppositional
comments to Bill 194, included language that seems directly lifted from the former Director's
comments. This is very telling.
Below I address each of the former Director's concerns about Bill 194 and show how they are
unfounded.
1) Bill 194 Section 25-2-74(1)
This Subsection requires a plot plan showing the location of the proposed antenna or
tower and all buildings and uses within 300 feet thereof. The former Director claimed
this requirement is excessive without providing any rationale for his assessment. This is
ironic because he stated that lack of a detailed rationale for this requirement was a
"particularly significant" concern and grounds for an unfavorable recommendation.
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Since both Bill 194 and Bill 24 contain setback requirements for residences and schools,
one could easily see how a plot plan showing buildings and uses could be very helpful.
Further, the rationale for this requirement could have been easily attained had the
former Director simply asked, as the draft ordinance was shared with Planning over six
months before the he introduced his ordinance. Cooperation was demonstrated by
Council Member Evans, but not by the former Director.
2) Bill 194 Section 25-2-74(5)
This Subsection proposes a report prepared by a licensed professional electrical
engineer certifying that the proposed use complies with all applicable standards and
regulations, including RF emissions regulations set by the FCC and the state of Hawaii.
The former Director raised three concerns:
First: He stated that the FCC already regulates RF emissions so an additional report is
redundant; yet, ironically, his Bill 24 requires an additional report from the FCC verifying
compliance. Why is that not redundant?
Further, his requirement that the FCC provide a statement of compliance or that no
compliance is necessary is of grave concern. Obtaining such a statement from the FCC, a
Federal agency that is not equipped to provide such statements to local jurisdictions
across the U.S., could take weeks and violate the 60-day approval timeline mandated by
HRS 4689.
Second: The former Director stated that the proposed report places responsibility on
planners who lack technical expertise to review technical engineering reports; however,
no such burden would be placed on planners. The responsibility is with the licensed
professional who prepared the report. As is customary, planners simply would check a
box indicating that the report was provided.
A report by an independent professional is absolutely necessary because the FCC does
not send representatives onsite to test RF emissions, so there is no way to verify
compliance. According to telecommunications attorney Andrew Campanelli who has
successfully won lawsuits against telecommunications corporations, independent
testing done in other jurisdictions has shown instances in which RF emissions exceeded
the FCC guidelines. This is deeply troubling for the community because the FCC has
some of the most lenient emission standards in the world.
Third: The former Director stated that this report requirement could conflict with
federal law as local governments cannot impose stricter RF standards than the FCC. How
can a report certifying compliance with Federal Law conflict with Federal law? There is
absolutely nothing in the proposed ordinance that would impose stricter RF standards
than are required by Federal law - quite the opposite. Again, the proposed requirement,
as stated, is to ensure compliance with Federal law. To suggest it potentially violates
Federal law reflects an inability to properly understand the ordinance. Or maybe there's
something else at play?
3) Bill 194 Subsections 25-2-74(6), (7), (8), (12), (13) and 25-4-12(i)(3) & (4)
These Subsections constitute plan approval application requirements. The former
Director stated that these sections are outside the purview of Planning but this is not a
valid claim as there is nothing unusual about these sections. Conditions such as these
are routine for various permit applications here. They include conditions such as flood
control, fire prevention, Department of Health requirements, County code compliance,
and so forth. In addition, jurisdictions across the country have implemented ordinances
such as Bill 194 through their local planning departments. It's common practice here
and elsewhere to include such provisions.
4) Bill 194 Subsection 25-4-12(f)
This Section states that "the director may [emphasis mine] engage a private consultant
to inspect and determine whether the proposed use violates any" FCC standards
provided that the consultant's time not count toward the time limit.
The former Director repeatedly and incorrectly stated that Bill 194 includes the "Use of
Private Consultants" when there is no required use of private consultants anywhere in
the bill. His claim is misleading as the proposed ordinance does not mandate hiring a
private consultant. The choice to engage a private consultant is mentioned once, is
optional, and is at the discretion of the Director.
Then former Director Kern raised four concerns. First, he stated that "engaging private
consultants may significantly raise costs for the County, creating unnecessary financial
burdens," but this claim is alarmist and unfounded. Again, the proposed ordinance does
not require hiring a private consultant. The choice is optional and at the discretion of
the Director.
Second, he stated "the current wording suggests that the consultant's determination
occurs after Plan Approval" but this claim is unfounded as the language refers to "the
proposed use" which indicates this option is part of an application process and does not
occur after Plan Approval. Even if the language needs to be tweaked a bit, that hardly
constitutes a "significant concern" that merits an unfavorable recommendation.
Third, the former Director stated that "it would be more logical to hire a consultant
before Final Plan Approval rather than afterward" but, again, the language in this
Section refers to "the proposed use" which indicates this option is part of an application
process and does not occur after Plan Approval.
Fourth, the former Director stated that "relying on private consultants could introduce
delays in the approval process" that may violate the 60-day timeframe mandated by
HRS 4689. Again, this claim is unfounded and alarmist because nothing in Bill 194
includes "relying on private consultants". The choice to engage a private consultant is
mentioned only once, is optional, and is at the discretion of the Director.
5) Bill 194 Section 25-4-12(h)
This Section describes tower siting prioritization. It says:
(h) Telecommunication antennas and towers shall be sited in accordance with the
following order of priority:
(1) On building sites with existing telecommunication antennas or towers;
(2) On industrial zoned lands;
(3) All other lands, exclusive of industrial zoned lands and residential zoned lands;
and
(4) Residential zoned lands.
The former Director stated five concerns.
First: His stated concern was that it's "unclear how staff should prioritize applications
across zoning districts", which is confounding since the proposed Section describes
exactly how applications should be prioritized.
Second: He stated it "lacks guidance on whether applicants must analyze unviable
lower -priority sites." This statement is baffling. Why would an applicant need guidance
about analyzing unviable lower -priority sites? Why was this even a concern? And even if
it was a valid concern, telecommunications corporations have endless resources at their
disposal. They are free to do any and all analyzing of unviable, low -priority sites if they
so choose without that being stipulated in an ordinance.
Third: The former Director stated it's "uncertain if staff must deny applications for
underserved areas without proper zoning or suggest alternative sites", a concern that
could easily be remedied.
Fourth: He stated that "prioritization could delay permitting, exceeding the 60-day
approval timeframe" but he gave no rationale for what could cause such delays, so at
this time that claim is purely speculative.
Fifth: He stated that "Enforcement remains undefined." If Planning is doing its job, they
will adhere to the prioritization and no enforcement would be required. Was the Former
Director suggesting planners may not adhere to the law and need to be policed, in
which case all of the provisions would need enforcement, not just this one?
Finally, Bill 24 exempts eight zoning districts from setbacks. This is of grave concern as
several of those zones have residential and schools nearby and even mixed in, so those
zones should not be exempted from setbacks. Further, Bill 24 requires a 1200-foot
setback for residential and schools and, given the proximity issue, this could potentially
create a planning nightmare in trying to differentiate the setbacks versus exemptions.
Such exemptions could delay permitting and exceed the 60-day approval timeframe
mandated by HRS 4689. To avoid this potential violation, the easy remedy would be to
uniformly require setbacks with no exemptions, which is exactly what Bill 194 does.
Thank you for your kind and thoughtful consideration of our comments. Please feel free to
reach out with any questions.
Sincerely,
E-.
Debra Greene, PhD
Founding Director
Safe Tech Hawaii
808-874-6441
debra@SafeTechHawaii.com