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February 3, 2025
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The Honorable Ashley L. Kierkiewicz -
Chair, Policy Committee on Planning, Land Use, and Economic Development
County of Hawaii
25 Aupuni Street
Hilo, Hawaii, 96720
RE: Bill 24 - Amends Chapter 25 of the Hawaii County Code, Relating to Telecommunication
Antennas and Towers (Planning Director Initiated)
Aloha Chair Kierkiewicz and Members of the Policy Committee on Planning, Land Use, and Economic
Development:
On behalf of the undersigned organizations representing the wireless industry, we are writing to
respectfully suggest amendments to Bill 24, which would amend Hawaii County's
telecommunications code.
Wireless infrastructure is vitally important, both for the day-to-day lives of our communities and in
times of crisis, as we explain in detail below. Our principal concern is that certain provisions of the
Ordinance would unnecessarily limit placement of wireless infrastructure and could have the effect of
prohibiting the provision of personal wireless service contrary to federal law.
Wireless Infrastructure is Critical for the County
In emergency situations, a simple call or text message can make the difference between life and
death. The wireless industry coordinates with first responders and can mobilize to support local, state
and federal agencies in the event of an emergency. According to NENA: the 9-1-1 Association, "An
estimated 240 million calls are made to 9-1-1 in the U.S. each year. In many areas, 80% or more are
from wireless devices."' Specifically for Hawaii, the National 911 Program reports that nearly 82
percent of 911 calls are from wireless devices.' Wireless technology is thus essential for emergency
services and public safety.
i www.nena.org/7page=9llStatistics
' https://www.911.gov/issues/911-stats-and-data/
Wireless communications are a critical component in today's medical field as welt, allowing for
improved health services. Smart pill bottles and cases can help patients, and their caregivers track
medication usage, ensuring medications are taken on time and correctly. This tool supports increased
medical compliance, provides more consistent care, and enables preventative care, keeping patients
in their homes longer and reducing the number of emergency visits to the doctor's office or hospital.
Wireless connected glucose monitors, blood -pressure cuffs, and EKGs can track a patient's vital signs
and catch an issue before it turns into an emergency. Pacemakers and steep apnea monitors can be
tracked remotely. Routine eye exams can be conducted with a wireless device connected to a
smartphone, bringing solutions and services to low-income and remote areas that would otherwise
go unsupported.
Wireless communication services are vital for supporting our communities. With 76% of adults living in
homes without a landline phone,' recent increases in remote work, and many essential tools we use
every day moving to wireless applications, promoting a robust high -capacity wireless communications
network is more important than ever.
Given the importance of wireless connectivity, we are eager to collaborate with the Planning
Department and the City Council as we continue working to enhance wireless coverage for the
County's residents, schools, and businesses. However, we are concerned that certain elements of Bill
24 may hinder wireless deployments in communities in need of improved services. To that end, we
suggest the following specific amendments to Bill 24. The language that we propose be revised is
highlighted in blue.
Proposed Setbacks
The Ordinance includes several requirements and restrictions on the location of telecommunications
towers that cause significant concern; of most concern is the 1,200-foot setback from schools and
residences. We suggest the following changes to Section 25-4-12(d) of the proposed Ordinance:
(d) The minimum setback for jjM telecommunication towers M as follows:
(1) Telecommunication towers shall be set back from any propeu
line with a minimum distance equal to one hundred and twenty (120) percent of the tower
'National Center for Health Statistics, National Health Interview Survey Early Release Programs, Wireless Substitution: Early Release of
Estimates from the National Health Interview Survey, July -December 2023, released June 2024, available at:
https•//www cdc gov/nchs/data nhis/`earlyrelease/wireless202406 pdf.
Industrial zoning districts shall be exempt from the property line
setback requirement stated in Section 25-4-12(d)(1).
Reasons for Recommendations:
We strongly recommend that the County remove the requirement for the 1,200-foot setback from
residences and schools. Setbacks of this nature are very uncommon in wireless regulations. Such
excessive siting restrictions are unnecessary and further limit the ability to install wireless facilities
near where people work and live, where the demand for reliable wireless service is the greatest.
In the Planning Department Background and Recommendations document, a few example
jurisdictions are cited in support of the proposed setback. We would like to share additional
information regarding these jurisdictions:
Copake, New York, is a small town with a population of 3,400 and a land area of 14 square
miles. This jurisdiction is very different from Hawai'i County. Copake's relatively small size and
population mean that the need for wireless infrastructure in the town is limited compared to
the significant needs for additional wireless infrastructure in Hawai'i County.
Lane County, Oregon, is also cited as an example, but in certain cases, Lane County officials
have determined that the enforcement of this setback violated federal law, leading to the
approval of a wireless facility with a reduced setback. It is our considered opinion and
experience that these examples are exceptions and not the norm.
Additionally, many of the comments pertaining to the justification for the 1,200-foot setback appear
related to concerns surrounding radiofrequency (RF) emissions from wireless infrastructure. On this
matter, federal law is expressly clear that a state or locality may not regulate the location of wireless
facilities "on the basis of the environmental effects of radio frequency emissions."' As such, local
governments cannot base their policy decisions on wireless infrastructure on RF concerns. The
Federal Communications Commission (FCC) has exclusive authority over RF emissions and has
adopted rules that all wireless providers must meet and that also preempt any local regulations.
(Section 25-4-12(g) of the Ordinance separately requires compliance with all applicable rules,
regulations and requirements of various federal agencies, including the FCC.
If the County chooses to maintain the 1,200-foot setback, we suggest language that would allow these
limitations to be waived or otherwise made flexible when necessary to meet a wireless coverage or
capacity need so that this restriction does not become an effective prohibition of service contrary to
federal law and can enable the provision of wireless services where they are needed most.
4 47 U.S.C. § 332(c)(7)(B)(iv).
Finally, the proposed 120% setback, while not necessary for public safety, is also not uncommon.
While it is much more restrictive than the County's current setbacks of one foot for every five feet of
tower height, we do believe it can be accommodated in most cases. We appreciate the exception in
commercial and industrial zones where such setbacks would be potentially most challenging.
However, we suggest further flexibility for situations where a reduced setback would be appropriate -
for example, in cases where the tower is constructed with breakpoint technology or where the design
would provide for better concealment with reduced setbacks. We also ask that setbacks be waived
when a site is in the public right-of-way as setbacks are largely not applicable in those cases.
Deploying wireless facilities in the right-of-way is often an effective option.
Minimum Lot Size Requirements
The Ordinance's minimum lot sizes are similarly unnecessary, and we suggest that the minimum lot
sizes in proposed Section 25-4-12(c) be stricken. Larger lot sizes are typically not needed to address
visual impacts, and this provision would significantly restrict the number of locations that would be
feasible for future sites, particularly in areas that need service most. We appreciate the inclusion of a
process to allow for issuance of a variance to this requirement, but the requirement itself is not
needed. Factors like topography, natural screening elements, proximity to utilities, and other
logistical requirements are much more relevant in practice. To address aesthetic concerns, we
recommend the development of objective design standards.
Visual Impact Mitigation and Broad Director Discretion
We suggest the following changes to the proposed Ordinance:
Section 25-2-74(8)
(8) A visual impact analysis shall be provided and include:
(A) Mitigation measures to minimize the visual impacts of the tower;
(B) Before and after photo simulations from various locations and/or angles from which
the public would typically view the site: and
(C) A map depicting where the photos were taken The application shall demonstrate that
appropriate coloration, blending,
Section 25-4-12(k):
We recommend that Section 25-4-12(k) be replaced with specific guidelines for when visual mitigation
is required for a proposed wireless facility. This could best be accomplished by specifying the
Director's decision criteria in the Ordinance. The wireless industry does not have enough information
regarding the County's particular concerns to provide specific alternative language at this time, but
we would be happy to work with the Planning Department to draft language. Key questions that
would need to be answered to determine the best language include the following:
• What specific criteria define what properties and projects that might require mitigation to
be in alignment with the general plan?
• What kinds of stealthing would be most appropriate to encourage?
• Where would stealthing not be appropriate or required?
We recommend that the Planning Department meet with representatives of the wireless industry to
further discuss this language and other suggested revisions.
Reasons for Recommendations:
While the wireless industry recognizes the importance of minimizing visual impacts, the Ordinance as
drafted grants extremely broad discretion without clear guidelines and would greatly increase review
timelines for both County staff and the wireless industry. Instead, we recommend including
transparent and objective criteria for when and how these requirements would apply. If stealth design
is required, we request that there be standards specifying when these designs should be
implemented, ensuring that they are both reasonable and suitable for the type of infrastructure
needed and the context in which it will be placed, preventing unnecessary re -design and re -
engineering.
We also strongly recommend removal of the proposed language giving the Director the discretion to
move a proposed facility to an on -site or off -site location. A requirement that a facility be relocated is
effectively a denial, without any recourses available to an applicant in the event of an application
denial. Instead, we recommend that the Ordinance identify any specific limitations applicants must
comply with for clarity, consistency, and predictability. In addition, this discretion as proposed is
unnecessary given that the Department would already require applicants to provide information to
support a proposed wireless facility location, including a demonstration that less intrusive sites are
unavailable.
To provide further context, the discretion to require the applicant to move a facility on -site or off -site
creates significant challenges for the extensive siting process that applicants undertake prior to
application. The location of a proposed site considers numerous factors, including whether the
proposed location and height meets the coverage objective and is in a location that is acceptable to
the property owner. If the Department requires the applicant to move a facility to a different location
on the same parcel and that location or any other location does not work for the property owner, the
applicant will have to find another property for its wireless facility. Submitting for land use approval
also requires considerable due diligence and planning, including various feasibility reports and
environmental and cultural reports. Taken together, these processes require substantial investments
and time commitment. Clear standards allow the applicant to propose wireless facilities that meet
the needs of both the County and the wireless carrier without the need to repeat costly and time-
consuming studies.
We recognize that wireless is a highly technical subject matter and that there are numerous
approaches that a municipality might take when setting standards for the design of wireless
communications facilities. In our experience, meetings between industry working groups and
municipal staff are very useful and can lead to the development of standards that provide clear
guidance for both reviewing staff and the applicants. An industry working group, that is very similar to
the group represented here, recently held such meetings with the City and County of Honolulu as part
of their efforts to revise the regulations of wireless communications facilities. The process allowed for
the development of clear standards that meet the objectives of all parties. We encourage Hawai'i
County to take a similar approach to developing design standards that meet the unique needs of
Hawai'i County.
Surveillance Cameras
We suggest the following changes to Section 25-4-12(h) of the proposed Ordinance:
(h) To enhance wildfire detection and response capabilities, the
space for a surveillance camera system designed to monitor and detect wildfire activity as a
condition of Final Plan Approval. High -risk wildfire activity areas shall be determined by the
director in consultation with any relevant federal, state, and county emergency service
agencies.
Reasons for Recommendations:
The wireless industry supports partnership with emergency services on many levels and partners
closely with first responders. We do not have any concerns with the spirit of this language, but we are
concerned that the County may be opening itself to legal risk with the language as drafted.
Specifically, this provision may be considered an uncompensated taking of private property for public
use. 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."' 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.' We respectfully suggest that the County may wish to ask legal counsel to
evaluate this language with respect to this issue or modify the language to encourage rather than
require the collaboration between emergency services and the tower owner.
'Leone v. County of Maui, 141 Hawaii 68, 81, 404 P.3d 1257, 1270 (2017), 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 CATVCorp., 458 U.S. 419,102 S.Ct. 3164, 73 L.Ed.2d 868 (1982).
'Loretto v. Teleprompter Manhattan CAN Corp., 458 U.S. 419 (1982).
Evidence of Collocation Efforts
We suggest the following changes to Section 25-2-4(6) of the proposed Ordinance:
LAB A statement from 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:
(B) A map showing the sites that have been investigated with a detailed
A statement that the wireless telec ommunications provider commits to
allow a minimum of two other wireless telecommunications providers
to co -locate antennas on their proposed tower facilities wherever
structurally and technically feasible.
Reasons for Recommendations:
These suggested changes would allow applicants to meet the intent of the requirements within the
current best practices in the wireless industry. We have suggested specific changes to avoid a
situation where the County might be unintentionally effectively prohibiting wireless deployments.
Specifically, not all these standards are applicable to every kind of facility. Locations that are not
viable will be so for reasons that vary widely. Similarly, the nearby tower owner's opinion is not
necessarily the reason why a tower is not feasible for the applicant's coverage objective. Where an
existing tower is infeasible for reasons that are not pertinent to the owner's willingness to lease space,
the applicant would not inquire with the tower owner, nor would the tower owner necessarily be
willing to provide such a letter. Last, we suggest that subsection (D) be considered a stand-alone
section as it pertains to the applicant's willingness to allow collocation and not to efforts to collocate
on existing facilities.
Consistency with Federal Law
We suggest the following changes to Section 25-4-12(a) of the proposed Ordinance:
+
a A telecommunication antenna ortower shall be permitted in [he \!�!'AI GG,
e GV, MGX, M6, MG and GDR] all zoning districts; provided that the antenna,
tower, and its use are not hazardous or dangerous to the surrounding area and
the director has issued plan approval for such use. [" tele,.,,...,... unmeatien
UnlCITilp tenn-.e.-.�............ +. be p .mite, in the DC, RD, MA, DR V, RA, CA, A, IA
,
_...__ .b .... __......-........-..... -.-.. ., .. .-...-...........—...... —
s eh use. Co -location of antennas upon an existing privately owned tower and
Reasons for Recommendations:
These above changes incorporate by reference the relevant provisions of federal law. Specifically, we
suggest adding "or other relevant approval" because the County's prior siting approval of the existing
tower or support structure may have been an approval other than a plan approval. Under Section
6409 (47 U.S.C. §1455), the existing facility must have been approved under the zoning or siting
approval process in effect at the time of the approval.' We also suggest the addition of "or base
station" or "or other antenna support structure" because Section 6409 applies to both towers and
other support structures, such as building rooftops, which are defined by the FCC as "base stations."'
Finally, we suggest citing the applicable federal regulation in Section 25-2-12(a) so both applicants
and planning staff are directed to the correct criteria.
Wind Speed Standards
We suggest the following changes to Section 25-2-74(2) of the proposed Ordinance:
verifying that the tower, "' [tegetheFwith the initial ante nna5 and
,] at full build out inclusive of all potential
antennas and equipment, will have a hard survivability for sustained winds of one hundred
thirty miles per hour
Reasons for Recommendations:
Our industry supports robust structural requirements. These changes would ensure that standards
account for the review process for siting and engineering wireless facilities and remain current into
the future. We suggest referencing the County's building code requirements to ensure that the
standards are consistent.
It is customary practice to engineer a tower during the period between planning approval and
building permit. Often the specific details of tower design are completed after land use approval so
that any relevant conditions of approval can be taken into consideration during the tower engineering
process before submission for building permit. For these reasons, we suggest that either the wind
' 47 C.F.R. §1.6100(b)(5).
e 47 C.F.R. §1.6100(b)(1).
speed language be omitted here and included in the building code or that the language here consists
of a commitment on behalf of the applicant, which is more relevant at this stage in the project.
Thank you for considering our suggested revisions and for hearing our concerns. We are sincerely
grateful for your efforts to update the County's wireless regulations, and we are pleased to partner
with you in this process. We look forward to further collaboration to achieve a comprehensive
ordinance that benefits the communities of Hawaii County.
Sincerely,
AT&T
Crown Castle
CTIA
Dish
T-Mobile
Verizon
WIA