HomeMy WebLinkAbout2024-12-02 Cindy Evans Testimony Bill 194 From: Cindy Evans
To: WPCtestimonv
Subject: Testimony WPC Dec.5,1p.m.agenda
Date: Monday,December 2,2024 6:12:33 AM
Attachments: Evans Testimony Bill 194.docx
Please see attached (4 pages) testimony for:
PL-CCI-2024-000009 (Bill 194)
Testimony PL-CCI-2024-000009(Bill 194)
December 1, 2024
Aloha Commissioners,
I write as the author of Bill 194 and Councilmember for Council District 9, North Kohala and South
Kohala, and ask for your favorable recommendation.
During the fall of 2023 1 submitted a draft bill(now known as Bill 194)for review by Corporation
Counsel. The bill was a response to numerous meetings with residents of the North Kohala and
South Kohala communities who had concerns about lack of requirements for installation of cell
towers and antennas. The proposed application requirements and regulations for the installation
and up-keep of infrastructure should accommodate this ever-changing technology.
The biggest consideration when I wrote the bill was to find out what a county level ordinance could
legally do and not do. I did a broad search of local ordinances across the country for tried and
tested regulations. I talked with the FCC(Federal Communication Commission) , FAA(Federal
Aviation Administration) , HUD (Federal Housing and Urban Development), DHHL(State
Department of Hawaiian Homelands), DLNR(State Department of Land and Natural Resources,
PUC (State Public Utility Commission), County Fire department, County Department of Public
Works, County Civil Defense, and County Planning Department. Some specifc highlights of my
research are provided below.
FCC
Regardingr the provisions of Bill 194, FCC informed me that FCC's regulations are a"floor"and
local governments may enact stricter laws (such as HRS 46-89)to create a higher"ceiling", as long
as it didn't give the power to outright prohibit or create a moratorium on broadband infrastructure in
anyway. One FCC requirement of note was that, if there are any disputes on the installation of a
given broadband infrastructure,they must be resolved within 180 days.
During the November 21 Leeward Planning Commission hearing on Bill 194, County lawyers sited
Chapter 47 subsection 7(c)(iv) of the USC that states that"no state or local government or
instrumentality thereof may regulate the placement, construction, and modification of personal
wireless services facilities on the basis of the environmental effects of the radio frequency
emissions to the extent that such facilities comply with the commission's (FCC) regulations
concerning such emissions." During my discussions with the FCC, I raised all the provisions of the
bill that were a higher ceiling of regulation currently in USC Chapter 47, Hawai`i County Code or
Hawaii Revised Statutes and they confirmed that theywere all permissible under Federal Law
because none of them were in anyway either a prohibition or moratorium on the installation of
broadband infrastructure, nor were they in violation of federal law under USC 47(c)(iv) because
none of the requirements proposed in Bill 194 uses a metric for RF(radio frequency) exposure to
provide any further regulation of broadband infrastructure. Whereas Bill 194 concerns itself with
construction parameters, planning parameters, zoning, disaster preparedness, notification and
transparency, as well as preservation of neighborhood characteristics. In short, The plan approval
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will never be subject to what the RF(radio frequency) emissions are. The current bill language only
requires an affirmation relating to FCC compliance and RF(radio frequency) levels.
CORPORATION COUNSEL
Corporation Counsel, Elizabeth Strance, after reviewing draft bill in late 2023, asked me to pause
and wait for the Planning Department who was updating code on broadband related permits in
response to update of HRS(Hawaii Revised Statutes) 46-89, more specifically:
"A county shall approve, approve with modification, or disapprove all applications for
broadband-related permits within sixty days of submission of a complete permit application and
full payment of any applicable fee. If, on the sixty-first day, an application is not approved, approved
with modification, or disapproved bythe county,the application shall be deemed approved by the
county."
"No action shall be prosecuted or maintained against any county, its officials, or employees
on account of actions taken in reviewing, approving, modifying, or disapproving a permit
application pursuant to this section, or against public utilities resulting from such actions."
Corporation Counsel suggested I work with Planning. I agreed.
RESEARCH: Local Ordinances
Staff and I researched municipalities that have passed ordinances that regulate the permitting of
broadband infrastructure. Note that many of these provisions go above and beyond what is stated
in Bill 194.
Davis CA: Permit approval of broadband infrastructure
• Annual or bi-annual RF emission monitoring report, including any FCC updates.
• At director's discretion, qualified independent RF engineer or consultant review, paid for by
the applicant.
• Optional periodic review by county.
• Prohibition in sensitive areas: habitats, school sites, and historical resources.
Calabasas CA: Permit approval of broadband infrastructure
• Provides for noise limits on broadband infrastructure, including a noise study.
• Decommissioning: Site must be restored reasonably close to original condition.
• Requires structural analysis by licensed engineer.
• All planned radio frequency emissions stated in proposal.
Copake NY: Permit approval of broadband infrastructure
• May hire independent consultants, paid for by applicant.
• Provides for monitoring protocol, paid for by applicant, including pre-testing and post
testing, to ensure compliance with FCC regulations.
• Requires radiated signal propagation studies, signed by a qualified radio-frequency
engineer, paid for by the applicant.
• Requires public hearing.
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• 1500 ft setbacks for residences, schools, any public buildings.
• Prohibited in endangered species habitats and other areas; must submit an E.A. where
applicable under the National Environmental Policy Act (NEPA).
• Regular structural inspections, paid for by applicant.
Sallisaw OK: Permit approval for broadband infrastructure
• Residence setbacks of 1500 ft for towers having a height of 75 feet or less.
Euclid Ohio:Application Requirements
Written report demonstrating the applicant's review and selection of tower locations in order of
priority, demonstrating technological reasons for the preferred site selected and written
certification by the applicant's engineer of propagation studies showing the necessity for location
of the tower.
Permit fee schedule:
(a) New wireless communications tower-$5,000.00
(b) New wireless communications antenna/array-$2000,00
(c) Collocation of wireless communication antenna/array on existing tower or building:
$2,000.00
Liability Insurance:
Commercial general liability coverning personal injuries, death and property damage: $1,000,000
per occurrence/$2,000,000 aggregate
Fire Department
• Battalion Chief Palani Kurashige offered comments. Fire departmentwould benefit from
having in code a plan approval requirement for cell towers that included MOA agreements
with all landowners that access road may cross for easy access through locked gates in
emergency situations,video monitoring option at tower in the event of fire or other emergency
situations, and vegetation plan for fire prevention. He approves of fire safety plans already as
part of the current use permit process for cell towers, so adding new provisions wouldn't be
hard to do for the Fire Department.
DPW
• Supervising electrical inspector at DPW offered comments. Bill 194 language goes above and
beyond what is used to currently approve cell towers in Chapter 5,Article 3, Section 5-3-
1(b)(6):Television or radio communication towers, and that"to erect, construct, enlarge,
alter, repair, relocate, convert, or demolish any television or radio communication tower that
is not regulated by the public utilities commission. Our 2020 National Electrical code does
not regulate communication construction in Article 90.20(B) (4): Installation of
communications equipment under the exclusive control of communications utilities located
outdoors or in a building spaces used exclusively for such installations. With that being said,
if a permit is required, then Section 25-2-74 would be appropriate permitting guidelines.
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Planning
• Interacted on several occasions with Planning Director and Deputy Director. Aside from the
concerns of current code being in conflictwith HRS 46-89, Planning did not provide a draft of
their bill. I forwarded my draft bill for review and comment.
• Deputy Director and staff offered comments which I incorporated. Said any public meeting
would be"informational only"given the constraints of HRS46-89. Commented my bill had
looked at more regulations and standards then what Planning had been considering.
• At the last interaction before introduction of Bill 194,they said their bill was not ready.
HUD
• HUD classifies cell towers as a hazard and a nuisance, requiring appraisers to make
adjustments to value due to the effect on market ability
DLNR
• The use of State lands triggers the environmental assessment requirements of Chapter 343,
HRS. Please contact the Office of Environmental Quality Control for their opinion of whether
an environmental assessment is required and the process to be followed.
In closing, Bill 194 includes important application and plan approval requirements, including:
a) fire, structural, electrical safety;
b) setback,separation, and fall zone;
c) affirmations and statements relating to FCC compliance, and RF levels;
d) in compliance with HRS 46-89
Ma halo for your consideration.
After December 2, 1 will be testifying as a resident of Hawai'1 County. My Council term ends Noon,
December 2. My contact information is:
Cindy Evans
59-048 Olomana Rd
Kamuela, HI 96743
C: 808-345-5810
evans.kohala@gmaiLcon
Regards,
Cindy Evans
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