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HomeMy WebLinkAbout2024-12-17 Debra Greene From: Debra Greene To: LPCtestimony Subject: Support Item#2 Date: Tuesday, December 17,2024 3:12:14 AM Attachments: Leeward written testimony 12-16-24.odf Aloha, Attached please find written testimony for Item #2 for the upcoming Leeward Commission meeting. Mahalo. Sincerely, Debra Debra Greene, PhD Founding Director Safe Tech Hawaii PHONE: 808-874-6441 WEBSITE: www.SafeTechHawaii.com Sent from my faster, safer, more secure HARDWIRED computer Aloha Leeward Commissioners, Thank you for your attention to the proposed telecommunications ordinances. 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'm writing in support of County Council Bill 194. We're asking for a favorable recommendation for Bill 194 because it represents an ideal balance between the needs of the community for connectivity, while providing important safeguards for tower and antenna deployments. People want cell phones but they don't want towers or antennas because they're unsightly and they emit wireless radiation. But there is a way to minimize exposure to them without compromising connectivity. That's what Bill 194 does. It accomplishes this by updating the definition of antennas and towers to stay current with these ever-evolving technologies. Hawaii County already has in place a protective Resolution regarding 5G deployments that was adopted four years ago. Bill 194 includes 5G small cell infrastructure, whereas the other bill doesn't. This is a major advantage of Bill 194 as small cells are a novel and untested technology that require regulation for the good of the public. The County Council's ordinance is a follow-up to their already adopted Resolution, and it accomplishes this while bringing County code into compliance with HRS 46-89. Further, it creates Application Requirements and standards including increased setbacks, and an order of priority for siting the wireless facilities. All of this is fully within the purview of Planning and is similar to ordinances already implemented in dozens of local jurisdictions across the country. Hawaii county has even more reason to regulate towers and antennas because of aesthetics. People value the beauty of nature here. They don't want towers and antennas everywhere, and neither do visitors. Another important difference between the two bills is that Bill 194 includes application requirements with provisions involving the Hawaii Fire department, a fire safety plan, and access easement for fire suppression purposes. In light of the increasing fire risks on Hawaii island and the devastating fires on Maui, these provisions provide essential protections. In July 2018, the Hawaii Wireless Fast Track Bill, HB 2651, was signed into law. One of the sponsors was then-legislator Cindy Evans, who wrote and introduced Bill 194 here. HB 2651 codifies Federal law and says that Counties can and should regulate. It lists 15 permitting requirements, and says that County regulation is needed before any of those requirements can be used. That's because Federal law grants local jurisdictions the authority to regulate towers and antennas. In the Telecommunications Act, Congress preserved local governments authority to regulate the placement, construction and modification of wireless facilities subject only to five constraints. In implementing regulations, local jurisdictions: 1) Can't discriminate among providers 2) Can't prohibit personal wireless service 3) Must act upon any application in a reasonable amount of time 4) Can't regulate on the basis of environmental effects of radiation, to the extent that they still have to comply with FCC emission guidelines (which haven't been updated since 1996 when smart phones and WiFi didn't exist!) 5) Must document in writing with substantial evidence any decision to deny an application Bill 194 fully complies with these requirements and any suggestions to the contrary are entirely arbitrary. Sadly, the former Director, Zendo Kern, gave Bill 194 an unfavorable recommendation while advancing his own ordinance, an ordinance that 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. Council members are elected to enact legislation in a democratic process -we elect them and they represent our needs. Cindy Evans who authored Bill 194 consulted with us, and other community groups, over the course of a year to craft her ordinance. Months of research went into it, using ordinances already adopted in other jurisdictions as examples, and contacting officials at the Federal, State and County levels to make sure it met all legal and policy requirements. It was cross-checked, double-checked and re-checked. It's a good, solid piece of legislation that aligns with others across the country. It deserves a favorable recommendation. In contrast, we couldn't help but notice that under the "Pubic Comments" section of the former Director's proposed ordinance, he listed nothing but telecommunications corporations and telecommunications advocacy groups. There was no actual input from the community- only from telecom. Below I address each of the concerns the former Director used to justify his unfavorable recommendation and show how the majority of them 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. Since both Bill 194 and the former Director's proposed ordinance 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 proposed ordinance 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 H RS 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. Five: 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, the former Director's proposed ordinance 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, his ordinance 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, Debra Debra Greene, PhD Founding Director Safe Tech Hawaii 808-874-6441 debra@SafeTechHawaii.com