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HomeMy WebLinkAbout2024-09-18 Elizabeth Songvilay AT & T TestimonyFrom: SONGVILAY CLEMENTS, ELIZABETH To: LPCtestimonv Subject: 9/19 Leeward Planning Commission - AT&T written testimony Date: Wednesday, September 18, 2024 9:42:24 AM Attachments: Sept 19 Leeward Planning Commission ATT written testimonv.odf Aloha, Please see attached for AT&T's written testimony for agenda item #4 on tomorrow's Leeward Planning Commission agenda. Apologies for submitting late. Mahalo, Elizabeth Elizabeth Songvilay Director, External Affairs— Hawaii, Alaska AT&T External & Legislative Affairs m 808.376.9032 1 elizabeth.son ilay(a)att.com Check out our latest upates in Hawaii and Alaska! AT&T September 18, 2024 Leeward Planning Commission County of Hawaii 101 Pauahi Street, Suite 3 Hilo, Hawaii 96720 Re: Agenda Item 4 (PL-PDI-2024-000008) September 19, 2024, Planning Commission Meeting Aloha Chair DeFranco and Leeward Planning Commissioners: AT&T appreciates the opportunity to submit written testimony on the Planning Director's proposed ordinance to amend Chapter 25, Article 2, Article 5, and Article 7 of the Hawaii County Code 1983 (2016 Edition, as amended) relating to telecommunication antennas and towers. Comments on Proposed Code Changes AT&T appreciates efforts by the Department of Planning to update the Hawaii County Code. However, as indicated in our letters and comments included in the Department's report and Windward Planning Commission testimony, AT&T is concerned that some of the proposed changes will hamper our ability to effectively provide quality and reliable wireless services to our Hawaii Island customers. As mentioned in our previous testimony, the effect of the proposed changes appears contrary to the County's latest proposed 2045 General Plan. The proposed General Plan highlights the importance of access to broadband and telecommunications services and deployment of related infrastructure.' However, the changes proposed here create unnecessary barriers to the deployment of wireless infrastructure, thereby inhibiting the provision of communication services on the island. This testimony follows up more specifically on several legal concerns with the proposed code, in further support of comments submitted on behalf of Verizon Wireless and Crown Castle (Exhibits 7 and 9 to the July 23rd Planning Director's Report). ' See "County of Hawaii General Plan 2045: Planning for a Sustainable Future, Final Recommended Draft, July 2024," hops://www.planning.hawaiicounty.gov/home/showpublisheddocument/308136/638597487229830000. 2 Please see my prior comments regarding policy concerns with the proposal. Exhibits 8 and 10 to the July 23rd Planning Director's Report, PL-PDI-2024-000008, Background and Recommendation, July 23, 2024. © 2024 AT&T Intellectual Property. All rights reserved. AT&T and the Globe logo are registered trademarks of AT&T Intellectual Property. Legal Concerns with Proposed Draft Code The proposed 1200-foot setback is contrary to federal law. The Department proposes a setback for all towers of "at least 1,200 feet from nearby residences and schools not on the subject property." Proposed Subsection 25-4-12(d)(2). Under federal law, a local jurisdiction is preempted from considering the environmental effects of radio frequency ("RF") emissions (including health effects) in regulating the placement of proposed wireless facilities.3 This means a local jurisdiction cannot regulate, deny, or condition a wireless facility based on concerns about RF emissions.4 An example directly relevant here, is a case in New Jersey where a 1000-foot tower setback condition was determined invalid and stricken.s In response to the local jurisdiction's argument that the setback was for aesthetic purposes, the court noted that such a setback "is of little if any significance regarding aesthetics."6 The Department's stated rationale for this proposal is a "broader trend of using substantial setbacks to manage safety risks, visual impacts, and community concerns with placement of telecommunication towers near residences and schools."7 AT&T disagrees that there is a "broader trend" of using setbacks greater than a tower -height setback from a shared property line; to the contrary, the jurisdictions cited by the Department are outliers. One of the examples listed by the Department is Copake, New York, which is a town of 3,400 people and 14 square miles in size. Based on the town's size and population, Copake does not require many wireless facilities. Lane County is the only jurisdiction that AT&T's team is aware of in the Pacific Northwest (Oregon and Washington) that has such a large setback from residences and schools. Although the 1,200-foot setback remains in Lane County's zoning code, AT&T is aware of at least one instance where a local decision -maker found application of this setback to be in violation of federal law, resulting in Lane County approving the facility with a lesser setback. Specific "safety risks" are not identified in the Department's rationale. In AT&T's view and in typical wireless codes, issues related to a "fall zone" are adequately addressed by the proposed 120 percent setback from property lines, provided however, that an exception to the setback be granted for towers constructing using breakpoint technology.$ In addition, the current building code, including structural code requirements, significantly reduces the likelihood of falling towers. 147 U.S.C. § 332(c)(7)(B)(iv). 4 AT&T Wireless Services v. City of Carlsbad, 308 F.Supp.2d 1148 (S.D.Cal. 2003)(a denial may not be indirectly based upon concern over the environmental effects of RF emissions and how such concern may impact property values); Sprint Spectrum L.P. vs. Ringwood Zoning Board, 898 A.2d 1054 (2005)(a 1000-foot setback is preempted). 5 Sprint Spectrum L.P., at 1059. 6 Id. at 1059. Planning Director's Report, PL-PDI-2024-000008, Background and Recommendation, July 23, 2024, p. 13. 8 With breakpoint technology, towers are engineered to collapse on themselves, significantly reducing a fall zone to less than tower height. Fear of alleged health effects of RF emissions is a typical "safety risk" raised during the review of a proposed wireless facility. However, such concerns are not a permissible basis on which to regulate a wireless facility, as explained above. Moreover, "community concerns with placement oftelecommunication towers near residences and schools," also listed in the Department's rationale, seem to be tied to the community's expressed concerns with alleged health effects. AT&T believes that potential visual impacts are adequately addressed by other proposed provisions of the code, such as stealthing and concealment requirements, as well as the 120 percent setback from shared property lines. These provisions are the typical visual mitigation in a zoning code. AT&T joins Crown Castle9 in suggesting that the 1,200-foot setback be deleted from the proposed code. Requiring a tower owner to _ give space on a tower to a public body is an unconstitutional taking. The Department proposes a new subsection requiring a tower "to provide space for a surveillance camera system designed to monitor and detect wildfire activity as a condition of Final Plan Approval." Proposed Subsection 25-4-12(h). This provision is an uncompensated taking of private property for public use.10 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.11 AT&T suggests that this subsection be deleted from the proposed code. We want to note, however, that even if this subsection is deleted, its absence does not mean AT&T will not consider a request from another entity to collocate equipment to a structure we own. It is possible that allowing collocation simply is not possible for a number of reasons, including available space and structural integrity. Minimum lot sizes — Zoning regulations may not have the effect of prohibiting wireless Servire, 12 AT&T is concerned that the proposed minimum lot sizes for a tower installation may have the effect of prohibiting wireless service, which would make this requirement contrary to federal law. For context, a minimum lot size such as is proposed is highly unusual; jurisdictions typically rely on setbacks to property lines to regulate placement of towers within a site. While the Department's recent amendments to the proposed code change limit the applicability of the five -acre minimum to agricultural and open space zones (see Proposed Subsection 25-4- 9 Planning Director's Report, PL-PDI-2024-000008, Background and Recommendation, July 23, 2024, Exhibit 9. 10 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." Id. at 1270, 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 CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982). 11 Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). 12 47 U.S.C. § 332(c)(7)(B)(i)(11). 12(c)(1)), these amendments do not directly address AT&T's concerns because many of its towers in the County are sited on parcels zoned agricultural or open space. The Department's stated rationale for the five -acre minimum lot size is that it "aims to ensure enough land area to site new telecommunication facilities a safe distance from any surrounding structures and to comply with newly proposed setback requirements."13 The proposed 120 percent setback from property lines independently achieves this purpose. Five -acre parcels are often 330 feet wide by 660 feet long, well over the dimensions needed to allow for a tower- height-plus-20 percent setback for a typical tower. This proposed subsection would eliminate numerous parcels that could meet the required setback to property lines and unnecessarily limit potential sites for new towers. AT&T suggests that the minimum lot size in agricultural and open space zones be no more than one acre, or as suggested by Verizon Wireless,14 that the minimum lot sizes be eliminated from the proposed new code since the 120 proposed setback independently achieves the County's stated purpose. Other significant concerns The Department proposes that the director be able to "require any conditions or changes in the location and design of telecommunication antennas and towers... the director may require an on - site or off -site relocation of the telecommunication tower in an effort to mitigate visual impacts." Proposed Subsection 25-4-12(k). AT&T suggests more precise direction for aesthetic mitigation in the proposed code, to provide more predictability for both applicants and the community. For example, many jurisdictions require stealth design specifically when a proposed tower would be located in certain areas, such as in designated scenic corridors or dense residential zones. Such a requirement provides for a consistent application of the code, with the reasonable expectations of both the applicant and the community more likely to be met. As written, with wide open discretion for the director,15 the code's application is likely to result in inconsistent permit decisions. Moreover, this broad discretion in the director's review is contrary to the 60-day review timeline for tower permit approval; typically, shorter administrative reviews require more objective standards to maintain the required timelines. AT&T suggests deleting or amending this provision. To be clear, AT&T does not oppose new requirements or design standards to mitigate visual impacts. We echo Verizon Wireless' suggestion for the Department to propose specific standards. 16 Such standards can be appropriately tailored to address specific areas or situations. This approach will establish objective and clear standards, which will be helpful for the Department staff, applicants, and the public as future use permits are considered. 13 Planning Director's Report, PL-PDI-2024-000008, Background and Recommendation, July 23, 2024, p. 12. 14 Id., Exhibit 7. 15 Please note also that the Director does not have authority to require an off -site relocation. 16 Planning Director's Report, PL-PDI-2024-000008, Background and Recommendation, July 16, 2024, Exhibit 7. 4 Conclusion As previously mentioned, AT&T's work is largely driven by the growing demand we see on our network as well as our role in building FirstNet, the nationwide public safety network, as part of a public -private partnership with the federal government.17 Our customers depend on us to deliver service they utilize daily in every aspect of their lives. The service we provide is especially critical during times of emergencies in support public safety as they utilize technology to carry out their missions and to provide 9-1-1 access. AT&T understands the County's desire to incorporate certain requirements as part of the use permit application process for new wireless facilities. We look forward and appreciate the opportunity to continue working with the Department of Planning and all stakeholders to help achieve the goals of the proposed code changes without compromising the quality and availability of wireless service that Hawaii Island residents and visitors so critically depend on. Mahalo for your consideration and the opportunity to submit written testimony. Sincerely, Elizabeth Songvilay Director, External & Legislative Affairs — Hawai`i cc: Suzanna Tiapula, Deputy Corporation Counsel Zendo Kern, Planning Director 17 For more information on the history on the First Responder Network or FirstNet, you may visit: hLtps://firstnet.gov/about/histoly.