Part 2: 5G Impact Interview with Santa Barbara City Attorneys

On Friday, May 22, I held a Zoom meeting with SB City Attorney Ariel Calonne and Assistant City Attorney John Doimas regarding 5G in our town. The focus of this information is where we are at in the process, what the remainder of the process is going to look like, and a few of the legal highlights like human health.

Our Zoom meeting salient points, transcribed and approved by Attorneys Calonne and Doimas prior to publication:

Background:

In 2014, Calonne identified fairly early the need for an improved wireless ordinance. The wireless technology landscape has changed with the accompanying laws regulating it. In 2016, they took a run at developing an ordinance on regulations dealing with macro or traditional cell tower antennas to the greatest extent as allowed by State and Federal Law. It got as far as the Planning Commission and the process stopped. They had an order from the FCC late 2018 to get in their aesthetic guidelines for wireless by mid-March 2019. A very significant portion of that was completed in time for the deadline to post public right of way aesthetic regulations. It received approval from the SB City Development Dept and that’s where things stand. They realized a need for an ordinance that specifically dealt with small wireless facilities currently used for 4G, and can be adapted to 5G for cell reception and driverless vehicles.

The base case presumption by staff has been that protecting human health to the maximum extent by law is the direction assumed, subject to policy guidance by the City Council. A majority of the City Council has not told the City Attorney’s Office to do this one way or another yet. They are not empowered to speak for the City Council. They are giving them a range of options. The City Attorneys are operating under the assumption that there are massive Federal and State pre-emptions that limit the City’s power to exclude it. The process for excluding even one antenna is rigorous as far as the courts go. The FCC says for city, that in terms of RF emissions, as long as it’s what the FCC limits are, the cities cannot regulate it. As City attorneys they navigate through Federal and State regulations, and identify ways to provide maximum control at the city level. The new draft ordinance allows avenues of appeal, i.e., safety aspect, however appeals have to show that it does not meet the FCC standards.

The City Attorney’s Analytical structure of the options:

1. If the City Council says we want to stop 5G all together, that requires litigation, which the City Attorney will deal with.

2. If the City Council says we recognize we can’t stop 5G, an ordinance to control the placement of wireless facilities on public property, can be written by the City Attorneys.

3. The protection principle is to minimize an unknown harm. To minimize harm, the ordinance can:

      a. Establish preferred locations, e.g., in industrial areas by the highway, versus near a school or hospital.

      b. Limit the number installed: Not more antennas than necessary for adequate service, not numerous locations throughout the city

      c. Establish shared facilities by all the telecom companies.

4. Create an aesthetic standard to meet our community standards.

5. The ordinance will require and define what a completed application is in order not to run afoul from the federal shot clock imposed on local agencies. Depending on the type of facility the federal shot clocks are either 150 days, 90, or 60. It gives the city a legitimate basis for objecting for it via permit process, and not being unduly unfair to the wireless industry.

6. Public notice of installations.

Due Process of Writing the Ordinance:

1. The City Attorneys’ internal draft of this ordinance was completed May 15, and currently is circulating to all city departments for review and comment over the next few weeks, especially Public Works, Public Safety and Information, the Historical Landmarks Commission, Architectural Review Board, Waterfront and Airport.

2. The City Attorneys are conducting our their comment period, first with the City departments. Once they have all the policy points and revisions finalized, it will go out to the public late June for review and comment. There will be a news release with links to where the documents are on the City Attorney’s webpage left sidebar menu.

3. All public comment is best served in writing to the City Attorney’s office, who will take the written comments and respond to them in a report to the city ordinance committee.

4. Minimally three City Government bodies that need to pass the Ordinance after public review are: The Planning Commission, The Ordinance Committee and The City Council.

On the May 7, 2020, Easton, CT Selectmen unanimously approved a Resolution to cease and desist its 5G wireless technology rollout until research and testing show that it is safe for humans and the environment. Calonne and Doimas commented: “The resolution states that Easton calls upon all Telecommunications Companies and Public Utilities operating in Easton to cease and desist in the build-out of SO-enabled small cell antennas until December 31, 2020. Calls upon appears to be carefully drafted to avoid being an actual order that bans 5G. I do not believe this establishes, nor was it intended to establish, a 5G moratorium. The resolution is not binding or legally persuasive, thus, we can point to it to support any local regulation here in Santa Barbara.” [www.eastonct.gov]

In closing, Calonne emphasized that anyone can comment in writing and attend these meetings, “they are open and we want as much public participation as we can get.”

411: www.santabarbaraca.gov/gov/depts/attorney/who_we_are.asp

www.santabarbaraca.gov/gov/default.asp