Marin lays rules for small cell networks

07/18/2019

An urgency ordinance passed last Tuesday by the Marin County Board of Supervisors implemented several rules for the deployment of small-cell infrastructure on public roads, including procedural and aesthetic guidelines. The rush came in advance of applications expected within the month by telecom companies looking to build out 4G networks, and in anticipation of the future upgrade of 5G in Marin. 

Dozens of residents were in favor of regulating the deployment of small-cell networks but called for bolder action, citing peer-reviewed literature that shows the health hazards of increased electromagnetic radiation.

“We’ve been walking a legal tightrope here to make the ordinance as strong as possible yet keep the county out of long litigation, and that’s important to all of our citizens, I think,” said Supervisor Dennis Rodoni, referring to Federal Communications Commission restrictions that block local jurisdictions from restricting deployment in myriad ways. “We are not ignoring the health concerns, but we can’t regulate it. The federal government does that.”

Marin’s new ordinance amends the county’s telecommunications facilities policy plan. That plan, adopted in 1990 and updated in 1998, did not address small-cell wireless facilities, which support the newest cellular technology that’s rolling out worldwide. 

Representatives from Verizon and AT&T, who confirmed at last week’s hearing that the companies plan to submit applications for small-cell wireless facilities in Marin within the month, argued the new regulations in Marin were too restrictive. County counsel insisted that their complaints lacked legal merit. 

Their and all future applications will be subject to design requirements, location standards and public noticing. Applicants must submit a project narrative, construction drawings, a radio frequency report certifying compliance with federal standards, photo simulations and permitting fees.

The new ordinance includes various design and installation standards, including limiting antennas to one per pole and to a distance of at least 1,000 feet apart. Aesthetic requirements aim to blend equipment with surrounding infrastructure and prohibit equipment on historic buildings.

The ordinance also lists some preferences. Placing antennas on existing street poles or traffic lights is preferred over the construction of new poles or small-cell facilities; applicants seeking new construction will have to demonstrate “why no more preferred location within a reasonable distance from the site is technically feasible.” 

Industrial, commercial and agricultural sites and areas near public facilities are preferred locations for antennas; residential and mixed-use sites and areas within 1,500 feet of schools and daycare centers are the least-preferred locations.

Brian Crawford, the director of the Community Development Agency, will be tasked with reviewing applications, though appeals will go directly to the Board of Supervisors to expedite the process. In his department’s report for supervisors, Mr. Crawford explained the reasoning for listing preferences rather than prohibitions. 

Some cities have adopted regulations that prohibit the installation of small-cell wireless facilities in residential zones, avoiding any violations of the F.C.C.’s mandates by allowing applicants to file for exemptions. 

But, Mr. Crawford wrote, “In that regard, these ordinances do not establish an absolute prohibition, but rather a process by which case by case exceptions may be considered. Staff believes a similar approach in the county could result in a large number of exception requests and may ultimately reduce the county’s ability to exercise local control.”

The county will have 60 days to review small-cell attachments to existing structures and 90 days for attachments to new structures, according to F.C.C. rules. Public noticing of applications will consist of notices placed on the site of the installation, a mailed postcard to property owners within 300 to 600 feet of the installation, depending on the zoning, and a notice on the county’s website.

County staff noted that the public feedback they received while drafting the ordinance was “voluminous,” and residents last Tuesday expressed a range of concerns. Some underscored the health effects of radiofrequency and electromagnetic field exposure, exacerbated by the limited-coverage antennas that must be established close to users in dense networks.

Other speakers asked the supervisors to prohibit the installation of 5G in residential and mixed-use areas, or to place a moratorium on deployment. Some asked to make the technology as visible as possible, as opposed to blending it, so they could know where it was. 

Other speakers expressed concern about fire danger, the effects on wildlife and corrupt scientific evidence backed by the industry.

Connie Barker, president of the Environmental Health Network, urged caution. “I just want to say this,” she said. “If you look at the history of environmental problems in this county, going clear back to fallout from nuclear tests to the emissions from cars to Love Canal, you name it, one of the through lines that you can see through all of that is the expert there in the white coat at the beginning saying, ‘Well, we have no evidence that this is a problem.’ That goes on until they finally start to look at the evidence that individuals and communities have accumulated.”

She concluded, “I urge you as members of this board and I urge you as citizens to seriously look at this train and ask whether it’s one you want to get on or if it is one you ought to be lying down in front of.”

Several speakers looked to determinations by the California Department of Public Health, which has an informational page listing several ways citizens can protect themselves from EMFs. “Although the science is still evolving, some laboratory experiments and human health studies have suggested the possibility that long-term, high use of cell phones may be linked to certain types of cancer and other health effects,” the site states. Those health effects, according to the department, include brain cancer and tumors in the salivary glands and acoustic nerve, which is needed for hearing and maintaining balance; lower sperm counts; headaches; and impairments to memory, sleep and even behavior. 

But last September, the F.C.C. handed down rules that prohibit local governments from denying proposed telecommunications facilities or requiring modifications based solely on potential adverse health effects from exposure to electromagnetic field emissions beyond federal standards. Marin is one of several municipalities involved in a lawsuit filed in the Ninth Circuit Court of Appeals challenging the order.

The supervisors discussed the possibility of deferring adoption of an ordinance in order to develop it further, but they ultimately agreed that it was better to have something than nothing at all.

A June report from the Marin County Civil Grand Jury recommended that supervisors appoint a citizens' advisory committee to advise on telecommunications services and policy. The report, which the county must address by September, recommended dissolving Marin’s Telecommunications Agency, which since 2006 has primarily collected fees from cable service companies for public right-of-way use. 

Though the jury’s report did not address 5G, it mentioned it as part of the county’s failure to keep up with changing technology and provide the best services for residents.

And, it states, “The opportunity to negotiate favorable terms for countywide 5G installations was ineffectively addressed.”