Over the contrary sentiment of a majority of the city’s residents present at its July 16 meeting, the Redlands City Council gave tentative passage, on a 3-to-1 vote, of an ordinance that will accommodate the cellular communication industry in its intention to erect what are projected to be ubiquitous mini-cellular towers on public rights-of-way throughout the city.
According to Gail Karish, an attorney with the law firm of Best Best & Krieger who specializes in aspects of the law relating to communications technology who was retained by the city, federal law adopted in 1996 preempts local jurisdictions from imposing their own standards with regard to the safety provisions relating to communication devices relying upon radio frequency or electronic emissions. Standards relating to what constitutes a safe level of exposure specific to each frequency have been set by and are controlled by the Federal Communications Commission. Efforts by municipalities to deviate from those standards or impose more exacting safety or distance standards have generally failed, she said, as federal law prohibits local governmental authority from having say over “any effects of radio frequency emissions if the applicant can demonstrate that they meet the FCC standards,” Karish said. “You can’t create rules or make decisions that would effectively prohibit the provision of personal wireless services,” she told the city council.
In general, municipalities’ reach in regulating cellular communications facilities is limited to the aesthetics and appearance, Karish said. “Local authority has been chipped away by state and federal laws,” she said. In the main, Karish said, “What can be done at the local level is require that they [cellular service companies] demonstrate they meet the FCC [Federal Communications Commission] standards.”
In general, cities’ authority does not extend to controlling where the cell towers are to be located, with line-of-sight requirements to allow for the communications systems to function efficiently taking precedence. Because local jurisdictions are required to make public space available as hosting sites for cell towers, and because of the proximity of that public space to residential areas, it is not uncommon for antennas to be placed near residences. The city is powerless to prevent that, according to city staff and Karish.
Karish said the FCC has different standards for different frequencies as to what a safe exposure is. She said local jurisdictions do not have the power to regulate a cell service provider’s choice of the level of technology to be employed in its operations.
The city’s consideration of the new ordinance was prompted by the advance of technology, in this case so called “5G” cellular systems, that is fifth generation cellular devices, ones that handle larger amounts of data and process it much more quickly. Crown Castle, which installs the facilities, has made application for permits to erect the facilities in Redlands. An example given of the 5G capability is that the entirety of a two hour movie could be downloaded onto a device in less than two seconds.
The demands of the 5G system are such that rather than relying on one large, indeed massive, distant tower, the communications are to be effectuated through a series of smaller but much more widely distributed and therefore closer antennas, referred to as small cell wireless facilities.
Redlands Development Services Director Brian Desatnik said the higher frequencies of the 5G system emanate effectively to a shorter range, and therefore must be placed “closer together to create this type of a mesh network between themselves.”
He said the federal government requires local jurisdictions streamline the approval process for erecting cellular antennas and remove barriers to their placement. He said the small cellular towers will normally stand no higher than 30 to 40 feet in height. The ordinance under consideration, he said, would add Chapter 12.60 to the city code, making the the facilities and community services department the lead agency in considering and approving the cellular facility applications. He said that since the ordinance was drafted, it had been changed to make the appellate body hearing resident objections to the granting of permits the city manager rather than the city council. Permits would be granted for a 10-year period and would remain in effect a decade, after which the permits would need to be renewed. The radio frequencies emanating from the towers, and their power, he said would be modulated in compliance with FCC guidelines.
The antennas will be attached to existing power poles and other already existing public infrastructure, such as streetlights and sign poles, with the antennas masked or shrouded in compliance with aesthetic standards dictated by the city. In places where no existing poles exist, ones mimicking streetlights or perhaps doubling as actual street lights will be erected.
While staff’s pitch and that of Karish was that the city council should essentially go along with the ordinance as drafted and resign the city to accommodating the various communications companies in their efforts to establish their facilities pretty much anywhere they choose, a significant number of vocal residents said the city council should not allow itself to be dictated to by commercial interests who might be profiting by subjecting city residents to the danger and harm of electromagnetic radiation.
Desatnik indicated he anticipated applications for hundreds of the facilities in the near future, saying staff may need to be augmented by an outside consulting firm to process those applications.
Dr. Nancy Baker said the threat represented by bombarding city residents with radio frequencies at close quarters was real, including potentially elevating cancer levels or other untoward conditions. She urged the council to consider proposals made by residents relating to the city expanding its options on where the cell facilities are to be located.
“Put them in safe places,” said Baker. “Don’t put them in front of our children. The City of San Ramon was able to adopt an ordinance that gave specific preferred locations that placed these in commercial and industrial areas along arterial, collector or local streets as a most preferred location. Less preferable locations [specified in the San Ramon ordinance] include mixed use districts along arterial and collector streets with placement along the median islands if possible. Prohibited locations in San Ramon included not placing small cells in public right of way within residential districts or within 300 feet of any structure approved for residential use. Other cities in California are able to do this. Why are you not able to do this? Put them in industrial areas. Put them in commercial areas. Don’t put them in front of our homes and schools. Don’t sell our children for money.”
Steve Rogers said the ordinance was “flawed and it is therefore premature to consider it.” He said the terms in the ordinance were “misdirected and misapplied.” He said the consideration of how to deal with the small cell towers was “more properly handled by the municipal utilities and engineering department. The municipal utilities and engineering department has been purposefully left out of the development and staff recommendation process for approval by the Redlands City Council, which shows a continuing pattern of willful neglect concerning the appropriate practice of civil engineering by staff, which is being condoned as is by assigning an unregistered individual, Chris Boatman, to be the interim utilities and engineering department director, which is also the de facto city engineer position per the department director’s memorandum of understanding with the City of Redlands. The Redlands City Council will be aiding and abetting the unlicensed practice of civil engineering, which is a violation of state and federal law.”
An individual who was identified by Mayor Foster only as Dr. Sharf, with no reference to his first name, identified agricultural areas along with industrial areas as the optimum locations for the cell facilities. He said the city by not taking a stand and contesting a 23-year-old federal law, when cellular communication technology was dawdling in its first generation, was taking “the easy way out” by electing “to do nothing.” He said the cities of San Anselmo, Ross, Novo, Calabasas, San Mateo, Fairfax, Palos Verdes, Sonoma and Monte Vista have passed ordinances which placed health concerns into their proper perspective. “You can do the same,” he said. “Petaluma voted to protect its residents for 4G and 5G sensification, putting the towers 500 feet from homes. Napa, Danville, San Rafael and many other cities are doing the same fight. We implore you to act. If you tell us it can’t be done, then you’ll have to explain to us why so many other cities have been able to do so. Please remind us of why we elected you our city officials, and listen to the citizens.”
Howard Fecund said the city’s accommodation of the cellphone industry was prioritizing speed over safety. “The two hour download of a movie in one second is not that important,” he said. He said that committing the city to the latest technology that might soon become obsolete was not a well considered policy. He said that the chairman of Verizon had indicated the company was backing away from utilizing small cell capability already. He said that the placement of the radio frequency emitting devices proximate to homes was unconscionable. “That lamppost is 57 feet from where I sit, sleep and eat. It is not fair for me to have to endure that,” he said.
Ann Benton said that examining and regulating the applications to erect small cell towers based only upon their visual and aesthetic impacts was inadequate given the cell towers’ potential impacts on electromagnetically sensitive residents.
Melissa Castro told the council that the current cellular systems in use are adequate.
Castro said, “A microwave oven does use about 2.45 gigahertz frequencies to cook food. Currently 1, 2, 3 and 4G towers use between one to 6 gigahertz frequency. According to the California Brain Tumors Association, 5G technology will use up to 90 gigahertz frequency. That’s a huge difference. The higher the frequency, the more dangerous it is to living organisms. Radiation directly affects our cellular membranes, which hold our cells together, causing tumors.”
Castro said, “There have been hundreds of peer-reviewed scientific studies done on radiation, linking it to severe health problems such as cancer, reproductive system and DNA damage, especially in fetuses in the first 100 days after conception. The World Health Organization has also classified radiation as carcinogenic.”
Andrea Viggers said that homeowners selling their property would be legally required to report the proximity of a cell tower to the home being sold as an environmental hazard, an indication that the facilities would have a negative impact on property values of the residences near which they are located.
Ernest Ah told the city council it should consider having Redlands band together with other cities to sue the FCC over the imposition of its regulations without the city being able to fine tune them as is appropriate.
Eugene Van Dyke said there had been a lack of notification about the erection of the towers. In his case, he said, there was a cell facility 42 feet from his house. He said there was incomplete information in the planning documents relating to the permits for the towers. He said the cellular facilities represented a hazard in that they could potentially interfere with pacemakers and defibrillators
Herman Fograbe pointed out that industrial safety standards required that shielding be provided to workers in an area where a six megahertz emission is made. He said the emissions from the small cell towers exceeded nine megahertz.
Mayor Paul Foster, both before the public input and after it expressed his certainty that any city efforts to augment FCC regulations with the superimposition of municipal regulations would not survive a legal test. He pointedly refused to identify Dr. Sharf by his first name when calling Sharf to the public speaker’s podium, making it difficult for those who wanted to contact Sharf thereafter to do so.
With reference to the multiple calls for intensifying the city’s regulations beyond that provided for in federal law, Foster vectored Karish back into the discussion after the public input session was concluded. Karish, sensing the direction Foster was intent on taking, said, “Not every ordinance has been looked at closely by the industry and so I always in giving advice on what your parameters are say that in talking about it in terms of litigation risk, there may be ordinances out there that adopted some provisions that are more aggressive than what staff has proposed, but that doesn’t mean they would withstand scrutiny if they were challenged in a court.”
Foster did not explore with Karish whether she and her firm are representing any municipalities that are seeking to expand municipal reach in layering onto their cellphone facility application processes further restrictions beyond what is contained in the FCC regulations.
With respect to the questions about what the city might do to protect its residents outfitted with pacemakers or in-body defibrillators, Karish said that federal law does take into consideration the “cumulative impact of other antennas nearby,” but she said that federal law features “no standards on prohibitions to protect pacemaker owners.”
Karish indicated efforts in the legal realm to hold cellular service providers responsible for the deterioration of property values in the areas where cell towers are erected have proven fruitless.
On dual motions by Foster, the council approved Ordinance No. 2894, adding Chapter 12.60 to the Redlands Municipal Code, establishing a process for managing, and uniform standards for acting upon, requests for the placement of small cell wireless facilities within the public rights-of-way of the city, along with Resolution No. 8002, adopting design guidelines for small cell wireless facilities within the public by a vote of 3-to-1, with Councilman Eddie Tejeda dissenting and Councilman Paul Barich abstaining.
-Mark Gutglueck