Commissioners send pro-industry 5G code for public comment without addressing citizen stakeholder claims
When Thurston County’s Board of County Commissioners created a stakeholder committee to provide additional input on zoning changes to rural wireless facilities, hopes were high among the private citizens in the group that the safest and most conservative decisions would be made to protect public health and property values.
After their recommendations were either ignored or otherwise overruled at the BoCC meeting on the topic in October, citizen participants now wonder why measures they advocated were not addressed. Were they too inconvenient, too costly, or too likely to result in litigation?
In addition to citizen members, the committee is composed of two planning commissioners, an attorney for Verizon Wireless, a lobbyist for AT&T, and two wireless consultants, both attorneys from the same firm retained by the county.
The citizen stakeholders made over 40 recommendations, including specific suggestions for height restrictions on 5G towers, buffer zones around residential properties, noise limits and limits to groupings of towers that increase signal strength. Of these, 22 were presented to the planning board as high-priority items. Three recommendations were made by industry representatives on the committee. All the recommendations, stakeholders say, fall within federal law and FCC guidelines, which are open to interpretation by regional governing bodies.
Planning board members, who had been tasked with studying the proposed zoning changes and making recommendations to the County Commissioners (BoCC), requested additional information from staff on the 22 items. They were told by staff that the bulk of the recommendations would require consideration by the BoCC, not the planning board.
The Planning Commission could include an advisory in their recommendations to the BoCC, but were told they would not be able to discuss proposals to the draft wireless code related to the bulk of citizen recommendations. Specifically, anything that resulted in increased staff time, use of the right-of-way for wireless facilities—or anything requiring legal consideration—would not be up for discussion by the Planning Commission. Suggestions by several Thurston County Planning Commissioners were also ignored, prompting them to submit a Minority Report outlining their disagreements with the majority response.
Concerns of the citizen stakeholder members and several planning commissioners include:
• Lack of setbacks from a home (wireless facilities can be as close as 10’ to residential dwellings)
• Lack of notice (homeowners usually receive no notice except for a sign at the site three days before installation, even if it’s in the front yard of their dwelling)
• No required safety testing for compliance with FCC radiation limits
• No ability to comment on the majority of facility installations
The wireless facilities guidelines the staff and hired consultants prefer to follow, the majority of which the planning commissioners ultimately supported, are based on a largely pro-industry interpretation of FCC rules which are themselves interpretations of federal law. There is wide disagreement among legal professionals on both the interpretation of FCC rules and which of those rules actually comply with federal law. Stakeholders say the county staff’s unwillingness to adequately consider or convey their proposals is due to its reliance on advice from the group’s wireless industry representatives.
As one citizen stakeholder commented, “Many of the things the staff doesn’t want to include have no conflict whatsoever with FCC rules or federal law, they just mean a bit more work or process change for staff, like allowing public comment on all facility installations, requiring applicants to give notice to nearby residents, or doing radiation testing.”
At the October meeting, Tye Menser, vice chair of the BoCC, referenced recent code changes implemented in Langley, Washington, as proof that more equitable approaches to balancing public and private agendas are possible. That code was written by one of the country’s top wireless attorneys, Andrew Campanelli, who the citizens on the stakeholder group also consulted in drafting their recommendations.
Privately, citizen stakeholders are wondering whether the staff’s actions have more to do with avoiding a lawsuit by powerful wireless companies who might challenge their decisions and result in costly legal fees, than doing what is right for the community or technically required.
“Lawsuits from the industry can only result in an order of compliance, no fines or other penalties are allowed. However, lawsuits from community members could result in significant fines. The county’s primary responsibility is the protection of its citizens, not the avoidance of nuisance lawsuits from industry,” a member told WIP. After the October wireless work session, citizen stakeholder members met with Menser to elaborate on their concerns.
At a subsequent BOCC work session on November 9, the staff presented additional information regarding the wireless code and claimed the Langley code was largely inconsistent with federal law. Menser asked several questions about the board’s latitude within federal law, which the staff was largely unable to answer. Ultimately, two of the three Commissioners voted to move ahead with a public hearing, with Commissioner Menser abstaining. A public hearing date will be set at a later meeting.
View the recommendation from the citizens on the wireless stakeholder committee as well as the draft code, at Thurston Sensible Wireless.