Guest commentary: 5G ordinances can be amended for additional safety
In 2017, HB 17-1193 was passed in Colorado, mandating cities and counties to give telecom carriers access to public rights-of-way to install their 5G equipment.
In our monthly columns, we have expressed 5G health concerns, the lack of proof by telecoms that 5G is safe, the fact that Telecoms are uninsurable, and we have shared the potential fire risks from cell towers.
The advice cities got was rushed and telecom-friendly. Most cities were told they had to open their doors with no restrictions to avoid being sued by telecoms. So that is how most Colorado local 5G zoning ordinances were written to conform to telecom preemption. The good news is that ordinances can be amended. Some residents are becoming empowered to assist their city councils in relatively painless adjustments to these local zoning ordinances, sometimes seeking the advice of outside counsel to do so.
Ariel Strauss of Greenfire Law in Berkeley, California, has represented residents’ interests in crafting protective language for 5G zoning ordinances and he recently discussed opportunities city leaders have to amend their local zoning ordinances.
“Federal or state preemption has its limits,” explains Strauss. “So, the question for elected officials is whether they want to exercise their local authority to the limit or not. Often, to avoid conflict with telecom companies and make it easier on their staff, cities accept the wireless company’s version of what authority they do have. The attorneys advising the cities think their job is to avoid all legal risk and don’t offer the elected officials a full range of options. It’s hard to know how much fully exercising that limited authority will matter on the ground because there are many unknowns.”
Balancing the residents’ concerns with the desire of local leaders to avoid litigation from telecom, Strauss offers the following: “For those elected officials who care, or care what their constituency cares about, the only way to find out is to impose an ordinance that addresses all aspects of wireless siting.”
Strauss was the attorney hired by residents in Encinitas, California, to advise them and their city council. Instead of holding the doors wide open to telecom, they encouraged the City to pass language to protect the residential areas, schools and day care centers, concurrently protecting property values and city aesthetics. How did they do it when so many cities were told they can’t refuse 5G towers?
Strauss wrote the language that deemed certain areas such as residential, daycare facilities, primary schools, and parks as “Restricted Site Locations.” He then recommended to residents and the City that the community established aesthetic preferences. For example, the least preferred location for 5G was residential areas, and the most preferred was industrial zones. This order of importance is allowable within certain caveats. And finally, Strauss added an “exemption clause” as a sort of waiver telecom can use in lieu of suing the city if some of the restrictions would bump up against state or federal preemptive law.
Strauss’ goal was to help residents who didn’t want anything to do with cell towers in their neighborhoods and at the same time acknowledge the pressure the cities are under to not get sued by telecom.
When a knowledgeable resident or group of residents are willing to take the lead to hire outside counsel, they have been able to enact some protections against 5G encroachment.
For example, the city of Malibu, California, has had two devastating fires in the past 15 years — the Malibu Canyon Fire in 2007 and the Woolsey Fire in 2018 — both of which were started due to faulty electrical or structural engineering involving telecommunications equipment.
Because of this history, residents joined by then-Mayor Mike Pierson wanted protections from more telecom-related fires in their city. The residents hired Texas attorney W. Scott McCollough, a former Assistant Attorney General for the state of Texas and an attorney with a reputation for suing and winning against the FCC. McCollough and his technical experts Susan Foster and Tony P. Simmons, PE introduced a concept that should never have been overlooked in the first place: engineering rigor at the design stage. As a result, the Malibu Planning Commission and City Council unanimously required that all applications contain engineer-sealed documentation of structural and electrical safety and compliance with all relevant safety codes, including a 14-point checklist that will allow independent review and verification.
If Colorado borrows Malibu’s concept of forcing telecom to adhere to long-established principles of sound electrical and structural engineering, this will hopefully cut down on unsafe cell towers which could pose a severe fire risk to cities like Aspen.
Tom Lankering and Kathleen Fors are local health professionals and members of Colorado for Safe Technology and are writing a monthly series on 5G for The Aspen Times. More information can be found at Environmental Health Trust, EHTrust.org; Children’s Health Defense, childrenshealthdefense.org; and Colorado for Safe Technology, CO4safetech.com.