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Proposed zoning code amendment

The major problem for the City of Elk Grove and all of its residents is that the City Council is not being allowed to do its job as it should. Namely, its job of protecting residents’ health. The Telecommunications Act of 1996 partially prevents the Council from doing its job. That is bad enough and we can’t help it. But unfortunately the City Attorney, Jonathan Hobbs, through his misunderstanding of the TCA and his mistaken advice to the Planning Commission, City Council and staff, is also preventing the Council from doing its job. This has to change between now and August 28, when the City Council will meet to discuss and vote on its new 4G and 5G cell antenna permitting policy.

On July 5, 2019 the staff published the agenda for the July 18, 2019 meeting of the Elk Grove Planning Commission. You can find that agenda here:

The cell antenna issue, 4G and 5G and beyond, was agenda item 5.2, called CINGULAR WIRELESS PCS (AT&T MOBILITY) CODE AMENDMENT (EG-18-006) – ZONING CODE TEXT AMENDMENT AND MASTER LICENSING AGREEMENT

The Planning Commission held a hearing, heard public comments, and had a discussion and vote on these items that night. It was a long meeting, over 3 1/2 hours long. 15 of the 17 people who spoke were against 5G (or cell antennas, broadly speaking) either completely or at least in residential neighborhoods. One of the other 2 was a Verizon representative.

The Commission approved the proposed zoning code amendment and MLA with minimal changes. It was a freezing cold room.

Despite the claims by City Attorney Jonathan Hobbs on the City’s website, in the staff report (pages 3 and 4 under “Analysis”) and verbally to the Planning Commission that ” the City is without regulatory authority in this area as matter of federal law” (referring to environmental and health effects) the proposed zoning code amendment actually reduces or limits the environmental and health effects of radio frequency radiation.   This is because anything the City does to reduce or limit the number of cell antennas in Elk Grove necessarily reduces the environmental and health effects of radio frequency radiation.

It does so in at least 5 ways:

1. The fact that the City requires a permit for the installation and operation of a cell antenna
2. The fact that cell antennas are only allowed on existing poles (Attachment 1 to staff
report, page 17, Resolution);
3. The 500’ minimum distance between cell antennas (23.94.050, A.6.a.);
4. The fact that cell antennas are not allowed immediately adjacent to the front yard of a
residential dwelling (23.94.050, A.6.b.); and
5. The discretionary authority of the Zoning Administrator to grant or deny a permit
application in a residential zone. (probably Table 23-27.1, page 23 of staff report, Exhibit
B, Proposed Amendment to Title 23, page 3)

Here is the City’s web page on 5G, which says:
“Some City residents have expressed health concerns about wireless technology. However, the City is preempted by federal law from regulating in this area. Changes to those regulations must occur at the federal level.”

Those who pay close attention (which the City Attorney should do) will notice that the Telecommunications Act of 1996 does not include the phrase “this area” or “in this area”. That is a fabrication. It serves to broaden the federal preemption of City regulatory authority. But the City Attorney does not have the power to rewrite a federal law and to preempt City action. Only Congress has the power to do that. Despite 23 years since the law was passed Congress has chosen not to amend the Act in the way that the City Attorney wants to.

All five of the limits on the number of cell antennas shown above are going to be great for Elk Grove residents. The best one is probably the 4th one, which says in context:

6. In a residential zoning district, the following development standards shall apply, unless the
applicant can demonstrate with substantial evidence satisfactory to the approving authority that such siting limitation will materially inhibit personal wireless service as to a particular small cell wireless communication facility.
a. No small cell wireless communication facility shall be placed within five-hundred (500’
0”) feet of another small cell wireless carrier.
b. No small cell wireless communication facility shall be located immediately adjacent to
a front yard of any residential dwelling.

6.a. is a typo and is probably meant to say, “a. No small cell wireless communication facility shall be placed within five-hundred (500’ 0”) feet of another small cell wireless communication facility.”

The Council should keep all of the above restrictions and limitations on the number of cell antennas in the City. It should also add more, to further reduce or limit the environmental and health effects. For example it should at least:

#1 Allow cell antennas to be located in commercial and industrial zones only.

#2 Require a minimum distance of at least 1,500′ between any two cell antennas.

#3 Limit the operation of a cell antenna to no more than 150 microwatts per square meter at the closest points where people are likely to be.
(Enforced by sensors with automatic shut off. Charge fines for exceeding this power density limit.)

#4 Require applicants to demonstrate that a given proposed cell antenna will:
Close a significant gap in coverage
Do so using the least intrusive means
(MetroPCS, Inc. v. City & County of San Francisco (9th Cir. 2005) 400 F.3d 715.)

#5 Require applicants to pay the City to hire a legitimate expert to review applications, proposals, etc. and advise the City on technological and policy options.

#6 Require warning signs at eye level on every pole that has a cell antenna.
(Saying the cell antenna on this pole produces electromagnetic radiation (EMR), and that the California Department of Public Health has issued recommendations for reducing one’s exposure to EMR.)

If any of this bothers you please attend the City Council meeting on August 28, 2019 at 6:00 p.m. at 8400 Laguna Palms Way and speak to the Council for 3 minutes during public comments. Or email the Council ASAP with your ideas. Contact information is on the “What You Can Do” page.

Together we are stronger. Together we can bring sense and reason to the City’s new cell antenna policy and protect our health.

MG, August 8, 2019