County Continues to Ban Public From Cell Tower Approval Process: "members of the public – even affected property owners/residents – are barred from speaking at Tower Committee meetings."

Montgomery County advocate Sue Present responds to Montgomery County's continued refusal to allow members of the public to participate in the process that reviews where cell towers (large and small) are to be built in the county.  There is no public comment allowed at Montgomery County Tower Committee meetings and the public is not even allowed to submit comments or documentation as part of the cell tower review process.

Below is Sue Presents' letter to County officials that continue to block public participation in the cell tower approval process.


From: suepresent
Date: Mon, Apr 17, 2017 at 1:13 PM
Subject: RE: Telecommunications Facilities Coordinating Group Open Meetings
To: "Segal, Sonny"
Cc: county.council@mccouncilmd.lmhostediq.com, County.Council@montgomerycountymd.gov, ike.leggett@montgomerycountymd.gov, Edward.Lattner@montgomerycountymd.gov, "Williams, Marjorie" , "Zyontz, Jeffrey" , "Royalty, Clifford"

Dear Director Segal,

I received your response on behalf of Ms. Williams and Mr. Royalty to my inquiries about the Tower Committee’s practices that prohibit members of the public from speaking at Tower Committee meetings, but which permit industry representatives to freely speak at these meetings. Your response mischaracterizes and distorts the facts.

COMAR 2.58E.01.05 requires the Tower Coordinator to develop a siting recommendation for each TFCG application that must be, in part, “based on: (a) zoning standards for siting a telecommunications transmission facility.” And yes, as you indicate in your response to me, “TFCG members decide whether to recommend or not recommend an application (MCC 2-58E.d) for processing further.” What your response ignores, however, is that whether the application for a proposed facility is recommended to the TFCG as a conditional zoning use, a limited zoning use, or a permitted zoning use can be at the Tower Coordinator’s discretion. Discretion then falls to the Tower Committee to recognize zoning status when the Committee votes on the disposition of the TFCG application.  Per MCC 2-58E.d, the Tower Committee is composed of members that represent government agencies, including those involved in the further processing of these facility requests. Tower Committee members who may comment on and/or vote on a TFCG application and its zoning status include representatives from the Planning Board and the Department of Permitting Services (DPS). During further processing of a proposed facility, Planning Board staff will engage in a land use review and provide advice and other quasi-judicial staff support to the Office of Zoning and Administrative Hearings (OZAH), the Board of Appeals, and/or DPS, as needed; DPS will make administrative zoning determinations concerning the proposed facility. You therefore significantly downplay the Tower Committee’s sphere of influence.

Consider the example of TFCG application 201704-13, which was reviewed by the Tower Committee at its April 2017 meeting. That application was “conditionally recommended” by the Coordinator because the application was found to not satisfy the zoning standards for height.  At the meeting, the applicant argued that there could be an interpretation that the zoning standards could be met for the limited use zoning standards (and thus not require a conditional review/permit). But the Committee sided with the Coordinator’s interpretation of the Zoning Ordinance, and thus determined that the proposed facility required a conditional use review and permit.

Past zoning interpretations have gone the other way, however. The Tower Committee has signaled that the industry can circumvent the conditional use zoning regulations that are required for new cell towers by conspiring with PEPCO or other legacy utility pole owners. For example, when PEPCO lacked capacity for Crown Castle to attach facilities to existing utility poles, even though PEPCO had demonstrated no need for additional new wooden poles to support its electric distribution lines, the Tower Committee recommended/approved the installation of new wooden poles for the exclusive (or at least the primary and sole necessary) purpose of attaching Crown Castle’s DAS facilities in the public rights-of-way. The TFCG suggested that if the poles would, in the end, be owned by PEPCO then no conditional use standards for new cell towers would apply. See, for example, TFCG application 201601-15 and the corresponding minutes of March 2, 2016. Highway studies and recent comments to the FCC submitted by local governments (including Montgomery County) demonstrate that additional utility poles in public rights-of-way present unnecessary roadway hazards for vehicles, cyclists, and pedestrians. See, for example, the Comments of The Smart Communities Siting Coalition, Ex.4, Report and Declaration of Steven M. Puuri (https://ecfsapi.fcc.gov/file/1030998488645/COMMENTS_SMART%20COMMUNITIES%20SITING%20COALITION.pdf).

The CTC contract requires that Tower Coordinator recommendations to the TFCG be based on “zoning standards, effect on land-owning agencies, and effect on present and future public safety telecommunication facilities and plans.” Nevertheless, COMAR 2.58E.01.05 also requires the Tower Coordinator’s recommendation to the Tower Committee to “be based on: “(e) potential impacts on the surrounding area.” You are no doubt aware that these procedures, which were originally passed as 21-02AM, were established for several purposes, including “minimizing impact to citizens.” Arguably, the impacts upon surrounding areas and on the County’s citizens have been overlooked or drowned out by those interests that are represented and have a voice at Tower Committee meetings. Furthermore, by intentionally and pre-emptively excluding potentially relevant information provided by members of the public, the Tower Committee is undermining COMAR 02.58E.01.06.c.3. This part of the regulation, which discusses the TFCG’s application review, states that “Group review of an application may include… [a]ny other relevant information concerning the proposed siting of the telecommunications transmission facility.”

As stated in my article in this month’s Civic Federation News, “[a]ttendees representing the industry participate in the (TFCG) meetings. Industry representatives speak in favor of their own and each other’s applications, and they may share information – even a slideshow – to promote upcoming applications. Members of the industry also provide their opinions on policies.”  But, as the article explains, members of the public – even affected property owners/residents – are barred from speaking at Tower Committee meetings.

 

To tell residents that their concerns may not be aired at Tower Committee meetings, and may only be aired in a land use review or may not be aired at all, is likely a violation of their rights, and it is certainly an insult, especially when:

·        The Tower Coordinator’s and Tower Committee’s reviews render determinations on and influence whether a proposed wireless facility requires a conditional use zoning review/permit;

·        Industry’s representatives have been given free-access to air concerns at Tower Committee meetings;

·        The Tower Coordinator, rather than conducting independent analyses, relies upon applicant analyses and opinions;

·        The TFCG regulation articulates the intent of “minimizing impact to citizens”; and, the regulation provides the opportunity for the Tower Committee to review each application by considering “[a]ny other relevant information concerning the proposed siting of the telecommunications transmission facility.”

The Tower Committee initiated some new practices at its April 2017 meeting. Industry representatives are now only supposed to respond to questions regarding their applications, which is different than what minutes show has happened at previous Tower Committee meetings. Yet the outcome for applications at April’s meeting was no different. This was clearly demonstrated with Mobilitie application 201609-12. The Tower Coordinator “recommended” the application, even though the application was flawed. In his presentation to the Committee, the Tower Coordinator tempered his recommendation, explaining that he was really “not a fan” of approving an application, such as this one, where the applicant had not received the structure owner’s authorization granting rights for the attachments. There were also Committee questions and concerns that the applicant was unable to answer. Nevertheless, the Tower Committee, as usual, unanimously “rubber stamped” the application as “recommended” (approved).

My Civic Federation News article explains that the Tower Committee lacks balance, fairness, and accountability to County residents. These failings are by design; the failings of the Tower Committee are by your design. You, as the Director, select the member agencies of the Tower Committee. You also supervise the TFCG administrative staff, and the staff is responsible for overseeing the CTC contract. You are responsible for having greased the skids for the wireless industry at County residents’ peril. But it is within your authority to correct these problems. I urge you to institute corrections that make all TFCG processes balanced, fair, and accountable to County residents, posthaste!

Sincerely,

Sue Present