County Council LMHosted
"Floreen's Office, Councilmember"
Hans.Riemer@montgomerycountymd.gov,
"Leventhal's Office, Councilmember"
Councilmember.Hucker@montgomerycountymd.gov,
Councilmember.Katz@montgomerycountymd.gov,
Councilmember.Berliner@montgomerycountymd.gov,
Councilmember.Navarro@montgomerycountymd.gov,
councilmember.rice@montgomerycountymd.gov,
Councilmember.Elrich@montgomerycountymd.gov
Dear President Reimer and Members of the County Council,
Please postpone action on ZTA 18-02. It would be premature for the Council
to consider action on the ZTA at this time. Some of the amendments that have
been recommended by the PHED Committee are improvements over the original
ZTA. However, as you will see below, many problems remain with the ZTA, and
new problems have emerged. Moreover, as many residents have been asserting
since well before the ZTA was introduced, the foundation of administrative
reviews and permitting processes that fail to serve the public interest, and
the application fee structure where taxpayers subsidize the wireless
industry, must be corrected first.
In advance of the May 3rd PHED Committee Worksession, I sent a message to
the PHED Committee and to its Legislative Analyst Jeffrey Zyontz regarding
misleading and inaccurate information in the Worksession Packet.
Unfortunately, some of those inaccuracies have made their way into the
Council Packet, too.
In my correspondence with the PHED Committee, I also discussed timing
issues, sharing that it was not until the day before the ZTA 18-02 Hearing,
March 19th, that a message came to me and to other concerned residents from
the CE’s staff that indicated a desire to work together to craft a local
solution. This message was an about-face: Our prior inquiries were
sidestepped, met with prolonged delays, or never answered at all, which
frustrated and stymied our efforts. But we had nevertheless persevered in
developing our Residents’ Alternative ZTA (ALT-ZTA) solutions, even if not
as quickly as Councilmembers would have preferred. And, I attached to my
previous correspondence the slides that outline our ALT-ZTA solutions, which
are also attached herein.
On May 3rd, when other residents and I who had previously testified before
the Council at the ZTA Hearing arrived at the PHED Committee Worksession, we
were delighted when the CE’s Special Assistant, Joy Nurmi, greeted us and
assured us that the PHED Committee was not going to be taking any action on
the ZTA (no votes, just discussion). Ms. Nurmi graciously invited us to meet
with her and to work together. And we, of course, affirmatively responded.
Even after the Worksession outcome of the ZTA had morphed, and the PHED
Committee did take action, we remained optimistic. Promptly after the
Worksession, in preparation for the meeting with Ms. Nurmi, I prepared and
submitted a set of questions to the CE’s Director of the Department of
Permitting Services, Diane Schwartz Jones, seeking pertinent clarifications
and interpretations.
As for the PHED Committee Worksession, Chair Floreen also indicated that
the Committee would be taking no action on the item – no votes or
recommendations – there would only be discussion. However, as the discussion
progressed, the Committee reversed course and arrived at some recommended
amendments. And, now, much to our surprise, the ZTA has been expedited to
the full Council for action (tomorrow, May 15, 2018), which undermines
the value of the residents’ collaborating with Ms. Nurmi to craft a local
solution.
I urge the Council to postpone action on ZTA 18-02.
Sincerely,
Sue Present
1. Application/Permit Fees and Taxes. Passing ZTA 18-02 without first
increasing Tower Committee application fees to make the applications
entirely supported by the applicants shifts added costs to Montgomery County
taxpayers/residents. The information from the PHED Committee Packet, which
discusses the Executive’s budget, obscures the facts. Here are relevant
facts:
a. Tower Committee application fees are subsidized by Montgomery
County taxpayers/residents. (see
http://parentscoalitionmc.
wing.html )
b. Tower Committee application fees have not been increased since
2003.
http://montgomerycountymd.gov/
1303fees.pdf
c. According to CTC Expert Andrew Afflerbach, “it is more
time-consuming to evaluate applications for facilities in the PROW (public
right-of-way) than on private property.” See Exhibit 1, Declaration of
Andrew Afflerbach, p. 15,
http://montgomerycountymd.gov/
ie%20Comments%20-%20SMART%
d. Dr. Afflerbach’s firm, CTC, has long been retained by the County to
provide technical evaluations and support services to the Tower Committee.
CTC is paid on an hourly basis for its services. Therefore, based upon Dr.
Afflerbach’s statement, CTC receives greater compensation for its work
concerning applications for facilities in the public rights-of-way.
e. Mitsi Herrera told the PHED Committee that the Tower Committee
would need to come back to the Council to adjust fees this summer (at ~ min
01:21:55 of the Worksession).
f. Tower Committee records do not show meaningful evidence of pending
applications in Downtown Silver Spring. But the County anticipates a
significant number of applications in the future. At the 09/18/17 Small
Antenna Community Meeting, the County asserted that Verizon’s transmission
capacity in Downtown Silver Spring would begin to exhaust in 2018 (see slide
6:
http://montgomerycountymd.gov/
ommunity%20Meeting%20Sept%
meeting asserted immediate transmission capacity needs in the downtown areas
for other providers, too. The Tower Committee’s interactive map does not
identify applications as having yet been filed in response to the asserted
pressing capacity needs in Downtown Silver Spring. However, the map does
identify plans for numerous applications that have not yet been filed.
https://gis3.
addition, the PHED Committee’s discussion at ~min 01:18:45 recounted that
the County anticipates 700 upcoming installations.
g. ZTA 18-02 is scheduled to take effect 20 days after its passage.
Thus, any application filed with the Tower Committee will be filed with
bargain-rate application fees, on the taxpayers’/residents’ dime, until the
application fees are corrected.
h. At the 06/14/17 Wireless Technology Community Meeting, the County
identified as a “process improvement” to “Require 100% post‐construction
inspection to ensure deployments are built as promised” (and it therefore
recognized the deficits in DPS processes.) See slide 12,
http://montgomerycountymd.gov/
mmunity%20Meeting%202017%20v3.
i. No DPS process improvements were discussed at the PHED Committee
Worksession.
At the Public Hearing on ZTA 18-02, I was among several that testified
about the need for the Council to first address both the fees and the
administrative deficiencies within these agencies. The Council received data
collected by Rick Meyer, MC4T, which underscores the need for corrective
action first. The Tower Committee needs an overhaul. I hope that Director
Jones’s responses to my questions will help clarify why DPS seems to be
issuing many permits without proper regard for the regulatory standards and
processes. Please consider our Residents’ ALT-ZTA solutions to provide
residents the fair and appropriate protections that have been sorely lacking
for many years. See slide 7.
2. Conditional Use – New/Replacment Poles. The PHED Committee has
recommended a clarification to the Conditional Use language for New Poles
that is helpful in clarifying the intent of the original text. By removing
previously inserted words “from any property line” from line 173, the text
correctly provides that the new pole must meet the 1:1 standard for the full
height of the facility or the 300-foot dwelling setback, whichever provides
the greater setback.
I am concerned, however, that the Council has also received misleading and
confusing information in its Packet on this issue concerning when a
Conditional Use is required for new/replacement poles in the public
rights-of-way. Please note that at the PHED Committee Worksession, Mitsi
Herrera offered this clarification at ~ min. 01:21:55: “In the residential
area, if you want to put in a new pole or you want to replace a pole it
requires a Conditional Use. The ZTA makes no change to that. It continues to
require a Conditional Use.” Unfortunately a passage in the Council’s Packet
that is included from the PHED Committee Packet may add confusion: “Only
utility poles can withstand the stress of antennas. Where there are no
utility poles, the replacement of a light pole with an antenna that has a
street light on it would require conditional use approval.”
As the Planning Board’s recommendation explains, antennas and their
equipment are often not attached to pre-existing utility poles; replacement
utility poles are used to support heavy antennas and equipment. The ZTA
“[e]stablishes new regulations concerning utility poles (poles that support
electric wires), streetlight poles and parking lot lights. In order to
support antennas and equipment, typically the pre-existing pole must be
removed and a stronger and taller replacement pole is needed. Under ZTA
18-02, streetlights, utility poles, and parking lot lights in
Commercial/Residential, Industrial, and Employment zones, can be replaced as
a limited use under certain conditions as highlighted below.” See page
circle 23. ZTA 18-02 only provides Limited Use standards for new/replacement
poles in the Commercial/Residential, Industrial, and Employment zones. To be
clear, new/replacement utility poles for the support of wireless
telecommunications facilities continue to be Conditional Uses, as do any
poles that would be deployed in the right-of-way of a residential area with
underground utility service would be.
In the zones in which ZTA 18-02 does provide Limited Use standards, those
standards are inadequate (inadequate to meet protective community standard
as Limited Use) because the ZTA blindly permits additional height to utility
poles without establishing a base height or regulating a maximum height for
the facilities. Residents’ testimony documented that some of these
replacement utility poles result in facilities that are the heights of
macro-towers. So, this is another example of where the ZTA provides
inequitable protections to residents who do not live in detached-housing
neighborhoods. By contrast, our ALT-ZTA offers high levels of protections
for the residents of all neighborhoods and communities, whether the
replacement concerns a utility pole or whether it concerns a County
streetlight.
As previously mentioned, Rick Meyer, of MC4T, has documented significant
inconsistencies in past practices of DPS’s authorizations for the
deployments of antenna attachments to replacement and new utility poles in
residential areas. I look forward to understanding much more about DPS’s
permitting decisions for new pole deployments, and hope that the DPS
Director’s responses will help explain why some of the Tower Committee’s
recommendations, which were conditioned upon reviews by the Hearing
Examiner, were issued permits by DPS without prior OZAH reviews.
3. Property Values. The Council has received misleading information in
the Packet about property values. Montgomery County already concluded that
“the placement of small cells, particularly in the rights-of-way, presents
significant challenges and risks to communities including: Increased safety
risks, Negative impacts on adjoining property, local businesses, other
utilities, and on redevelopment projects…” Montgomery County, partnering
with the local Maryland governments of Gaithersburg, Takoma Park, Rockville,
Poolesville, Berwyn Heights, Capitol Heights, College Park, Greenbelt, Havre
de Grace, LaPlata, Laurel, New Carrollton, Perryville, Pocomoke City,
University Park, and Westminster, and with other local governments from
across the United States, shared the conclusions about the negative impacts
of wireless antenna facilities upon neighboring property values in Comments
to the FCC on March 8, 2017, under the name “Smart Communities Siting
Coalition.” These Comments are bolstered with the “Report and Declaration of
David E. Burgoyne for the Smart Communities Siting Coalition,” which was
attached in Exhibit 3. That report concludes that wireless facilities of all
sizes diminish property values.
http://montgomerycountymd.gov/
ie%20Comments%20-%20SMART%
As explained in my correspondence to the PHED Committee, Burgoyne
recognizes that larger facilities, and those without concealments, can have
greater adverse effects than smaller facilities with good concealments. That
is why, to protect residents, our ALT-ZTA establishes the standard
Completely Concealed Facility, which is a higher standard for concealments
than is required by ZTA 18-02. And Burgoyne indicates that it is important
to consider the full, potential impact of a facility, as it can be expanded
through the Spectrum Act. Our ALT-ZTA heeds this advice, but ZTA 18-02 does
not. Burgoyne also recognizes that adverse property value impacts can be
minimized if equipment is vaulted. So, we consulted with a vendor that has
developed waterproof vaults (proven to withstand hurricane conditions). And,
after doing so, and after reviewing other jurisdictions’ vaulting
requirements, we established standards for vaulting equipment in our
ALT-ZTA.
4. Setbacks. The PHED Committee’s recommendations restore the 60-foot
setback protections from single-family homes or duplexes to what has been
“small cell” antennas on poles in the current Zoning Ordinance, and to
Size-A classification antennas on poles, in the ZTA. This is an improvement
over the ZTA as proposed. However, ZTA 18-02 continues to offer no similar
protections for those residents that live in multifamily homes, or for the
residents whose homes are in the combination commercial-residential zones.
These are the homes are where you will find our adult children, our aging
parents, and where many families live because they find single-family
detached or duplex homes in the County out of reach. Please provide these
residents with equitable protections under ZTA 18-02.
For these residents, ZTA 18-02 technically requires antennas on poles to be
setback only 10-feet from their homes. And this setback offers very limited
protection. As noted on page 9 of your Packet, the PHED Committee elected to
ignore the encroachments that would extend into the setback (such as a
6-foot balcony or a 3-foot bay window). And the offset/expanse of the
antennas on poles has been ignored, too. Essentially, the distance from a
balcony to an antenna could approach zero. Please recall that your CTC
expert previously expressed concerns that where an antenna would be attached
to a utility pole, sited within 20 feet or so (from the dwelling), the RF
emissions levels could exceed FCC limits.
http://montgomerycountymd.gov/
%2014th%202017%20TFCG%
give a foreboding new meaning to the jingle from our old landline days,
“Reach Out and Touch Someone.” https://www.youtube.com/watch?
5. Building Heights. As is the case with setbacks in detached
residential zones, the PHED Committee has recommended restoring the existing
building height standards in residential zones, which improves protections
for residents in these zones. However, there are new loopholes: 1) This
restoration of the aforementioned 60-foot setbacks applies only to a Size-A
classification antenna -- not to the larger Size B, C, D, or E
classification antennas – so there is no setback from a detached home to
antennas that can be as large as 15 feet in height; and 2) single-family
residential neighborhoods both include and abut buildings for which building
height attachment standards are reduced to 20 feet. As a result, many
single-family homes and duplexes are threatened by the ZTA building height
reductions to 20 feet and the complete absence of setback standards for
antennas of all sizes that would be attached to these buildings.
Consider the example in the photo below. The detached dwelling at 8010
Flower Ave., Takoma Park, is zoned R-40. It neighbors a property zoned CRT,
which is among the zones that the ZTA would reduce building height standards
to 20 feet for the attachments of all size antennas, and their equipment,
too (or allows for the equipment to be ground-mounted along the property
line). As I previously explained in my ZTA testimony and other
correspondence to Councilmembers, these antennas and their equipment
(droning fans, back-up generators, and motors) could be close enough to the
neighboring homes to create disturbing noise, vibrations, and certainly
visual impacts. Furthermore, the two-story commercial building could take on
the appearance of a three-story building because the ZTA allows for an
infinite number of antennas and equipment cabinets to be roof mounted. That
could corrupt the residential neighborhood character.
Please note that the Council is considering amendments to solar panel
legislation on Tuesday, too (ZTA 18-01). If the owners of 8010 Flower Ave.
would want to install solar panels on their roof, or if they have already
done so, then the provisions in ZTA 18-02 that authorize installation of
antennas could interfere with residential solar collection.
The ZTA’s reductions in Building Height standards to 20 feet in
multi-family, commercial-residential, and employment zones poses the same
problems and inequities for residents who live in dwellings in multifamily
zones and combination commercial-residential zones as is mentioned above
concerning “Setbacks.” I await a response to my request to DPS Director
Jones for clarifications and interpretations of Zoning Ordinance provisions;
pertinent here are my questions concerning alignment with other sections of
the Zoning Ordinance that provide resident protections. DPS permitting
practices suggest those other sections of the Zoning Ordinance that provide
resident protections are not applied, and these residents have virtually no
protections from an infinite number of large antennas on building roofs and
façades. Please ensure that the character of these residents’ neighborhoods
and communities, and their quality of life, is respected and protected, too.
6. Double Poles. At the PHED Committee Worksession, Vice Presidents
from PEPCO and Verizon testified that they foresaw obstacles to migrating
all pole franchisee attachers and complying with the ZTA requirement to
remove any pre-existing utility pole within the required 180 days after the
installation of a new utility pole. Presuming that “after installation”
means upon the issuance of a Use and Occupancy Permit (U&O), I find this
6-month grace period to be inconsistent with the DPS permitting process, and
unrealistic, based upon the utility VPs’ statements and my personal
experiences.
Previous plans that I have reviewed, attached to Tower Committee
applications, assert migration of all attachers to the pre-existing poles,
and the expectation that pre-existing poles would be removed. See for
example
https://s3.amazonaws.com/
would seem in the spirit of Section 8-27 of the Buildings Chapter of the
Code to require the “clear[ing of] all construction and demolition debris”
and “restor[ation of] the established grade of the surrounding land” prior
to the issuance of a U&O. The discussion of double-pole issues that
transpired at the PHED Committee Worksession demonstrated that that there
are ongoing problems with double poles. My own experiences certainly bear
this out. For many years, I have worked to get numerous double utility poles
on my road, including the set that my house faces, removed. My journey has
included contacts with multiple DPS personnel, correspondence with the
County Council, communications with my district Councilmember’s staff,
complaints to the Maryland PSC and PEPCO, follow-up with what PEPCO
oxymoronically calls its “reliability contractor,” and most recently with
Verizon.
It should be patently obvious that once a U&O is issued and PEPCO begins
receiving its rent from the wireless permit holder, DPS’s direct and
indirect leverage over PEPCO for removal of the old pole and restoration of
the site would diminish. It would make more sense for DPS to maintain
permitting control. One way to do so would be to only issue temporary
permits until all work has been completed. Our ALT-ZTA provides more
stringent, resident-protective standards, which include:
a. (Application Standards) - If the facility will be located on real
property or on personal property (i.e. a structure) that is owned by a
person or entity other than the applicant, then those such property owners
must be co-applicants on all applications.
b. (Compliance and Enforcement) - DPS shall issue no final permit or
authorization to operate a wireless facility until DPS has conducted an
on-site final inspection of the premises, to verify that the facility has
been built as promised, and to document the site as being free of any
pre-existing support structures, any retired or abandoned transmission
equipment, or construction debris.
7. Signs. Apparently taking a cue from our testimonies and comments,
the C.E.’s staff recommended a text change to the ZTA to allow antenna
attachments on signs. The intent of this addition is appreciated. But
“Signs” has been added to the ZTA without care and essential protections,
creating new loopholes and disharmony in the Zoning Ordinance.
a. Loopholes. This text change fails to set the same standards for
signs as for parking lot light poles, restricting only Size-A antenna
attachments and requiring 60-foot setbacks from dwellings. As a result, the
addition of “Signs” creates loopholes, including in the detached residential
zones where the PHED Committee has attempted to mitigate some of the
existing loopholes.
b. Disharmony with Zoning Ordinance. This text change also fails to
recognize the Sign standards and the administrative processes for review and
approval, in Divisions 6 and 7 of the Zoning Ordinance, and therefore
creates additional disharmony for Section 3.5.14.C. Please recall that my
testimony raised other issues of disharmony between these telecommunications
sections and other sections of the Zoning Ordinance, such as Section 4.1.7.
My inquiry to Director Jones seeks DPS interpretations of these apparent
disharmonies as well as conflicts between the two telecommunications
sections, Sections 3.5.2.C. and 3.5.14.C. Our ALT-ZTA, in addition to
providing solutions that are more resident-protective, aligns
telecommunications solutions so that they are harmonious with the Zoning
Ordinance. See slide 9.
8. Legislative Intent of ZTA 14-04 – Loopholes. I alerted the PHED
Committee that contrary to the statements in Mr. Zyontz’s memo, ZTA 14-04,
which allowed for “small cell” antennas on existing structures, obviously
did anticipate antennas on poles, NOT just on buildings. The following video
clip of the Planning Board meeting, at ~ min. 05:53:00, provides the
Planning Board’s discussion of ZTA 14-04, which includes the presentation by
Mitsi Herrera and CTC’s Lee Afflerbach
(http://mncppc.granicus.com/
<http://mncppc.granicus.com/
&clip_id=1202). The discussion both details and includes slides of poles for
the small cells anticipated by ZTA 14-04. Nevertheless, the mis-assertions
of the legislative intent of ZTA 14-04 that had appeared in the PHED
Committee’s Packet have been carried over -- see page 8 of the Council’s
Packet.
a. Mr. Zyontz recognized this discrepancy in his presentation during
the PHED Committee Worksession, at ~ min. 56. But he explained that
regardless of the prior intent of 14-04, ZTA 14-04 only provided 60-foot
setbacks from “small cell” antennas on poles, not other size antennas. So,
ZTA 18-02 must provide additional protections to residents from larger
antennas attached to poles.
b. However, as noted above, by reducing the heights of buildings to
which antennas of all sizes can be attached to 20 feet, ZTA 18-02 creates a
new loophole. Without providing the compensatory 60-foot dwelling setbacks,
any dwelling that neighbors a building that is eligible for the ZTA 18-02
relaxed building height attachment standard of 20 feet is at risk for the
adverse impacts of large and numerous antenna attachments, with no setback
at all. This needs to be fixed!
As is noted on slide 3, our ALT-ZTA adopts the CE’s proposed antenna size
chart. But our ALT-ZTA favors solutions that eliminate loopholes and protect
all Montgomery County residents.
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