TONIGHT: Montgomery Co. Residents have been blindsided, kept in the dark, given the run-around, ignored,

WHAT - Montgomery County Council Hearing on ZTA 18-11

WHEN -  Tuesday, September 25, 2018 TONIGHT

WHERE - Council Office Building, 100 Maryland Avenue, 3rd Floor 

Hearing Room, Rockville, MD 20850

Public Comment on Montgomery County Zoning Text Amendment 18-11 from Sue Present

Residents have been blindsided, kept in the dark, given the run-around, ignored, and, when they
have attempted to alert the County to concerns about proposed facilities, they have been
muzzled. They have observed County administrative agencies welcoming and accommodating
telecom representatives and treating these members of the industry as partners, while residents
themselves have experienced being treated as obstacles and adversaries.
County staff will no doubt tell you that it has held meetings with residents. The underlying issues
and the crisis of confidence remain.
o Tower Committee and DPS Reviews and Enforcement. There is currently no established opportunity
for the public to comment on applications that come before the Tower Committee. In the County’s
recent FCC filing, its expert noted a persistent, twenty-year problem (on page 48): “a substantial
percentage of applications filed by carriers and their contractors have substantial omissions or
errors.” And, based upon the experiences of those residents who have followed the Tower
Committee’s applications, myself included, the Tower Coordinator does not catch every omission
and error; residents have identified many errors that the Coordinator has failed to identify. In a
recent meeting with County staff, we inquired about expanded opportunities for public input
comment in Tower Committee reviews to address these errors. We were told that such
opportunities for comment were unnecessary and only of interest to me. But, other plans are in the
works for the public to submit comments on replacement poles.
The FAQs say that the County Executive intends to establish a process for advance notice to affected
residents and public comments on applications for replacement poles. But that process would only
provide a very brief and likely insufficient opportunity to provide advance written comments. Details
are not yet available as to how those comments would be considered in the review process, if at all.
The excuse given for this constrained time period for comment, i.e., the need for compliance with
the FCC’s shot clock, is spurious. And it is noteworthy that there can be a lengthy lead time between
the County’s intentions for a Tower Committee regulatory change, and actual establishment and
implementation. For example, intentions were announced to the Planning Board in May 2010 (at
minute 1:03:15) for revising the Tower Committee’s application fees. But, almost eight and a half
years later, no proposals have come to the Council for approval.
In the same previously-referenced meeting with staff, we inquired about what have long
been taxpayer-subsidized Tower Committee application fees. The initial response to our
question was that the application fees for co-locations and modifications aligned with
existing costs. But probing further, we found that “costs” to the County only meant outside
contractor costs (CTC). When we followed up on coverage of internal agency staffing costs
and costs related to the members of the Tower Committee, we were told that those costs
were not covered and staff did not consider coverage of those costs justified because the
costs were already being covered through other means (taxes???). Please note (at minute
1:01:15), in 2010, the application fees, as a matter of policy, covered approximately 75% of
the engineering (contractor) costs and none of the internal staffing costs. It is also important
to point out that, guided by its CTC experts, the County anticipates between 700 and 5000
upcoming 5G antennas/applications in the future (see page 8). This ZTA would open the
floodgates! And, until the 2003 fee structure regulations are revised and corrected,
taxpayers will continue to be subsidizing these applications. Councilmember Elrich’s words
bear repeating: We should not be subsidizing the telecom industry for the work that we
have to do.

Residents’ complaints and frustrations concerning the Tower Committee have included the Tower
Committee’s failures to coordinate with other agencies and to require the other agencies’
adherence to the Tower Committee regulations (COMCOR 02.58E).
Most of the applications that would be filed with the Tower Committee for replacement poles
would be governed by COMCOR 02.58E.01.05.b, which provides public input opportunities. But
this is one of the regulations that the Tower Committee elects to ignore and/or to not enforce. For
replacement poles in the public rights-of-way, the Department of Transportation (DOT) is what
COMCOR 02.58E calls the “Land-Owning Agency.” Per COMCOR 02.58E 01.05.b, The Land-Owning
Agency must:
1. Review the site application in accordance with the agency’s siting standards and policy.
2. Receive and evaluate public input as part of the agency’s decision process.
3. Submit input concerning the application at the scheduled Group (Tower Committee review)
meeting via, its Group designee.
4. Maintain a record of all telecommunications transmission facility siting leases that affect the
agency.
In other words, the Tower Committee continues to ignore and not enforce the regulation that
requires that DOT must facilitate and evaluate public input for any WTF in the public right-of-way,
and must provide that input to the Tower Committee for its consideration in the Tower
Committees review of any replacement pole application. As the authorizing agency for street pole
design, street pole location, and ground-mounted equipment location, DOT has a responsibility to
be providing notice to and working with affected residents before applications are filed with the
Tower Committee.
In addition to these concerns, many complaints have been raised about antennas on utility poles in
the public rights-of-way that have received permits but do not meet zoning standards, and in
some cases are at locations/poles other than the locations/poles specified on the permits and/or
plans. DPS and the Tower Committee recently announced that their agencies have modified their
practices (they did not adopt new regulations) to ensure that zoning reviews would take place in the
future, after being alerted through recent complaints that zoning reviews for antennas in the rights-
of-way had been omitted in the DPS permitting process. A specific, identified utility pole is now
required for each replacement pole antenna application. The Tower Committee forwards the entire
Recommendation and Report, not just the Record of Action. DPS reports that it intends to review
antenna applications on utility poles in the rights-of-way for zoning compliance.

The measures that have been initiated by the agencies are probably steps in the right direction.
However, it doesn’t help these agencies’ images, their efforts, or the overall resolution of the crisis
of confidence to be disingenuous with the public. For the agencies to be asserting that public
complaints and testimony to the Council were what alerted them that antenna attachments to poles
in the public rights-of-way were not receiving zoning reviews is not borne out by public records,
which show these agencies have been aware of the practice for many, many years. Just ask Vicki
Huo, the owner of the home at 7800 Brickyard Road, in Potomac, where a huge replacement pole
with antennas was installed in 2011. She complained, but she got the run-around and was ignored.

So long as PEPCO and the other utility pole owners are not required to formally be a part of the
application process, there will likely still be permitting hiccups. It also remains a problem that the
Tower Committee and DPS do not adhere to and require compliance with COMCOR 02.58E.01.08:
Building Permit.

a. A building permit is required for the construction of a telecommunications
transmission facility in the County.
b. All permit applications must reference the Wireless Communications Site
application number, and must include the recommendation of the Telecommunications
Transmission Facility Coordinating Group and the approval of the land owning agency, if
applicable.
c. Building permit approvals may be expedited if copies of standard construction
drawings are on file with the permitting agency.
d. Upon issuance and release of the building permit, a copy of the permit will be sent
to the Tower Coordinator for filing with the application and supporting documentation.
A copy of the site plan and construction drawings will be furnished to the Tower
Coordinator upon request for use in updating the database.

DPS Reviews and Permitting. DPS provides no public notice for the permits that are issued for
antennas in the public rights-of-way in residential zones, unlike building permits that are issued for
residential properties. There is no clear process by which the public is afforded an opportunity to
comment on these DPS Limited Use reviews. The documents used in DPS reviews may be different
than the Tower Committee’s reviews for the same site, because the Tower Committee frequently
relies upon only draft documents. And, because the above-mentioned COMCOR 02.58E.01.08 is not
followed, there is no common identifier for the application used by both DPS and the Tower
Committee, and the DPS review process is often less than transparent.

In a recently-posted “fact sheet,” the County indicates: post-installation, DPS will inspect work
performed to enforce code compliance. But, what will be the scope of this code enforcement? Like
so much, the devil is in the details. For example, as previously mentioned, enforcement would not
include the old utility pole removal and pending site restoration (including any post-pole removal
vegetation). And, residents have already been told that DPS will neither check nor direct checks for
RF emissions levels to ensure compliance.

The number-one purpose of DPS’s inspections is to ensure safety. If DPS will not be checking RF
emissions, then who will be checking? Residents have not received clear and cogent answers when
asking the Tower Committee this question. (CAP) requires initial and ongoing RF emissions testing,
and we include buffers from those residential uses where people sleep, learn, and convalesce. CAP
also requires WTF permits to be renewed every 10 years, which is not required by the ZTA.

As I walk around my neighborhood, which has both aerial and underground electric utility lines, I see
trees in neighbors’ front yards close to the street lamps. And I reflect upon the days when my
children were young. We had a lawful climbing structure that abutted a side property line. And from
their early ages, both of our children used to climb the trees on our lot. Who will be checking to be
certain that when antennas are proposed 10 feet to 30 feet from homes, that those antennas would
be installed at safe distances from where neighborhood children will be climbing trees or play
structures? Who will be checking as the trees grow taller and wider, too? I know of no person or
agency that will be responsible for checking to ensure compliance from where children play: No one
will apply the antiquated FCC RF emissions guidelines; and no one will be checking, using more
realistic scientific research and information that specifically applies to children’s bodies.