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.

Tell Montgomery County Council to Say NO to ZTA 18-11; say YES to CAP!

Yesterday began a new school year. Hopefully your child’s journey to/from is school safe. However, if Big Telecom has its way and Zoning Text Amendment (ZTA) 18-11 passes, expect safety to diminish.  ZTA 18-11 is about making regulations cheap and easy for the wireless industry; It’s not about protecting residents or neighborhoods.

Example One: The ZTA would allow large dangerous equipment cabinets along our streets and roads: equipment so large — 20 cubic feet in size (2 feet x 2 feet x 5 feet tall) — that it would risk obscuring children from traffic at bus stops or while walking between school and home. Many other communities, concerned about the safety of their residents and the quality of their neighborhoods, require large equipment along streets and roads to be vaulted underground. Concerned Montgomery County residents want the equipment in underground vaults in Montgomery County, too. Montgomery County government staff have told us that the County doesn’t want to require equipment underground in the ZTA because vaults would be too expensive for the wireless industry.

Vaults are the preferred method in the Comprehensive Antennas Proposal (CAP): regulations that fairly balance providing services with the needs for strong resident protections. Please sign up to testify at the Public Hearing on the evening of September 25th. And contact our County Council to let them know that ZTA 18-11 IS NOT SAFE OR APPROPRIATE FOR THE PEOPLE OF MONTGOMERY COUNTY. Join us in asking the County Council to Say NO to ZTA 18-11; say YES to CAP!

-- Sue Present

WTOP: “We should not be subsidizing the telecom industry for the work that we have to do,”

...Resident Sue Present, who has objected to the zoning changes, said she will focus on working to push the county to increase those application fees paid by the telecommunications industry, as well as getting companies to comply with regulations surrounding maintenance and adaptations to utility poles...

https://wtop.com/montgomery-county/2018/05/montgomery-co-council-set-zoning-standards-cell-towers/

Sue Present Finds Source of Income for County that Councilmember Hans Riemer Missed

Montgomery County Council President Hans Reimer says Councilmembers seek budget increases totaling $21M over the Executive’s budget, and that the Council looked for ways to reduce Executive’s budget as offsets, but it was "tough" to find places to cut.(See 05/14 briefing, beginning at minute 6:27 - http://www.mymcmedia.org/riemer-meets-media-8/ 

Try harder!!! 

1) Cut the Department of Techology Services (DTS) budget for the Tower Committee, and insist that wireless application fees be immediately increased so that the wireless industry fully covers costs for the reviews and related administrative services for antennas and cell towers, NOT TAXPAYERS (NOT THE BUDGET); 

2) Require DTS to adopt a high-volume surcharge (like Gaithersburg has done), so that none of our administrative agencies get overburdened with upcoming flood wireless applications, which are anticipated as soon as ZTA 18-02 is passed; and 

3) DO NOT PASS Zoning Text Amendment 18-02 UNTIL THESE FEES AND THEIR AGENCIES HAVE BEEN FIXED!

Sue Present, "Please postpone action on ZTA 18-02....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."

County.Council@montgomerycountymd.gov,
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.blogspot.com/2018/05/moco-subsidizes-cost-of-revie
wing.html )

b.      Tower Committee application fees have not been increased since
2003.
http://montgomerycountymd.gov/cable/Resources/Files/Towers/documents/execreg
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/cable/Resources/Files/Towers/documents/Mobilit
ie%20Comments%20-%20SMART%20COMMUNITIES%20SITING%20COALITION%20(2017).pdf 

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/cable/Resources/Files/Towers/documents/ZTA%20C
ommunity%20Meeting%20Sept%2018%202017%20v2.pd ). And the discussion at that
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.montgomerycountymd.gov/WirelessAntennasAndTowers/   In
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/cable/Resources/Files/Towers/documents/5G%20Co
mmunity%20Meeting%202017%20v3.pdf

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/cable/Resources/Files/Towers/documents/Mobilit
ie%20Comments%20-%20SMART%20COMMUNITIES%20SITING%20COALITION%20(2017).pdf 

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/cable/Resources/Files/Towers/minutes/2017/June
%2014th%202017%20TFCG%20Meeting%20Minutes.pdf . The ZTA, if passed, could
give a foreboding new meaning to the jingle from our old landline days,
“Reach Out and Touch Someone.” https://www.youtube.com/watch?v=HO17B-ACRn0. 

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/montgomerycountytfcg/Applications/201005-07.pdf. It
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/MediaPlayer.php?view_id=2
<http://mncppc.granicus.com/MediaPlayer.php?view_id=2&clip_id=1202>
&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.