Fire official throws water on 5G flare-up concerns

Michele Willer-Allred, Staff Reporter – 11:53 am PST December 17, 2020 – Malibu Surfside News

Malibu residents on Wednesday had another chance to weigh in on an updated draft wireless communications facilities ordinance, which the Planning Commission will consider in January.

The City Council will also consider during their first meeting in January the hiring of consultants to work with the city to conduct wireless reviews. The council will hear the draft ordinance in February, and if adopted, it would become effective 30 days later.

Richard Mollica, acting planning director, encouraged the public to submit written correspondence to the city on what they would like to see in the draft ordinance. A survey will also be going out to residents to give their input. 

More information is available on the city’s website.

Several years ago, the council directed staff to prepare a new wireless ordinance.

Mollica said that after the Woolsey Fire, a number of residents also approached the city with concerns about wireless installations and fire concerns.

Complaints were also lodged about the lack of cell coverage and phone service during, before and after the fire.

On Nov. 9, the City Council held a special meeting and adopted an urgency ordinance to regulate the permitting of wireless facilities in public rights-of-way, and considered adopting a resolution establishing design and development standards and permit conditions for wireless facilities in public rights-of-way. Second reading of the ordinance is scheduled for Jan. 11.

Gail Karish, a partner at Best, Best & Krieger, the law firm representing the city, is a specialist in telecommunications law and explained that no local or state decision or regulation can create a prohibition of personal wireless services within a community and can’t deny a wireless application.

Localities can only ensure compliance with federal standards, and timely action is required on all applications.

While many residents have health concerns about the effects of 5G technology, under federal law, a local or state government can’t regulate wireless requirements based on concerns regarding any health or environmental effects of radio frequency emissions as long as those facilities comply with FCC standards.

There are also additional limits on local authority over installations in public rights-of-way.

“But the good news overall is that, as a general matter, other than these pretty significant limitations, both the federal government and the California Public Utilities Commission defer to local governments on land-use regulations, particularly in respect to macro cell sites,” said Karish.

Karish added that the city can set reasonable standards for aesthetics and safety, and can reject a specific installation if it violates certain standards, but it must be supported by substantial evidence.

Susan Foster, an honorary firefighter with the San Diego Fire Department who has written local zoning ordinances since 2001 and is working with the group called Malibu for Safe Wireless, said that Malibu’s approach with its ordinance, and inspection and enforcement of wireless facilities “fails in each of these areas.”

“It is therefore no surprise that you now have almost uncontrolled proliferation (of these wireless facilities), upset residents and unsightly, unsafe facilities,” said Foster, who added that she develops feasible fire protection guaranteed language in ordinances and devises protocols to reduce fire risk from an influx of cell towers.

Foster encouraged the city to have certain distance requirements between wireless facilities and setbacks from homes and schools, and disagreed with the city’s recommendation for utilization of new and unsafe strand-mounted wireless facilities, which would put tension on poles and move with the wind.

Malibu resident Kraig Hill said that state law says that new development should be sited and designed to minimize adverse effects on scenic and public viewing areas.

“Your weighing of that purpose is supported by the General Plan vision statement, which provides on behalf of Malibu citizens, you have an affirmative commitment to sacrifice urban and suburban conveniences,” Hill said. “And it appears there’s some consensus that anything beyond basic voice and text is a suburban convenience, which you have an affirmative commitment to sacrifice. You have jurisdiction to say that Malibu needs no more new facilities on a purely aesthetic basis.”

Council member Paul Grisanti asked if the city could monitor radio frequencies of facilities.

“Why wouldn’t we do it and ticket them, charge them and force them to fix anything that registers more than they’re allowed to be emitting?” he asked.

Karish said cities can’t impose a monitoring system. (Calabasas tried and was sued by a telecommunications carrier.) She said that Malibu is actually trying to ensure that there is compliance demonstrated in the initial application.

Los Angeles County Assistant Fire Chief Drew Smith also weighed in, saying that the fire department has no supporting data that he has seen that 5G infrastructure causes fire.

He did say that having a “more robust communications portal is good business for fire” and law enforcement.

“From a statistical standpoint, I’m unaware of any problems that we have from the cellular industry causing any fires, especially wildland fires,” added Los Angeles County Fire Division Chief Nick Duvally.

Council member Bruce Silverstein said he had concerns about the limited time members of the public could speak during public comment on such an important issue.

Silverstein called the workshop a “sterile kind of process, kind of a check-the-box (event) so the city can move on to another stage,” and requested more opportunity to give more input and drill down on the issues. 

Assistant City Attorney Trevor Rusin said as the process goes on, there will be more opportunity for public hearing.

“This (meeting) gave a lot of food for thought and information as this gets put together,” Rusin said.