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Langley, Washington Enacts Strict Code For Wireless Antennas To Minimize Adverse Impacts on Community. A Back-Door Strategy Successfully Leapfrogs Government Gridlock.
Citizen League Encouraging Awareness of Radiation
CLEARwhidbey@proton.me CLEARwhidbey.org
October 27, 2022
A local activist with the community organization CLEAR used a successful crowd-fund to get a bullet-proof Campanelli wireless code for a small Washington city! A first such code in the state!
Local activists in the U.S. are concerned about the accelerating push of huge towers and distributed 5G minicell systems. They have heard often that revising their local city or county telecommunications code is an essential safeguard against FCC-enabled stealth and bullying tactics of Big Wireless. There is an expertly recognized body of recently developed legally protective clauses needed to bolster old codes. They empower governments to take back local control of planning and safety from Big Wireless. The challenge is to get local authorities to act as they fear technical complexity and they tremble about legal trouble from the FCC or big telecoms. They hide behind inaction, citing budget and staff shortages. After navigating a maze of trial and error, Mark Wahl of CLEAR put together a quick, successful pathway for informed citizens to achieve a state-of-the-art protective wireless code; it uses a fraction of the usual time, expense, and effort. This challenge-resistant code for the City of Langley, WA is now legally binding and reachable with this link: Langley’s PERSONAL WIRELESS FACILITIES code.
Some Strategic Features and Significant Details in Langley’s New 2022 Ordinance
- Health Aspects. No health aspects are mentioned at all in the code! Yet it protects health! (See the special “Health Aspect Discussion”* below.)
- “Effective Prohibition.” Another city action forbidden by the TCA is denying a permit in ways that result in total prevention of wireless cell service to any significant part of the population, thus creating an “effective prohibition” of telecommunication. This code steers carefully around this by only insisting that applicants submit well-defined, probative evidence of a lack of alternative sites. This indirectly screens out health-dangerous or careless placements, also constricting redundant, overpowered, and intrusive technology while not directly stopping legitimate telecommerce.
- Moderation Guided by Courts. Clauses are generated from Andrew Campanelli’s experience in courts with actual judges who rule in telecommunications cases. First, they are not arbitrary but give general deference to higher Circuit Court decisions. They generally prefer that a code should not appear excessively burdensome to developers, i.e., not “out to get” them or determined to block them. Thus, from the many lawsuits he has encountered, he limits code criteria to only what becomes actually significant to retaining definitive but reasonable city supervisory powers over wireless facilities.
- An example of Strategic Moderation—Setbacks: Strategically, Langley’s code includes an exception to a 300 ft setback in residential areas. It says existing utility poles that are closer than the allowed 300 ft. may also be allowed for antenna location. This exception feels dangerously permissive of a pole 10 feet from a bedroom window. However, he says, setbacks in themselves don’t carry the day for a permit. The code also has extremely strong insistence that developers choose and document all chosen locations, assuring that this choice is the very “least intrusive.” Assume a developer has already cleared the code bar of having documented a true “gap” in cell service needing to be filled and that this location fills that gap. The chosen site must then be verified as the “least intrusive” of all possible fillers of the documented coverage gap. Then the code goes on to demand proof that this location must not be harmful to property value, viewscape, neighborhood character, or general aesthetics, and must have a sufficient safe fall zone. Why include this “closer power pole exception” at all? It shows judges that the city is trying to not be unreasonably burdensome with its generous 300 ft. setbacks. Campanelli knows it is close to certain that those closer poles will inevitably fail one of the above tests and force the applicant toward 300 ft or longer setbacks and lower priority areas as enumerated in the code. He notes that even if this “closer-in loophole” is not included, a developer would ask for a variance with the statement that there is hardly anywhere an antenna can be erected with the large setback the code demands. (Variances are amply provided for in the code, also to prevent presenting to a judge an appearance of being too legally obstructionist on applicants—see also #4.)
- Another example of Strategic Moderation—Indemnification: The Langley code lacks the insistence that several progressive codes have, namely that the permit-seeker provides proof of liability insurance from citizen lawsuits around any harm from the tower. They say the insurance must include indemnity from pollution, and it must indemnify the city and all its personnel. (The “pollution” term legally includes electromagnetic pollution.)
It is widely known that major secondary insurers (Lloyd’s of London, Swiss Re, etc.) won’t insure against electromagnetic harm, making such commercial insurance virtually impossible to find, so this is a kind of a “Catch 22” for the permittee. While this sounds like a good high bar to force on developers, is very burdensome and this “gotcha” will be seen so by a typical judge who will then lean toward helping developers work around it. For example, it can be argued in court that if the FCC standard is being observed for all the equipment used by the developer (insisted on in Langley’s code) so safety is already assured. Conclusion: the developer is not going to lose any suit for EMF harm and thus need not indemnify anyone. (We of course know the FCC standard assures no real health protection but it is technically legal and judges will agree.) Thus an overly burdensome City indemnification requirement could result in some overall judicial leniency for the developer.
- Variances. Provision of a variance process proves the code is not “effectively prohibiting commerce” with its requirements. It prevents a developer from arguing that the code is too burdensome as it provides exceptions. Yet Langley’s code-variance provision is quite strong. It requires that any applicant declaring discrimination must submit substantial, well-defined, “probative evidence” of a significant gap in service as well as a real lack of any workable alternative sites. This bar of proof is set high by the code
- About ALEC-law states: Several have inquired about whether a Campanelli code can be crafted to be effective if a city is in an ALEC (American Legislative Exchange Council) state. That means one of about 20 states that have had their legislatures pass an industry-friendly ALEC-templated law granting excessive antenna location rights to wireless developers. This tramples on local zoning ability and ultimately on citizen rights to safety, city character, and property values.
Campanelli says that it is still advantageous to have a progressive code on the books that grant a city discretion in numerous telecommunication facility aspects, even those currently forbidden by the ALEC law. That’s because he carefully includes in every code the clause: “…To the extent that any provision of this chapter is found to conflict with any applicable federal or state law, it is the intent of the city that the remaining portion of this chapter which has not been found to conflict with such law be deemed to remain valid and in full force and effect.”
He has already seen in some of these ALEC states there are brazen acts of “in your face” antenna developments that are setting off reactions in citizens. These will inevitably lead to citizen pressure for the state to pull back parts or all of its permissive ALEC laws. Even if part of a restrictive ALEC law is pulled back, these codes will immediately have maximum applicability allowed by the state. Consider a city with a weak, permissive code reflecting the current ALEC state code: its code will quickly be behind on state law updates, scrambling to claim in a timely way each new freedom that becomes available by state law changes.
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*Are There Any Provisions for Health in the Code?
Resident health protection, surprisingly enough, is not even mentioned as a permitting criterion anywhere in this 48-page code! The reason is strictly strategic on the part of Andrew Campanelli (as it is with other astute wireless attorneys). Strategy: the Telecommunications Act (TCA) of 1996, heavily influenced by the wireless industry, and the touchstone of all wireless law in the last 27 years, specified that no wireless technology may be denied a permit by a local government for only “environmental reasons.” (“Environmental” has regrettably and wrongfully been interpreted to include human health by later high courts). Wireless companies have elevated this to almost a rallying cry. They scrutinize wireless codes and permitting actions, looking for hints of a city’s reliance on health criteria for deciding antenna locations. When health is determined to be a major reason for hampering a tower permit the developers to threaten legal action claiming “dependent on health criteria” and they can win a permit in court. This code ingeniously uses a variety of other allowable factors contained in the TCA to place limits on health-endangering antenna placements.
Other Significant Code Features
1) By requiring strong evidence of “gaps in service,” it controls the number of what it calls personal wireless service facilities (PWSFs) needed for good cell telecommunications coverage (not necessarily including full internet connection);
2) Adverse impacts upon historical and/or scenic properties are limited by strong evidentiary demands;
3) Protecting persons and property from potential structural, ice fall, debris fall, collapse, and fire dangers expands the area around a tower that must prove safe, thus limiting potential locations;
4) It clearly grants authority, and provides detailed directions, readable by even lower experienced Langley authorities, to confidently demand in advance from applicants fully detailed ownership and operator documentation.
5) Authorizes hiring additional consultants at the applicant’s expense if so needed to help process, especially technical requests,
6) Gives strong rules and penalties related to violating the FCC radiation standards, including easily losing permit rights for delayed or careless behaviors.
8) Authorizes the city to conduct randomly timed, annual emissions testing or PWFSs at the owner’s expense,
9) The code takes the FCC’s official view that all PWFS are NEPA “undertakings.” This means that a request for a NEPA environmental assessment is encouraged where deemed necessary. The hearing examiner may request a NEPA review and request FCC oversight in requiring this.
10) The code includes a notice that Langley takes seriously legitimate American Disabilities Act (ADA) claims from medically qualified electrosensitive citizens requesting accommodation. It doesn’t specify actions but puts developers on notice that a permit may experience complications if an ADA claim occurs.
Background
Typical of many towns and smaller counties, in 1997 Langley, WA crafted into its rules a wireless code that was one page long, devised when cell flip phones using 1G were just appearing in the pockets of a few citizens. That simple code allowed a wireless developer to promptly attach a tower to a power pole far too close to some citizen homes. The pole was upgraded in strength and complexity a couple of times later. In 2018, after hearing about the electro-sensitivity issues of some friends, Mark Wahl, who had been a ham radio operator at age 16, began to school himself on current electromagnetic issues. Along with other concerned friends, he ultimately helped form and direct what became the CLEAR (Citizen League Encouraging Awareness of Radiation) organization. He gradually discovered that his small city government was oblivious to the mushrooming national wave of local wireless challenges that were destined to arrive, unmet, at its doorstep.
Empowering and educating a local government on wireless dangers can be daunting for a variety of reasons. Wireless telecommunications is a multi-layered sandwich of electrical engineering jargon, corporate tactics, regulation updates, Circuit Court decisions, and local telecommunication regulations. Health information is often the least known or considered as intersecting any of these layers, even as radiation health harms have an impressive and ever-growing body of research behind them. Citizens and government officials commonly avoid getting informed on these complexities, relying on industry and the industry-biased FCC to guide their actions and judgments. After numerous hours of consulting the work of a plethora of online resources, going down rabbit holes, and making a good share of wrong turns, Mark sorted through these layers, ultimately spreading understanding it to the CLEAR’s growing membership. He developed and used a mailing list and community seminars, and he found a local grant to help sustain what was to become a growing list of tasks.
Meanwhile, the premature glioblastoma death of a key community member who lived for decades near the city’s harmful tower sparked a CLEAR vision and action task – get strong control of local telecommunication towers through a good telecommunications code! A push for a state-of-the-art update of Langley’s deficient code could be used as a model to influence the same in neighboring towns and even inspire a fix of the antiquated 6-page wireless code of the whole County as well. This could be the first domino!
A two-year maze of confusing city documentation, technical electronic complexity, arcane legalities, local politics, official foot-dragging, widespread poor official understandings of RF technology, and Federal Communications Commission obfuscation ensued. Mark emerged with a strategy for much quicker action that can be duplicated in other small cities and perhaps larger ones also. It, of course, cannot be started immediately by a citizen in a vacuum; it rests on at least a moderate amount of community network building and cultivating the support and interest of a few officials.
The process can then cut to the chase dramatically to incorporate two shortcuts: the first is the code-creating skills of NY attorney Andrew Campanelli. These are legally advanced, widely-regarded, reasonably affordable, and time-efficient services available with a short negotiation time. This eliminates lengthy, costly work with the local city attorney(s) whose knowledge of telecommunications law is usually quite deficient (regardless of their self-estimations). The second is the power of crowdfunding. The gofundme campaign used in this instance combined community education with gathering financial support, all on a relatively short timeline. Here is the gofundme campaign page. This bypassed many hours of time-consuming budget battles. The result was a smaller town achieving a state-of-the-art 48-page wireless code in record time. Following the choice of these shortcuts, the timeline was less than six months in total to have a state-of-the-art telecommunications code with the force of law. Here it is Langley’s, first such in WA state, linked as an “Exhibit A” for all to use in your respective jurisdictions for the purposes of persuasion and illumination: “Chapter 18.23 PERSONAL WIRELESS FACILITIES.” See https://www.codepublishing.com/WA/Langley/#!/Langley18/Langley1823.html%2318.23
Here is a fuller, more detailed nearly 3-page account of the ups-and-downs, in-and-outs of this action, ending in the insight and action to rapidly resolve a victory. It may be of use to some activists. Mark Wahl can be reached through the contact information above.
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