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Thread: Wireless communications and "perceived health risks"

  1. #1
    Super Moderator luckless pedestrian's avatar
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    Wireless communications and "perceived health risks"

    our Planning Board is wrestling with the concept that there are likely public health issues from towers but they want to have setbacks from schools and daycares just the same (1500')

    our town did not put in a wireless ordinance soon after the 96 Act because, in reality, the market wasn't there, so there was no need to - we scrambled to do one this past year because we had interest from the industry (and they are watching our space closely) -

    the way I worked it for the Ordiance we have was to balance the comp plan policies that speak to enhancing our access to technology with the needs for protecitng visual quality - so early staff drafts were highly (hyper) focused on visual impacts -

    one other avenue we are looking at is the ability to control based upon property values

    the coverage we have now is towers in exisitng buildings or accidentally from off-island towers

    has anyone dealt with this situation - it almost becomes an ethics problem because I can't say "no problem" to ordinances that I know violate the Act but in good conscience, if there are risks that we now are finding more about, how can I be a robot about it?

    I know that it's the phones that are shown to cause damage - but European studies also have the link to the towners - the problem is there are no US studies and the Act says no regulaiton due to perceived health risks -

    thoughts? experiences?

  2. #2
    Forums Administrator & Gallery Moderator NHPlanner's avatar
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    Don't touch this one. As soon as you add anything relative to RF emissions or health risks, you open yourself to a losing battle in any TCA case. The federal law prohibits any local regulation on RF emissions, and until that changes (highly unlikely) you cannot regulate it locally.
    "Growth is inevitable and desirable, but destruction of community character is not. The question is not whether your part of the world is going to change. The question is how." -- Edward T. McMahon, The Conservation Fund

  3. #3
    Cyburbian
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    the '96 act prohibits local governments from making any decisions or regulations based on a perceived health risk.

  4. #4
    Super Moderator luckless pedestrian's avatar
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    ack - yes I know that - my point is: what do you do when your Planning Board feels otherwise - it's counterintuitive in planning to say that you can't regulated due to public health because that was the main reason why zoning was declared constitutional to begin with - I'm likely going to hang back and robotically say no, you can't regulate it like that, but does anyone else think this is a little odd?

  5. #5
    Cyburbian Plan-it's avatar
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    LP, I agree with the other two posts. I worked in the Cell industry during grad school for supplemental income and I would wait until they used that justification in one of their zoning decisions and immediatly slap them with a lawsuit. It happenend about three times and the developer won every case. Stay far away from that one as NHP said.

    Edit: Just tell them that the Federal Telecommunications Act of 1996 prohibits them from making a decision using health concerns as a justification for a decision.
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  6. #6
    Cyburbian transguy's avatar
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    Get your City Attorney involved. It may be beneficial for the Board to hear this information from an Attorney. Otherwise, it may take a lawsuit for your Board to realize that they can't do this. It seems like there are a lot of times when Boards will say things along the lines of, "well, let them sue us." I think that this is a case where there wish will likely come true. Telecommunications companies know the law and (in my experience) will waste no time getting a lawsuit in motion.

  7. #7
    Super Moderator luckless pedestrian's avatar
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    the town attorney has told them but I am going to bring her to the next meeting on this to tell them more firmly

    I have an attorney on the Board who is convinced there is case law to support putting some setback controls for health concerns - that's what's so hard, is having an attorney who is a Board member saying the opposite as the Town Attorney -

  8. #8
    Cyburbian Plus
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    No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commissionís regulations concerning such emissions.
    47 U.S.C. Section 332(c)(7)(B)(iv).
    http://www.lgc.state.pa.us/deskbook0..._Facilites.pdf
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  9. #9
    Super Moderator luckless pedestrian's avatar
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    I know! so no one has a Board that says "who cares" on this? I have a crazy town, I guess...

  10. #10
    Cyburbian Cardinal's avatar
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    I have seen people in several communities who have refused to acknowledge this very explicit language. It is no different than many other things some people do not like, I suppose. Wanting to rezone a property from commercial to residential because of a proposal to develop it, wanting to close off streets because ther is traffic on them, demanding that the city stop using chemicals.... There are some wacky people out there. Fortunately, the more rational people on the board have usually been the majority.
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  11. #11
    Cyburbian Otis's avatar
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    I ran into this in my town a few years ago. Fortunately the city attorney and I were able to convince the city council to stay away from the issue by explaining what the law says and what the liability of the city would be, and that we have better things to do, at the city council's request, than defend hopeless lawsuits. We ended up with an ordinance that limits their height to 80', requires co-location, and allows me to pick the color the towers will be painted.

    Color selection is important. One near Portland is an almost black green and is located adjacent to a stand of firs that are nearly as tall as the tower. Most people don't even see the tower. I had one here painted a light gray to blend with our usually overcast skies. I probably should have gone with a dark color since the first 90 feet or so of it is in a stand of spruce trees (it was apporved before the height limitation went into effect).

    By the way, speaking of churches, a lot of them like cell towers. The one I just mentioned is on church property, and the church gets about $1,200.00 per month rental. I've seen antennas on church steeples and there's one church near Salem, OR that has a truly huge cross out front that really is a cell tower.

  12. #12
    Cyburbian boiker's avatar
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    Quote Originally posted by luckless pedestrian View post
    ack - yes I know that - my point is: what do you do when your Planning Board feels otherwise - it's counterintuitive in planning to say that you can't regulated due to public health because that was the main reason why zoning was declared constitutional to begin with - I'm likely going to hang back and robotically say no, you can't regulate it like that, but does anyone else think this is a little odd?
    The federal regulation usurps local control. This is one health issue that we cannot regulate.
    Dude, I'm cheesing so hard right now.

  13. #13
    I know what lp is saying, though. It is extremely difficult for a PC or ZBA to hear very well informed citizens cite boatloads of convicning studies from Sweden (it's always Sweden, for some reason) that conclusively indicate proximity to transmission towers increases the risks for this or that cancer. It becomes even more difficult when devastating cancers are in the remonstrators families. PC or ZBA members naturally have sympathy for residents, especially against nameless, faceless mega-corporations 'from away'.

    Congress' intent however, is crustal clear: Locals! Keep yer hands off! It is incumbent on us to hammer that message home, whether they like it or not.
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  14. #14
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    The 96 telecommunications act was railroaded through congress by billion$ from the telecom co's.

    Somebody needs to start moving toward changing it. Why should the big money be able to tell everyone to just shut up?

    There is ample evidence of harm being done to humans and wildlife by the emissions - and the really mindless fact is NOBODY IS RESPONSIBLE FOR MEASURING EMISSIONS EXCEPT THE COMPANY THAT OWNS THE ANTENNA.

    HTML code:
    http://www.mycapturesystem.com/files/Cell_Phone_Poisoning_Of_America.pdf
    HTML code:
    www.fws.gov/migratorybirds/issues/towers/comtow.html

  15. #15
    Cyburbian Plus
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    Quote Originally posted by ethan View post
    HTML code:
    http://www.mycapturesystem.com/files/Cell_Phone_Poisoning_Of_America.pdf
    Thank you for this link. I've seen to it that it will be distributed prolifically.

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