A duel between two proposed regulations on Big Island cell towers ended with both bills victorious, after the Windward Planning Commission punted them both to the County Council on Thursday.
Last week the commission heard discussion on a pair of competing measures that would change how Hawaii County issues permits to telecommunication facilities on the island.
In one corner was Bill 194, which was introduced by then-Kohala Counci-lwoman Cindy Evans. The measure would require substantially more documentation from telecommunications companies in order to receive a permit.
In the other was a draft measure introduced by the county Planning Department in September. That bill, which does not have a bill number, would loosen regulations for telecom facilities and allow towers to be erected without a permit in certain zoning districts.
County Planner Tracie Lee-Camero reiterated a presentation to the Commission Thursday summarizing the differences between the two bills, and enumerating reasons why the Planning Department considers its proposal the superior one. While Lee-Camero previously made the same presentation at the Commission’s November meeting, much of that body’s membership has been reshuffled since then.
While Bill 194 does set stricter standards for telecom companies, both bills allow towers to be built in any zoning district. Where the Planning Department took issue with Evans’ bill was its “excessive” and redundant language.
For example, a section of Bill 194 requires applicants to submit a plot plan showing all buildings and land uses within 300 feet of the proposed tower. Lee-Camero said that the bill’s creator has not provided any rationale for that requirement, and therefore the Planning Department cannot support it.
Another section of the bill requires a report by an electrical engineer confirming that an application complies with Federal Communications Commission regulations. Lee-Camero said not only is that already required by the County Code it would also putting an additional regulatory burden on county planners, who lack the technical expertise to review electrical engineer reports.
Lee-Camero added that, because a municipality cannot impose stricter radio frequency standards than the FCC, the bill might put the county in violation of federal law.
Other concerns about Bill 194 included its reliance on private consultants to determine whether an application violates any FCC standard — something Lee-Camero said could significantly increase County spending for no discernible benefit — its regulations that fall outside the scope of the zoning code and should be governed by other standards, and its ambiguous and vague language.
By comparison, Lee-Camero said the Planning Department bill still performs a similar function to Bill 194 while being more flexible. For example, while both bills impose similar setback standards — a tower must be located 120% of its own height away from any property line — the Planning bill does not require more than a dozen additional documents, such as a soil condition analysis or a statement from the state Department of Health about noise levels, as Bill 194 does.
Despite this, Evans’ bill was more popular among residents, with several testifiers urging the commission to favor Bill 194 over the alternative.
“The Big Island requires an ordinance that achieves a delicate balance, enhancing connectivity while safeguarding the aesthetics, safety and property values cherished by both residents and visitors,” said Naomi Melamed, Kapaau resident and a representative of advocacy group Safe Tech Hawaii. “Bill 194 exemplifies such a balance.”
Melamed said Bill 194 does not infringe upon federal law, but “responsibly outlines a process for measuring (electromagnetic field) emissions from towers, a task the FCC does not undertake.”
Safe Tech Hawaii founder Debra Greene said Bill 194 updates the legal definition of “cell tower” to keep up with evolving technology. Notably, she said, the new definition includes “5G small cells” — smaller-scale 5G base stations — something the Planning Department bill does not do.
“Planning’s proposed ordinance omits this, so that 5G small cells can be installed anywhere completely unregulated by the county,” Greene said.
Evans, now speaking as a citizen after leaving her Kohala council seat earlier this month, also defended her bill, saying she believes in “more documentation versus statements,” and that the bill is intended to encourage transparency for the public.
Evans concluded by recommending that the Commission vote favorably on both bills and “let the council kinda have to sort it through.”
Evidently, the Commission took that recommendation seriously, and, after a lengthy but private legal discussion, voted unanimously to pass both measures to the council with a favorable recommendation.
Email Michael Brestovansky at mbrestovansky@hawaiitribune-herald.com.t
