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Council Takes No Action on Small Cell Tower Zoning Regulation

October 31, 2018

The Montgomery County Council decided to punt the controversial proposal on zoning regulations that would have decided where small cell towers could be placed throughout the County.

   At Tuesday’s regular meeting, the Council deferred action on Zoning Text Amendment (ZTA) 18-11, Telecommunications Towers – Approval Standards.  The original goal of this zoning measure was to ensure access to robust wireless broadband services while regulating the visual impacts of its antennas, according to a statement from Council President Hans Riemer, who was a supporter of the zoning measure.

   There are over 45 of these small cell antennas proposed in the Germantown area, many in the Waters Landing neighborhood.

   In the last few years, Montgomery County has received a high number of applications to deploy small cell antennas in residential neighborhoods as well as commercial areas around the County. Federal law is clear that Montgomery County cannot pass zoning laws that would have the effect of prohibiting service throughout the County. Therefore, the proposed ZTA was intended to allow providers to provide service while protecting the character of both our residential neighborhoods and commercial areas by regulating how and where these antennas can be placed, and how they should be screened or camouflaged.

   The issue, however, has been a contentious one with many residents coming to meetings and hearing to voice their opposition to the idea of the small cell antennas in their neighborhoods.

   “We need to support the future of wireless while balancing the impact it will have on our communities,” said Riemer in a statement released Tuesday. “The zoning measure that I supported, ZTA 18-11, accomplished both these goals. Over the course of the last few months, this Council has made significant progress on this issue; however, several changes proposed by my colleagues would have undermined the central purpose of the zoning

measure. In my view, our County needs to embrace wireless infrastructure, just as we embrace water, power, and transportation infrastructure.”

   County Executive Ike Leggett said he was “very disappointed” in the Council’s action to withdraw the bill from consideration. “I applaud Council President Hans Riemer for his leadership to approve legislation to protect County residents from State and federal efforts to preempt our ability to regulate the placement of small cell towers in our neighborhoods. I appreciate all the feedback and concerns we have heard from County residents,” said a statement from Leggett.

   “This bill, ZTA 18-11,” said Leggett, “was pulled because of a series of unacceptable amendments which would have made the measure unworkable and potentially undermined our legal standing on litigation that is certain to follow.” He called amendments proposed by Councilmember Tom Hucker (District 5- Silver Spring) “questionable” saying the amendments would make the bill “too costly, too time-consuming and too confusing — basically unworkable. It would further erode confidence in the ability of our local ordinance designed to preclude preemption.”

   “We have failed to adequately protect our communities and neighborhoods,” continued Leggett. “We now run a much greater risk of the State – and federal government – preempting any local say on the terms and conditions of small cell tower placement in our neighborhoods. There was a bill in Annapolis last year – highly likely to reappear in the coming session -- that would commandeer our rights-of-way for almost no payment and throw the financial burden on our taxpayers.  Even worse, under this State bill, we will not have a say over setbacks or aesthetics. The industry will be allowed to deploy on any pole in the County's right-of-way no matter how close it is to someone's home.”

   Riemer said that the Council has worked on this bill for two years.  “This is about whether your devices will be able to do what they are designed to do in the future. The industry is running out of capacity on wireless networks in the County due to growing, and they need to place antennas at the street level. The industry is also working on new technology, 5g that will be way faster that 4g, but also it requires antennas at the street level, rather than on tall towers.”

   “We successfully established rules for these antennas in our commercial areas this year, which was a great step forward,” said Reimer. “We need to address them for residential areas as well. We had a bill before the Council, prepared by the County Executive, and championed by Councilmember Craig Rice and me, to accomplish that goal.” He said the changes to the bill sought to obstruct the deployment of the technology in the future.

   “Rather than approve a bad bill that would set us back and invite State and Federal pre-emption, I pulled the legislation,” said Reimer, “I look forward to taking some additional time to work on it with the new County Council, and I hope we’ll get it right next time around.”

   As a result of Tuesday’s non-action on ZTA 18-11, the next County Council, which will be seated on Dec. 3 after next Tuesday’s election. This Council is prevented from taking any further action. Maryland State law prevents any county council from enacting zoning or land use regulations after Oct. 31 in an election year.

 

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