Without home rule, business alone will dictate technology’s future

New York is a home rule state. Of course, when it comes to planning, municipalities must obey the federal and state constitutions but they are allowed to adopt their own comprehensive plans and their own zoning codes, and to appoint boards to interpret those codes.

This is a system that allows communities to shape themselves as they see fit, to meet the needs and desires of their residents now and into the future.

A brief perusal of our pages over the last several months shows that citizens in Altamont, for example, are very much concerned with both the aesthetics and potential health effects of a proposed cell tower in the village. Those same sorts of concerns were raised earlier in other towns we cover.

In September, the Federal Communications Commission issued an order to accelerate “wireless broadband deployment,” paving the way for the buildout of fifth-generation wireless systems, known as 5G, that proponents say will be 20 times faster than the current 4G networks.

“To meet rapidly increasing demand for wireless services and prepare our national infrastructure for 5G, providers must deploy infrastructure at significantly more locations using new, small cell facilities,” the order says.

The FCC order, it says, “is part of a national strategy to promote the timely buildout of this new infrastructure across the country by eliminating regulatory impediments that unnecessarily add delays and costs to bringing advanced wireless services to the public.”

City dwellers have already seen these “small cell facilities” — roughly akin to utility poles in size — pop up without warning in their yards, generally along the municipality’s right-of-way. The FCC order applies to poles up to 50 feet tall but many are being mounted on utility poles. We published a picture last week of one such pole in a park on Albany’s Berkshire Boulevard.

Residents who have had these small cell facilities unexpectedly placed in their yards are understandably concerned about the effects such poles will have on their property value and perhaps even their health.

We share the consternation and frustration expressed earlier this month by New Scotland Councilman William Hennessy. “I think it’s just ridiculous that the FCC has gone and taken the planning and zoning out of the hands of the local government — it’s tying our hands. It’s just a terrible thing that they’re doing to us. And this is going to come back to roost, whether it will be in 10 years or 20 years, I don’t know.”

As our New Scotland reporter, Sean Mulkerrin, detailed in a front-page story last week, the New Scotland supervisor, Douglas LaGrange, thinks it could be a decade before 5G technology comes to the rural town.

Three separate lawsuits have been filed, involving 24 municipalities, against the FCC’s order: the lead plaintiffs are San José and Huntington Beach in California, and Seattle in Washington.

Each suit makes the same argument — that the FCC quells the municipality’s ability to manage how phone companies use public property.

San José has correctly argued that the FCC order will force taxpayers to subsidize industry access to publicly-owned infrastructure without obligation to serve the millions of Americans in rural and low-income communities.

We hope these suits — all of them filed in the Ninth Circuit Court of Appeals — are successful.

But, in the meantime, we commend the town of New Scotland for drafting legislation — an update to its 2004 telecommunications law — to minimize the harm that could come to the town and we strenuously urge other municipalities to do the same.

Time is of the essence. The FCC is allowing municipalities only 180 days from when the order was published — Oct. 15, 2018 — to come up with guidelines.

Crystal Peck, the attorney for New Scotland’s planning and zoning boards, was wise to look at other municipalities’ legislation on the matter and to draft changes for New Scotland officials to adopt. A public hearing is scheduled for March 13, giving the town board just enough time to vote on the changes before the April 19 deadline.

“Cell companies,” Peck said, considered the time it took to gain approval from municipalities for the deployment of their small cell technology, “a very long and prohibitive process.”

The FCC order limits the amount of time a municipality will have to review an application for small cell wireless facilities from 60 to 90 days, depending on the size.

The proposal drafted by Peck includes such measures as limiting the size of the equipment, concealing equipment within the pole if feasible, or coloring it to match the pole.

Perhaps a design could be developed that combines a streetlight, which residents are used to seeing in their properties’ rights-of-ways and, further, which are useful for safety, with the 5G facilities, which would make them less obtrusive.

But even if the facilities are disguised, as street lamps, or camouflaged through aesthetic guidelines like the ones New Scotland is working on, the fundamental principle of home rule is being undermined. The industries that will benefit from introducing these new technologies will have not obligations to meet local needs or expectations.

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