A controversial proposal for a downtown 5G tower has prompted pushback, and now, a potential change to borough code.
The 115-foot cell tower would be built by AT&T, on their existing property next to the Haines School. That’s part of the problem, as some residents who believe 5G waves can potentially cause cancer say the effects could be particularly harmful in children.
As of last week, it looked like concerned residents would not have much recourse, as acting lands director Donna Lambert said cell towers were a “use-by-right” in commercial zones – in other words, a normal allowed activity – subject only to approval from the borough manager. Lambert said that AT&T submitted their land-use permit application last Thursday.
However, the CVN reported at the time that communications towers in commercial zones were categorized elsewhere in borough code as requiring conditional use – a far more restrictive permitting process, with stricter standards and review by the planning commission, including public hearings. It was unclear why there were two different permitting processes listed for what appeared to be the same type of construction.
Last Thursday, Lambert confirmed to the planning commission that the duplicate definitions in code were an error, and said she had notified AT&T they would instead have to re-file for a conditional use permit. “I [felt] we should go with the definition that is stricter because it is a hot button issue for many in the community and it would serve the public to have a more public process,” said Lambert.
Going forward, it looks like the borough will adopt the stricter regulations of the two currently on the books. Interim borough manager Alekka Fullerton said she will be recommending to the assembly making all communications towers require conditional use permits going forward.
If that change sticks, new cell towers will be conditional use in most zones, including all commercial and residential zones except for single-residential, where they are not allowed at all. This will open the door to more public debate, with cell-tower proposals already planned or under consideration at Jones Point and Lutak, on top of the downtown tower.
That puts a lot of responsibility on planning commissioners, who are responsible for approving conditional use. For approval, commissioners apply the same set of standards to every conditional use application. One of these standards is that the conditional use “will not be harmful to the public safety, health or welfare,” which is the main grounds on which residents seek to block the new towers.
How the planning commission might go about evaluating that is already a challenge. Whether they have the authority to do so is another question. Back at a February planning commission meeting, John Easton, a representative of telecom company GCI, told the borough that denying towers on health grounds would violate federal law. “The FCC has complete control over regulating communications equipment,” Easton said, going on to compare telecommunications to pharmaceuticals. “The Haines Borough cannot decide… that ibuprofen might be not safe enough for your community. It’s an area that’s totally superseded by the federal government.”
Federal law says that state and local governments may not “prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” That likely takes a borough cell-tower ban off the table, though other municipalities in the nation have passed smaller regulatory measures like setbacks from schools.