TALLAHASSEE – The Leon County Board of Commissioners is holding its only public hearing Dec. 12 at 6 p.m. on a proposed local ordinance addressing legislation recently signed into law by the governor which potentially threatens Leon County’s iconic canopy roads.
According to Assistant Leon County Attorney Jessica Icerman, the Advanced Wireless Infrastructure Deployment Act (“AWIDA”) is state legislation supporting the deployment of 5G cellular technology, which, among other things, will pilot self-driving cars. AWIDA overrules local authority and ordinances protecting Tallahassee and Leon County’s cherished canopy roads and trees.
AWIDA was overwhelmingly approved by the Florida Legislature and was signed into law by Governor Rick Scott on June 23. See the bill here: https://www.flsenate.gov/Committees/BillSummaries/2017/html/1561
Icerman, speaking before the Canopy Roads Citizen Committee (CRCC) on Nov. 15, explained the consequences of that legislation. She said a small cell facility has a range of about 1000 feet, which means utility poles, spaced approximately every 1000 feet in the county’s right-of-ways (ROWs) could potentially line the roads where the wireless companies install the new technology.
She said some small cell facilities go on existing street poles or attach to the side. They can attach to a new utility pole to hold antennas if there is not an existing pole to meet their needs.
Icerman was asked, in areas where utility lines snake in and out of canopy road protection zones, if the small cell facilities could just go right down the roadway at their required interval.
“That’s right,” Icerman said. “If it was up to us we would completely ban them from the canopy roads, but we cannot do that.”
According to notes for the upcoming public hearing, “In accordance with AWIDA, small wireless facilities must be allowed to collocate on poles located on canopy roads since regulations relating to communication service providers must be generally nondiscriminatory and competitively neutral.
Additionally, local regulations may not prohibit or have the effect of prohibiting communications services. As a result of these restrictions on what and how a local government may regulate, the county cannot enact a blanket prohibition on communications facilities, specifically small wireless facilities, from the canopy roads protection zones. Any attempted blanket prohibition of communications facilities on canopy roads would likely lead to litigation with the industry.”
Icerman told the CRCC, even though this legislation particularly affects canopy roads. “(Approval for small cell facilities) will not go to CRCC, it will just go to the (county’s) Development Review Committee (DRC), where we must approve or deny an application within 60 days. If the county does not respond, it is automatically approved.”
She explained that even with DRC, there is very little chance of denying a permit.
Icerman, said, “Local governments have to allow these (small cell facilities) under most circumstances. You can’t say no unless it is for a safety purpose.”
CRCC Chair Pierce Withers asked, “So cell companies can remove trees without coming to us?”
“With respect to tree removal,” Icerman said, “under the Leon County ordinance, the cell company would have to mitigate, just like anyone else would.”
The proposed ordinance requires tree removals within the ROW to comply with the Environmental Management Act (EMA) although a separate Environmental Management Permit is not required. So new utility poles for small cell facilities would have to comply with the same regulations as any one else installing a utility pole in Leon County, regarding tree removal.
Icerman expects the infrastructure to initially be concentrated in urban areas.
Leon County Commissioner Mary Ann Lindley, who also serves on CRCC agrees, “This could be a challenge to the canopy roads, but the infrastructure will start in the urban areas. It will be a while down the road before it impacts the canopy roads.”
Beyond the canopy roads, the proposed ordinance addresses the AWIDAs potential impact on neighborhoods and areas with underground facilities.
According to the ordinance, small wireless facilities are prohibited in locations subject to homeowners’ association restrictions unless those restrictions permit the facility. Small wireless facilities must also comply with nondiscriminatory undergrounding requirements that prohibit above ground structures within the ROW.
The county’s proposed ordinance is one of the first in the state to implement AWIDA and is expected to be a model for other local governments. The county attorney staff believes the proposed ordinance complies with the AWIDA while also imposing reasonable location context, color, stealth, and concealment requirements.
Tallahassee also has a proposed ordinance regulating communications facilities that is anticipated to go before the city commissioners for consideration at a public hearing in January or February 2018.
Icerman said there are more potential problems down the road. She said federal law is in the works to further pre-empt local government. “This is an area where I think the cell tower industry has gotten a hold of the legislators and held over their heads that we need 5G, that that’s what’s gonna build our economy.”
“(Legislators) are getting on board with them and we’re the ones left paying the bill,” she said.