2024-12-02 BBILAN Public Comments on Proposed Santa Barbara County Ordinance Amendments re: CA SB 9
I am Julian Gresser, co-founder of the Broadband International Legal Action Network (BBILAN), a public interest legal action and education group advocating reasonable balance in the design and impacts of electrical wireless infrastructure, with special attention to small and macro cell towers and power lines. I submit five essential points which underline the importance to pause further consideration of the Planning Staff’s proposed Amendments to GC Sections 65852.21 and 66411.7 for a reasonable time period, as explained below.
SB 9 Violates Local Home Rule. The April 22, 2024 decision of Superior Court in City of Redondo Beach v. Bonta et al. currently on early appeal challenges the legal foundation and asserted justification of the Proposed Amendments to Santa Barbara County Ordinance, namely SB9 as enacted in 2021. The Court held that the specific provisions of SB-9 “are not reasonably related and sufficiently narrowly tailored to the explicit stated purpose of the legislation namely to ensure access to affordable housing”. For this reason the Court held it to be unconstitutional, as it violates the “home rule doctrine.” Moreover, the Court ruled that plaintiffs met the onerous burden of proving a facial challenge to the statute, namely that “the act’s provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions. (Tobe v. City of Santa Ana 1995, 9 Cal 4th 1069, 1084.)” If the Superior Court’s decision is upheld, while in the meantime the proposed Amendments are adopted by the Santa Barbara Planning Department and approved by the County Board of Supervisors, there is a serious risk of precipitating a state of legal confusion and chaos, as it is highly likely that the proposed amended Ordinance will be challenged and overturned in court, and all permits granted under it vacated and voided.
The Proposed Ordinance Amendments Violate California State Constitution, CEQA, Other State Laws, and Local Plans. The proposed Amendments offer a prime example of “tacking on and slipping in,” in this instance so-called “minor” provisions that are basically irrelevant to the purposes of SB 9, that is promoting opportunities for affordable housing. Rather, these amendments are intended to support the telecom industry’s agenda to densify small cell and macro cell towers within Santa Barbara County in residential communities under the shield of non-discretionary ministerial review. This is a far cry from advancing the important and legitimate state and local goal of creating affordable housing. This illegal over-reaching of ministerial review was successfully challenged in part in the case of Fiber First Los Angeles v. Los Angeles Board of Supervisors, where I am serving as co-counsel, and decided in March 2024 by the Superior Court. The Court held that the proposed amendments to L.A. County Code Titles 16 and 22 violated CEQA in respect to scenic highways and historical sites, and discretionary Conditional Use Permits that were being intentionally conflated with other projects appropriately covered by ministerial review. Other key contentions in that case, which will likely be cited in judicial challenges to the present proposed Ordinance Amendments, include: a) violations of constitutional due process concerning inadequate notice and hearing requirements, b) illegal delegation of statutory authority, c) a failure to ensure consistency with regional environmental plans, and d) violations of other environmental legal protections. (In the present case the proposed Amendments will likely be deemed inconsistent with the Santa Barbara General Plan, the Santa Barbara County Climate Action Plan, and other environmentally protective and public safety plans.)
The Proposed Amendments, If Adopted, will Undermine Local Resilience, Create Serious Environmental Hazards and Public Health and Safety Risks, in Particular, Electrically-Caused Wildfire Risks. The proposed Ordinance Amendments make a strong case for why the California Legislature passed CEQA in 1970 as part of a larger federal policy to encourage creative state and local experimentation, extending the basic philosophy of the National Environmental Policy Act (NEPA). A central purpose of CEQA was agency reform, to require local planning departments to take account and establish a wise and reasonable balance between economic and environmental interests. Participation by the public through hearings at an early stage in the process was deemed essential to this reform. In fact in the present case, the proposed amendments’ characterization as “minor” and the asserted exemptions from CEQA confirm that the basic intention is to mislead the Board of Supervisors and the public. The Santa Barbara Planning Department has the burden of proof to justify its asserted CEQA exemptions. These exceptions do not occur automatically. Even the Telecommunications Act of 1996, the sword of the telecommunications industry, does not prevent state and local governments from informing themselves and their communities by conducting reasonable environmental reviews and assessments of high concern to local communities. Local communities’ hands are definitely not tied by federal preemption.
There is already a voluminous scientific record of the serious health and environmental risks of piecemeal installations of densified small cell and macro cell towers. However, one critical area that has largely escaped local government attention is the risk of electrical wildfires caused by small and macro cell towers and power lines. We have been informed by knowledgeable sources that this subject is “not even on the radar” of the local Santa Barbara Fire Department. Moreover, there is evidence that at least one telecom company is receiving cell tower permits which contain designs that are in open violation of the National Electrical Code and local fire safety codes. Given the presence of the 70-mile Goleta Load Pocket, and the surrounding Los Padres National Forest, there is an extremely high risk (defined as Risk = Probability x Damages) of an electrically-caused wildfire in Santa Barbara County within the next few years. It is only a matter of time. In the present instance it does not appear that the Santa Barbara Planning Department has conducted any assessment of the increased probability and damages of an electrically-caused wildfire implicated with the accelerating deployment of small and macro-cell towers planned by the telecom companies, to be authorized by the proposed amendments.Minority Communities Are Especially at Risk. It is deeply and tragically ironic that the Staff of the Planning Department is manipulating the legitimate and urgent need for affordable housing, that will especially benefit economically disadvantaged and minority communities, as a cover to justify the proliferation and densification of small and macro cell towers that will place these very communities in harm’s way. Attachment “A” documents the special risk factors related to notification, communication, evacuation, transportation, and other survival issues faced by economically disadvantaged, minority, and disabled communities in the Los Angeles area. Similar conditions exist in Santa Barbara County.
The Planning Department Must Assess Already Viable Local Alternatives. The Planning Department Staff’s attempt to rush through the over-reliance on cell towers proposed by the Ordinance amendments is made more egregious by the existence of an already balanced alternative—Intelligent Solar Microgrids (ISM)—currently being implemented by a local Santa Barbara company, Clean Coalition, with deep domain expertise and experience in this frontier renewable energy field. The company’s website describes the large number of successful installations of ISMs, including the Santa Barbara Unified School District. The Staff’s proposed amendments must not be adopted until the Planning Department prepares a feasibility study of the benefits and costs of encouraging the wider adoption of this innovative technology.
Conclusion
For the five reasons cited, the proposed Ordinance amendments should be tabled, at least until the ruling of the Appeals Court in the case of City of Redondo Beach v. Bonta et al. In any event, the Planning Department should be mandated to comply with CEQA and the other state statutes and local plans necessitating wise and balanced electrical infrastructure. It is possible to meet the urgent need for affordable housing in a far safer and more balanced way, especially as well-proven viable alternatives such as Intelligent Solar Microgrids offer immediate cost effective solutions.
Respectfully submitted,
Julian Gresser, Attorney at Law
National Coalition For Electrical Wildfire Safety
Attachment “A”—Special Risks to Minority and Disabled Communities of Electrically Caused Fires
ChatGPT Inquiry:
Are there special risks that minority, disabled, and economically disadvantaged populations face regarding notice, communication, evacuation, and other survival issues during a wildfire in Los Angeles County which already has an extremely high Probability over the next 3 years and estimated damages of over $7 billion in light of prior telecom related fires? Please be specific with examples of the Risk Profile for these vulnerable populations.
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ChatGPT Reply:
Yes, minority, disabled, and economically disadvantaged populations face significant and specific risks during wildfires in Los Angeles County. These risks are exacerbated by factors related to notice, communication, evacuation, and other survival issues, especially considering the high probability of wildfires and the potential for severe damages in the area.
1. Notice and Communication Risks
Limited Access to Technology: Economically disadvantaged populations often have limited access to technology, such as smartphones, internet, and advanced alert systems (like apps or notifications). This means they might not receive timely warnings or updates about a wildfire.
Language Barriers: Minority populations, especially those who speak languages other than English, may not receive alerts in their primary language. Emergency communications may be less effective for non-English speakers, leading to delays in receiving critical information.
Disability Barriers: Disabled individuals, particularly those with hearing or visual impairments, might struggle to receive and understand emergency alerts. For instance, deaf individuals might miss out on audio alerts, while visually impaired individuals may have difficulty accessing visual information.
2. Evacuation Challenges
Transportation Barriers: Economically disadvantaged populations may lack access to private transportation, making it harder to evacuate quickly. Public transportation options might be limited during a crisis, especially in rural or underserved areas of Los Angeles County.
Mobility Issues: Disabled individuals, especially those with physical disabilities, face significant challenges in evacuating. Wheelchair users, for example, may have difficulty navigating through rough terrain or debris. Additionally, those who rely on specialized medical equipment or home healthcare services might find it impossible to leave without assistance.
Overcrowded Housing: Economically disadvantaged populations often live in overcrowded housing conditions. In an emergency, it can be challenging to evacuate a large number of people from a single residence, especially if some residents require additional assistance.
3. Survival and Recovery Risks
Shelter Access: Economically disadvantaged individuals may have limited access to safe and suitable shelter options during and after a wildfire. Public shelters might not accommodate the needs of disabled individuals, such as those requiring medical care or specific accessibility features.
Health and Safety Concerns: Minority and economically disadvantaged populations are more likely to suffer from pre-existing health conditions, which can be exacerbated by smoke inhalation or other wildfire-related hazards. Additionally, these populations may have less access to healthcare, both during and after the event.
Information Gaps: Minority and economically disadvantaged populations may not be aware of available resources for recovery, such as FEMA assistance, insurance claims, or community support programs. This lack of information can delay their recovery process and deepen the long-term impact of the disaster.
4. Case Examples
2018 Woolsey Fire: During the Woolsey Fire, reports indicated that many residents in lower-income areas did not receive timely evacuation notices. The reliance on cell phone alerts, which may not reach people without smartphones, left many vulnerable.
2017 Thomas Fire: In the Thomas Fire, language barriers were a significant issue. Many Spanish-speaking residents did not receive emergency alerts in their language, leading to confusion and delays in evacuation.
2019 Saddle Ridge Fire: Disabled individuals reported significant challenges in evacuating from the Saddle Ridge Fire due to inadequate transportation options and shelters that were not fully accessible.
5. Telecom-Related Risks
Communication Infrastructure Vulnerabilities: Previous wildfires in California, including those in Los Angeles County, have damaged telecommunications infrastructure, leading to power outages and disrupted communication channels. This disruption disproportionately affects vulnerable populations who rely on consistent communication to receive alerts and coordinate evacuations.
Emergency Alert System Failures: Past telecom-related fires have exposed weaknesses in the emergency alert system. For example, cell towers that were damaged or destroyed during wildfires failed to deliver critical alerts, leaving some residents uninformed about evacuation orders.
Conclusion
To mitigate these risks, Los Angeles County needs to implement targeted strategies for vulnerable populations, including multilingual communication, accessible evacuation plans, and tailored support services during and after wildfires. Proactive planning and community engagement are crucial to ensure that all residents, particularly the most vulnerable, can safely navigate the challenges posed by wildfires.
Legal Rights and Remedies
As you have explained, minority, disabled, and economically disadvantaged communities are especially vulnerable to un-contained electrical fires. These communities are the last to receive notice of cell tower installations and their voices the least to be heard. Often they have no means to escape, hospital attention is poor or non-existent, and they cannot afford insurance coverage. They bear all the risks for activities that generate huge profits for telecom executives and their shareholders, investors., and stakeholders. Telecom companies are even asserting that as public utilities they are exempt from the National Electrical Code and local fire safety codes. In some instances they are fully aware of the fire risks they are creating. The present situation raises profound questions of social justice and fundamental human rights.
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ChatGPT Inquiry:
What are the rights and remedies of minority, disabled, and economically disadvantaged communities to protect themselves from these risks and secure compensation when they are injured under federal, state and local, and international human rights laws?
ChatGPT Reply:
The discovery of the rights and remedies available to minority, disabled, and economically disadvantaged communities regarding the risks posed by telecom infrastructure and electrical fires raises critical social justice and human rights concerns. The legal framework addressing these risks is complex and spans multiple layers of law—federal, state, local, and even international human rights statutes.
Federal Legal Protections:
National Electrical Code (NEC) Compliance: While some telecom companies argue exemption from the NEC, federal and state fire safety laws typically demand compliance from all entities. Community members can advocate for strict enforcement of these codes through local and state regulatory agencies.
Remedy: Filing complaints with regulatory agencies such as the Federal Communications Commission (FCC) or suing for non-compliance under state fire safety and utility regulations may offer legal remedies.
Environmental Justice Laws: Under the Environmental Protection Agency (EPA) and the National Environmental Policy Act (NEPA), federal agencies are required to consider environmental justice impacts. These can apply to the placement of cell towers and other telecom infrastructure.
Remedy: Communities can file for environmental reviews or seek injunctions to halt the construction of infrastructure that disproportionately affects vulnerable populations.
Americans with Disabilities Act (ADA): The ADA provides protections for disabled individuals. If telecom installations or unsafe infrastructure disproportionately impact disabled persons, they may have grounds for legal action under this act.
Remedy: Filing claims or lawsuits under the ADA for failure to provide a safe environment.
Civil Rights Act (Title VI): If evidence suggests that the placement of telecom infrastructure disproportionately affects minority communities, Title VI of the Civil Rights Act could provide grounds for action based on discrimination.
Remedy: Filing a discrimination claim with the Department of Justice (DOJ) or launching a class-action lawsuit.
State and Local Protections:
State Fire Codes: Most states and municipalities have fire safety regulations. Vulnerable communities can use state laws to challenge non-compliant telecom infrastructure that increases fire risk.
Remedy: Reporting violations to local fire safety regulators or seeking legal remedies via state courts for negligence in fire prevention.
Zoning and Land Use Laws: Many local governments control where telecom companies can place cell towers and other infrastructure through zoning regulations. Local communities can engage in public hearings and utilize advocacy to influence these decisions.
Remedy: Challenging zoning approvals or pushing for local ordinances that prioritize community safety in tower placement.
Inverse Condemnation: In some states, if telecom infrastructure causes damage or decreases property values, communities can claim inverse condemnation, arguing the infrastructure has taken property value without compensation.
Remedy: Filing a lawsuit seeking compensation for the loss in property value or damages caused by fires.
International Human Rights Protections:
Right to a Safe Environment: International human rights law, including the International Covenant on Economic, Social, and Cultural Rights (ICESCR), recognizes the right to a safe and healthy environment. Communities may seek to invoke international treaties or agreements.
Remedy: Filing complaints with international human rights bodies such as the UN Human Rights Committee, invoking human rights violations based on environmental hazards and lack of protection.
Principles of Environmental Justice (UN): International bodies increasingly recognize the right to environmental justice, which includes protection from environmental harms caused by profit-driven entities. Communities can advocate on these grounds.
Remedy: Working with international NGOs to file petitions under the UN’s environmental justice initiatives or seeking interventions through international advocacy.
Collective Action:
Class Action Lawsuits: One of the most effective means of seeking redress may be to file a class-action lawsuit on behalf of affected communities. Such lawsuits can seek compensation for damages, mandate safety compliance, and push for systemic changes.
Remedy: Group legal actions targeting telecom companies for negligence or discrimination can be filed in state or federal courts.
Advocacy and Lobbying: Communities can also mobilize through grassroots advocacy, lobbying for changes to laws and regulations governing the placement and safety of telecom infrastructure.
Remedy: Mobilizing public support for legislative changes, such as stricter telecom regulations or amendments to public utility laws that exempt companies from safety compliance.
Conclusion:
The rights and remedies available to vulnerable communities facing risks from telecom infrastructure are diverse but hinge on proactive legal strategies and advocacy. Remedies include using existing fire and safety codes, invoking environmental justice, leveraging civil rights laws, and seeking international human rights protections. Coordinated legal action, combined with advocacy for policy reforms, could provide the most robust protection and compensation pathways for affected communities.