2025-01-24 BBILAN Letter to Santa Barbara County Board of Supervisors
To: Santa Barbara County Board of Supervisors (“BOS”)
From: Julian Gresser, Broadband International Legal Action Network
Re: Proposed Amendments to Wireless Ordinance (including reference to SB 9)
January 20, 2025
Dear Members of the Board,
I am constituent and co-founder of the Broadband International Legal Action Network (BBILAN), a public interest legal advocacy and education organization. As a BBILAN attorney, I am currently appearing in the Federal Court for the Eastern District challenging the Tahoe Regional Planning Agency’s failure to protect the Lake Tahoe community from the hazards of wireless small and macro cell towers. (One commissioned study suggests that 120,000 people could die due to poor planning especially around evacuation during a peak summer season when 200,000 tourists visit Tahoe each day.) We have also scored a partial victory against the Los Angeles County Board of Supervisors for failing to comply with CEQA and other laws in adopting a wireless ordinance that will endanger the public and historic sites. (See: March 27, 2024 Ruling by the Los Angeles Superior Court in Fiber First Los Angeles, et al. v. Los Angeles County et al. — A Significant Advance for the Public)
We would like to bring to your attention our concerns regarding the wildfire risks associated with passing the proposed Amendments to the existing Wireless Ordinance. We ask that you vote ‘No’ or at least abstain at the February 4 hearing to approve the Wireless Ordinance Amendments. BBILAN has organized a National Coalition on Fire Safety relating to cell towers and power lines such as the Goleta Load Pocket. Here is a link to our May 20, 2024 National Webinar that can provide a valuable reference. In this letter I will address three classes of legal questions and other legal and policy concerns. My letter is intended to be helpful to the BOS.
Legal Constraints. There are three legal tropes, based on outright dis- and mis-information, promoted by the wireless telecom industry that are being used to self-disable Planning Commissions, City Councils, and Boards of Supervisors across the country.
“Our hands are tied” (in addressing cell tower wildfire risks). This is a legally false claim. See Attachment “A”—Opinion of FCC Litigation Counsel. Local control over fundamental questions of safety, for example, relating to wildfire protection, is safeguarded by the 9th and 10th Amendments to the Constitution.
“The FCC Shot Clock Rules require us to rush through permits. We simply have no time.” Again, this is legally incorrect. Applicants must comply with reasonable fire precautions incorporated into an Application Checklist. If an applicant fails to complete the Checklist elements, the shot clock is paused. If an applicant can meet its burden of proving an “unreasonable interference of service” (not simply claiming it), the applicant can use the shot clock to justify expedited review.
“We will get sued by the telecoms if we try to protect the public from cell tower and utility related wildfires.” That is possible. It has happened. Then again as indicated above, the public is increasingly empowered and able to litigate. The wiser path for the Board of Supervisors is simply to follow the law and do what it reasonably can, individually and as a regulatory body, to protect the public, before a massive fire catastrophe befalls Santa Barbara, as it now has in Los Angeles.
Legal Deficiencies in the Proposed County Wireless Ordinance Amendments
Violation of the Single Subject Rule. There is an intentional linkage being made on every page between the ordinance amendments, and the state’s passage of SB 9, which was declared unconstitutional in 2024 by the Los Angeles Superior Court in the case of City of Richmond v. Bonta. This unfortunate coupling creates the false impression that the proposed amendments will help alleviate the serious problem of affordable housing in Santa Barbara, when in fact the County Planning Commission itself has informed Safe Tech Santa Barbara (“STSB”) that the one has nothing to do with the other. Clearly then the proposed amendments need to be revised, reference to SB 9 deleted, and a statement made to rectify the false impression that the Amendments are intended to alleviate Santa Barbara’s affordable housing crisis.
Legal Commentary
Santa Barbara County adheres to the single-subject rule as mandated by the California Constitution. This rule requires that legislation and ballot initiatives address only one main issue, aiming to prevent complexity and the inclusion of unrelated provisions. Specifically, Article IV, Section 9 of the California Constitution states: “A statute shall embrace but one subject, which shall be expressed in its title.” We believe conflating SB 9 with the wireless ordinance amendments violates this rule.
This constitutional provision applies uniformly across all counties in California, including Santa Barbara County. Therefore, any legislation or ballot initiative within Santa Barbara County must comply with the single-subject rule as outlined in the state constitution.
The single-subject rule is designed to ensure transparency and simplicity in legislation, preventing the practice of “logrolling,” where unrelated issues are combined to gather broader support. By adhering to this rule, California aims to maintain clarity and focus in its legislative process.
Violation of CEQA. The BOS cannot disregard the requirements of CEQA by fiat. Had CEQA’s rigorous and coordinated planning requirements and protocols, including preparation of an Environmental Impact Report, been followed, the risks of the present Los Angeles wildfires, still uncontrolled, might have been addressed early on, and effective and coordinated leadership exercised. The BOS has the burden to justify its asserted exemption in the face of documents which STSB and BBILAN are placing in the public record pointing to the high risks (defined as Probability x Damages) of cell tower and utility caused wildfires. In any event, if called upon to do so, BBILAN will show, if litigation is necessary, that the County’s Wireless Ordinance falls within several CEQA exceptions to the asserted exemption, namely relating to cumulative effects, historic sites, and especially sensitive environmental areas.
No Finding of Consistency. There must legally be a finding of consistency with the Santa Barbara Climate Action Plan, the Santa Barbara Wildfire Protection Plan, and other regional environmental and wildfire protection plans. There has been none.
Due Process. The public hearing and notice provisions are legally inadequate and arguably violative of the federal and state constitutions.
Failure to Require Setbacks. The proposed amendments make no special provision for setbacks, even when permitting densified small cell and macro cell towers near schools, playgrounds, day care centers, and other vulnerable communities. This dangerous omission flies in the face of an increasing recognition of fire risks by some California cities like San Diego that in August 2019 adopted a wireless ordinance requiring a 300 foot setback for schools, churches, and police stations.
Civil and Human Rights of Minority and Disabled Communities. The proposed amendments disregard the especially high risks densified small cell and macro cell towers create for Santa Barbara’s minority and disabled populations, in terms of communication and transportation, especially during the chaos which can emerge during evacuations.
Collapse of the Sovereign Immunity Defense. If a massive cell tower or utility-caused wildfire occurs as a result of the adoption of the proposed ordinance amendments, the Board of Supervisors will not be able to claim that they were unaware of this clearly foreseeable risk and took reasonable precautions under its statutory duty of care. A major legal question is whether the Board of Supervisors can be held liable as an agency for such gross negligence? The law strongly favors immunity, except when the obligation is non-discretionary — in other words, ministerial.
The specific question will arise if the County Planning Commission fails to comply with the national, state, or local fire codes which may mandate that a professional electrical engineer sign off on a small cell permit application. BBILAN has already submitted testimony that at least one telecom provider is submitting tower applications containing violations of the National Electric Code, and the County’s Planning Commission is routinely approving permits to this provider without the benefit of an electrical engineer’s certification, or the preparation of a standard Short Circuit Coordination Study. This failure substantially increases the risks that a electrically-caused fire will happen. Attachment “B” provides a list of cases holding local governments liable, notwithstanding asserted immunity when ignoring a non-discretionary mandatory duty.
In any event, it is highly likely that the BOS will become enmeshed in multiple lawsuits if a massive wildfire occurs in Santa Barbara that is caused by a cell tower or some accident related to an electric utility pole such as those lining the Goleta Load Pocket. In this case the telecom companies and the electric utility will be defendants, and they will attempt to shield themselves from liability by claiming the BOS and Planning Department approved their permits and conducted all fire safety precautions as we are urging. These defendants and the plaintiffs will interplead the BOS, which will be caught in the crossfire. This contingency is today possible in the barrage of lawsuits currently being handled by the leading personal injury law firm specializing in wildfires, Panish, Shea, Ravipudi which we would seek to retain on behalf of victims in Santa Barbara. Both the wildfire disaster and the resulting legal conflicts are largely preventable.
Seizing the Opportunity for Wise and Resilient Leadership
The BOS has an opportunity to build on the lead of other communities that are taking wise precautions by adopting ordinances that protect, rather than endanger, the public from the risks of small cell and macro cell towers. Appendix “C” provides a list of these protective ordinances.
The first step is to vote “No” or abstain on February 4, and remand the amendments to the Planning Commission with instructions to comply with the laws and develop reasonable precautionary permit procedures, noted above.
A second step is to adopt the Malibu Protocol by County BOS Resolution and embed its protocols in a specific checklist for permit applicants. (BBILAN is pleased to make this available to the Planning Commission and serve as a resource for the Commission in preparing these application requirements.)
A third step is to instruct the County Planning Commission to meet with leading electrical engineers, environmental planning, and legal experts and draft a balanced ordinance that recognizes the concerns of both the telecom providers, the fiber optic providers, and experts on alternative power/energy saving systems that will provide resilient backup power, and support effective internet access and communication. In short, an integrated 21st century solution.
Santa Barbara County BOS have all the resources right in this community that are required to reach a wise, resilient, and innovative solution to the information-communication challenges before us as a community. We appreciate your thoughtful consideration.
Sincerely,
Julian Gresser
Co-Founder BBILAN