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Planning Commission will look at proposed cell tower ordinance

SAN MARCOS — San Marcos has proposed new regulations it says would discourage cell and communications towers from popping up near homes and farmland, but local activists say the rules don’t go far enough.

The city’s Planning Commission will discuss the proposed telecommunications facilities ordinance at its June 30 meeting.

The debate over the proliferation of cell towers in the city heated up last fall when a homeowner in the San Elijo Hills community sought approval for a second, 35-foot-tall microwave tower on his property. Neighbors protested the proposal, which prompted the City Council to direct staff to draft the proposed regulations.

The city has hosted several workshops since January, using the feedback to fine-tune the rules.

The proposed rules encourage wireless applications to locate new antennas on existing towers, rather than build new ones, and discourages new towers in residential, ridgeline, environmentally sensitive and agricultural land.

A wireless company seeking to erect a tower in an area the city discourages would have to provide technical proof that the location is necessary to bridge a significant gap in coverage and is the only location possible to do so.

Opponents, however, said the proposal falls short in two significant areas — it doesn’t set a minimum distance between cell towers and homes and doesn’t mandate wireless companies to install newer, smaller, less intrusive tower technology.

John Signorino, one of the neighbors spearheading the opposition, said homeowners would “sleep better at night” if the city required a 1,000 foot buffer between towers and homes.

“If you are going to use the old technology, which is intrusive and dangerous, then have reasonable distance requirements from homes or schools,” Signorino said. “This ordinance doesn’t do either of these things.”

A wireless law expert who has helped the city craft the ordinance said the reason that cities can’t adopt such restrictions is because federal law doesn’t allow it.

The Telecommunications Act of 1996 specifically says that a municipality can’t prohibit or create provisions that would effectively serve as a ban. The 9th Circuit Court of Appeals affirmed this provision in a later case, when it ruled that a local government would be violating the law if it did not allow a wireless company to close a significant coverage gap.

Federal law also prohibits cities from prohibiting certain cell tower technologies outright.

Cities can require the companies to provide a “high level of proof” to justify placing the towers in a residential area, and regulate the aesthetic features, said Jonathan Kramer, the legal expert who has helped several cities — including San Marcos — craft their wireless tower guidelines.

San Marcos law does require wireless companies to camouflage and disguise towers to the furthest extent possible, as well as encourage towers to be placed on city right-of-way before other locations are explored.

“I can tell you that our ordinance in its current draft form is on the safe side of the line of not violating the law, but that line is not very far away,” Kramer said. “We know from court decisions how far we can go. So we are staying within the bounds of the current level of the law.”