Delaware Online ran the following story linked below, byline of Emily Lytle.
Key Point: “if the town and its residents have shown anything over the past year, and earlier, it’s that they’re not afraid to take a stand for Dewey Beach and its landscape.”
Coastal Stewards will continue to help Dewey Beach navigate this difficult process.
Five 5G poles on the dunes in Dewey Beach will be moved, according to a settlement reached by Verizon and Dewey residents Alex Pires, Diane Cooley and John Snow, who filed a class-action lawsuit against the telecom in June. Pires said Dec. 2 that…
— Read on www.capegazette.com/article/agreement-reached-5g-pole-lawsuit-dewey-beach/231741
“No Notice” Pattern Repeated Multiple Times in Past Six months by Verizon
In yet another town permit violation and in what also appears to be a state permit violation, on November 8, 2021 Verizon contractors surprised residents and town officials of Dewey Beach by installing pole top hardware, this time 4G instead of 5g equipment at Read Ave and RT 1, on a pole it had installed prior without a town permit.
Verizon’s latest installation met their same pattern of prior installs, including all their beach pole installations: work without a town permit, work during the offseason when it would be less noticed, blocking off lanes of traffic, and installing equipment above the town’s height limit, and with other nearby existing alternatives available. DelDOT confirmed that Verizon was required to notify the town prior to installation, and there may be more significant violations given the pole permit may have expired 18 months ago.
The DelDOT permit for the pole was issued in June of 2019, including specifications for the new height of nearly 50 feet and for the 4G antenna. But according to DelDOT, the issuing agency, the construction on a 5G small cell pole is to be done within one year of the issuance date. According to DelDOT’s public information office, telecoms can, of course, do maintenance work on poles without obtaining another permit. However, Verizon’s addition of a 4G antenna involved heavy equipment and construction to install a whole new antenna where one had not been installed before the permit expired, and on neither occasion did Verizon obtain a Town permit.
Why it matters
It’s the latest in the ongoing saga of Verizon placing poles and technology with little to no communication, and in violation of town municipal and federal laws. The town requires permits for any construction in floodplain areas, as does a federal environmental rule, the National Environmental Policy Act (NEPA).
And as shown in this photo, plenty of co-location options on poles in the median on structures above 50′ already exist on state light posts and transmission towers, as is commonly done in other areas. There was no clear need for a new pole raise to 50′. Co-location is required by the legislation HR 189.
When questioned by the Dewey Town Manager, the Verizon contractors said they were acting under the authority of the DelDOT permit. The State had issued a permit for the pole almost two and a half (2 ½) years ago so the Verizon contractor may have been referring to that permit. Why it was just added now is unclear, as 4G capability has existed in town for years out of sight on the water towers, as explained above
Separate from the eleven poles Verizon installed in late 2020 without town notice, including four on the beachfront in Dewey, this unannounced construction marks at least the third time in the past six months Verizon has ignored the need for town permits, according to the Dewey Beach town manager Bill Zolper in an email November 11. Zolper also said that DelDOT has told the town it is not their responsibility to inform the town and the telecom is supposed to inform the town. The other two locations where work has been done recently without notifying the town are Rt. 1 and New Orleans Street, and Rt. 1 and Dickinson Street.
It’s yet another signal that the telecom giant’s strategy has been to ignore town regulations, need for permits, failing to comply with longstanding environmental rules which apply to all pole installations including NEPA mentioned above and NHPA which protects areas of significant historical importance over 50 years old such as the Dewey Lifesaving station land.
Corporate cost savings at the expense of seascape
The new equipment installed appears to be the same 4G antenna technology that Verizon already has installed on the nearby county water tower, which is labeled Dewey Beach, on which Verizon and other telecoms pay to lease space.
At one point, the purpose of the construction was said to replace existing equipment on an existing pole near Read Avenue, overlooking the Little Store in the center of town. [Photo} But clearly it was a new installation of what appears to be a 4G antenna, raising the question of why Verizon is installing redundant equipment, the answer may be that they can get an entire pole in Dewey for far less as indicated below.
Verizon and other telecommunication companies have for years leased space on the water tower for their cellular antennae. But the new Verizon poles popping up in town without notice require Verizon to pay the state of Delaware a $100 fee for a 10-year lease to the State agency DelDOT. In addition to the revenue, the existing water tower has provided a more ideal, unobtrusive location for the telecom antennas. It is not known what other telecoms will follow Verizon’s move.
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Keeping the 5G poles and infrastructure in check and compliant with evolving local laws and design standards is critically important. But just as important is ensuring that those rules keep in mind the broader goals of 5G – enhanced communication where needed – without compromising Dewey Beach’s seaside beauty, fragile dune environment and historical wonders.
To that end, board members of Coastal Stewards Delaware spoke at the Oct. 21 Dewey Beach Planning and Zoning Commission meeting to share best practices that we’ve researched using our skills in policy, education and technology, as the commission discussed proposed changes to the small cell ordinance. Those best practices were focused on the need for strategy, leveraging community resources and emerging case law around FCC policy and federal rules protecting environmentally sensitive and historic areas.
Board Member Maryam Tabrizi, a presence in Dewey Beach for two decades and a property owner since 2017, emphasized five specific points as she spoke during the public comment period.
The ordinance needs to address two federal laws designed to protect the environment and historic sites. The FCC had relaxed some regulatory requirements in for 5G construction that have conflicted with the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA). But recent rulings, including one in the D.C. Court of Appeals and another on tribal lands, suggest the FCC’s approach is unlawful. The FCC has since said that every wireless telecommunications facility (WTF) must undergo NEPA review.
Citing the 5G pole at the Dewey Beach Lifesaving Station, Tabrizi said that “Preservation of the history and the environmental beauty of this little beach town should be a priority. We, as Dewey Beach, are extremely rich in history, and it should be honored and preserved.”
Think strategically. Tabrizi and Board Member Rick Meyer stressed the importance of strategy also. Instead of letting wireless companies plant poles wherever they want, why aren’t we looking at what the community actually needs in terms of wireless coverage? And why are they needed on the beachfront, which is only heavily used three months of the year and mostly already has 4G coverage?
“If poles need to be placed for coverage needs, we need to address the aesthetic concerns, and not install the cheapest options available. If the state is willing to give us $375,000 to move poles if we don’t like them, why not put money upfront to address doing it right with the right placement and aesthetics/design so they don’t have to be moved?” Tabrizi asked.
Introduce the concept of BATEA to the ordinance. The concept of Best Available Technology Economically Achievable (BATEA) already exists in many federal codes and global standards. Wireless carriers executing at scale are likely to go as cheap as possible. That generally has a big negative impact on aesthetics, and codifying the concept into the ordinance could only help viewsheds that have already been impaired with cheap, bulky, top-heavy equipment.
Let’s get this right so we’re not a continued example of “what not to do.” With a pending lawsuit, a state award of $375,000, and extensive media coverage, we have an opportunity to develop a model plan for other communities.
“We have the opportunity for Dewey Beach to be put on the map for taking the time and resources to be a model and do this right,” Tabrizi said.
Draw on the community’s resources. As Coastal Stewards we have a lot of knowledgeable people willing to do research and help guide the town of Dewey Beach on the 5G ordinance. We are willing to help the commissioners and committee and give guidance to them.
Coastal Stewards Delaware has formally brought to the attention of Delaware’s Attorney General, concerns about telecoms possibly illegally constructing new 5G pole infrastructure in the Seashore State Park without public disclosure and without oversight. Already nine poles are up (see here) with permits along the coast, but Coastal Stewards has identified another 10 locations where telecom equipment has been placed on State Park property which the state claims no information or permits exist.
On October 8th, Coastal Stewards Delaware sent an appeal to the state Attorney General, Kathy Jennings, regarding the outcome of a FOIA (Freedom of Information Act) request made in September. Our FOIA request asked for permits or permit applications for 5G pole utility work along Coastal Highway/Route 1 from Dewey Beach south through the Delaware Seashore State Park.
We sent the FOIA request to the Delaware Department of Transportation (DelDOT) in mid-September because we had noticed not only extensive markings in dozens of locations along the highway, but also some equipment that had been installed in 10 total locations (in addition to the nine already existing) – mounted equipment with optical cables spiced to that location, concrete pads, plastic junction boxes, and associated hardware. We provided the Attorney General with extensive geo-located photographs and information showing where the permits were in contrast to the construction.
The existing nine poles with permits were installed by Verizon in May 2020 during the coronavirus pandemic lockdown, and placed in front of at least three historic sites, in wetlands, and blocking scenic seascapes as can be seen here. We are concerned that these poles did not receive proper federal clearance for historical sites and rules which govern wetlands. The installation of the poles during a pandemic lockdown does not provide transparency or proper public disclosure.
However, DelDOT which governs the right of way over the state highway, responded to the information request, to state that they have no such documents nor have they issued additional permits, despite physical evidence that work was being done in these 10 new locations. This was a surprise to us, and it means one of the following is likely true:
- More pole infrastructure is being placed without permits required under law.
- The state may be allowing work to be done without permits, despite substantial public interest in 5G pole construction and either:
- They are allowing the unpermitted work to continue because the permits are in draft form. (The state attorney general’s office has rejected the draft form argument in the past when there is substantial public interest), OR
- There is no active work being done. This latter argument doesn’t seem plausible – see the evidence for yourself here.
This 5G activity in the Seashore State Park is the latest twist in the ongoing saga around small cell facilities in and around our beaches and public areas. Installations in Dewey Beach, Rehoboth Beach, Bethany, South Bethany and Fenwick Island have resulted in antennas and equipment mounted on 35ft to 50ft-tall poles on state rights of way including historical areas, wetlands, and seascapes. It’s changing the character of the coastline. Residents and property owners are justifiably outraged. Poles have been constructed and installed without public or local input as to the best design and aesthetic structure for coastal shorelines and coastal seascapes.
These controversial installations have been thoroughly covered by media and most recently resulted in a $375,000 “gift” from the state to Dewey Beach for relocating 5G poles, It remains to be seen if this money will ever be usable; the town has to reach a separate agreement with Verizon on relocation, the Cape Gazette confirmed with Verizon that they will take no action to relocate poles now because of a pending 5G pole lawsuit, and there is a three-year deadline to use the money.
It’s unacceptable to see an apparent lack of oversight and disclosure now affecting what is perhaps the crown jewel of Delaware’s state parks along an unspoiled coastline. If history is any indication of what will happen, 5G poles, which are larger and taller than neighborhood utility poles and top-heavy with bulky 5G equipment, will soon dot the shoreline in Seashore State Park. 5G technology requires close location of the poles, of less than 1000ft apart, and our geolocation analysis shows groups of markings and other activity less than a fifth of a mile apart throughout the park.
As responsible coastal stewards, we all have a duty to preserve the seascape and natural beauty of our Delaware coastline. The public has a reasonable need to know when this sort of infrastructure is coming. We are hopeful the Attorney General agrees.
Exhibits and Attachments sent with the FOIA appeal letter:
- Sept. 15, 2021 FOIA request of DelDOT by Jeffrey C. Smith
- Sept. 21, 2021 DelDOT FOIA response
- Sept. 21, 2021 Follow-up good faith correspondence with DelDOT including the Public Relations office seeking to resolve the dispute over the lack of production of any documents by DelDOT.
- June 9, 2020 Cape Gazette article about Verizon 5G poles being spaced 500-1000 ft apart and stating that they require no public notice by Verizon along Rt. 1 (even in the Seashore State Park).
- Aug. 13, 2020 U.S. Court of Appeals decision governing 5G pole placement being subject to NEPA, NHPA Section 106, and associated public input and review.
- Aug. 14, 2021 Legal analysis of U.S. Court of Appeals decision by Perkins Cole.
- July 2, 2021 Delaware AG opinion on DelDot FOIA denial.
- August 29, 2010 Delaware AG opinion on items of public interest not specifically exempted by FOIA.
- Photographs of construction sites without Permits sorted from North to South showing precise Geo Locations based on each individual photograph’s GPS as stored in each photo’s EXIF metadata information. Photos are shown with a map using that same GPS information. Attachment A.
- A Map of Permits from DelDOT’s Arcgis Permit System of Small Cell Installations on the right of the page, next to a Google Earth map of the locations and alleged construction sites as shown in each photograph’s Geolocation and displayed in Google Earth. Attachment B
- Summary photos grouped by type and/or wording which exists as written on the roadways of the Seashore State Park, on the pavement shoulder of Coastal Highway and nearby Inlet Road. Because there are so many we grouped them based on the writing that appears. Attachment C.
Dewey Beach, Delaware – A $375,000 gift from the state to relocate 5G poles that were sited in violation of local permitting laws can’t be used unless Dewey Beach is able to strike a separate agreement with Verizon.
The money, which effectively removes relocation responsibility from the poles’ telecom company owners, can be used only to relocate the poles and must be used within three years of when the state-Dewey Beach Memorandum of Understanding is finalized. The snag? Verizon told the Cape Gazette it is unable to make any agreement or relocate poles because of a pending lawsuit over the poles, filed by several local citizens in June. The Delaware Court of Chancery issued a temporary restraining order on July 1 preventing Verizon from installing more 5G poles. And the town cannot proceed without a separate agreement with Verizon, Mayor Dale Cooke confirmed at the Sept. 10 regular council meeting.
“Soon, Dewey will have what appears as a shiny $375,000 but not any progress towards solving any of the issues,” homeowner Jeffrey C. Smith wrote in a Sept. 18 email to the town council. “…So long as the funds are conditional on Verizon agreement with the town and any demand Verizon wishes to make, there are plenty of reasons, not considered at the Council meeting, that Dewey might want to reject the now unspendable funds, that were not considered at the Council meeting and which take the shine off the money.”
The town council voted unanimously to approve an agreement between the town and the State of Delaware, authorizing $375,000 of state monies to be used for relocating Verizon’s poles and any future poles at the State’s expense. The motion to approve passed after about 14 minutes of discussion, which largely involved citizen questions about why the state was awarding this money to the town. According to the MOA, the money can only be used to move 5G poles over a three-year period, including any new ones installed during that time by any wireless company. Any unused funds must be returned to the state.
It is unclear whether, if the agreement with wireless companies over relocation fails or remains blocked, the town will be entitled to use any of the money to pay staff, counsel or consultants who may work on the issue.
It is also unclear whether any other coastal communities have been granted money for 5G pole relocation. As of this writing, Dewey Beach appears to be the only one. And it remains unclear who made it happen, although Commissioner Paul Bauer gave some explanation.
“Each pole is about $14,000 dollars or so, just doing the math on that, ..if we had to move five we can do that math and $100,000 would have been fine,” he said. “But what happens between now and the next three years if anything else goes in and so that’s why …it’s about $375,000, with a little cushion.”
Asked why the town was receiving this money when other towns were not, Mayor Dale Cooke replied that “I’m not going to attempt to answer that question.”
- The MOA assumes that the wireless companies will be willing to work with the town to execute pole relocation. But it lays out no framework for this, nor does it outline that the town has to reach a separate agreement with Verizon or no funds will be released. It’s arguably not implied due to Verizon ownership of their poles since those are not on the Delaware Department of Transportation’s (DelDOT) right of way, and the DelDot agreement with the carriers contain DelDot rights to eject them. None of the five existing 5G poles got local permits, in violation of a federal environmental law, NEPA.
- The agreement effectively absolves Verizon and others from any responsibility, legal, financial or otherwise, to relocate poles. At this point it looks like Verizon is being relieved of the duty of the cost of moving their errant poles.
- Verizon is the only company that would have poles moved as of today. The MOA is interpreted to include any future poles that go up within the next three years, by Verizon or other companies.
- There is no mention of the need for Verizon cooperation in the MOA. There is no signature block for Verizon, meaning they are not party to the agreement. But without their cooperation and agreement, the poles won’t be relocated and the money cannot be used.
- The MOA means the town will own the project of getting a multinational corporation backed by hundreds of lawyers and local level lobbyists to agree to relocation. There was no discussion during the meeting of whether the town has the money and resources to have adequate legal and negotiator expertise. It is unclear if state money can be used for any of those expenses.
- Residents are expected to trust the town to manage this negotiation process, despite the mistakes that state Rep. Pete Schwartzkopf has publicly identified in the newspapers as Dewey mistakes and errors.
- Verizon already agreed to move three of the poles as documented in the newspaper with state Rep. Pete Schwartzkopf championing that. It is unclear how the MOA affects that agreement and whether Verizon will now ask the town to bear the expense of relocation.
- It is unclear whether the town had time for proper legal review of the MOA before the vote on a legally binding document with the State involving $375,000?
- The town council did not say who drafted the MOA and whether any local officials were involved.
- Any Verizon conditions or requests that are at all objectionable to Dewey Beach could result in the town losing $375,000 and Verizon losing nothing.
- Legal, consultant, negotiator and staff time and fees may not be included as usable in the $375,000. This detail is not included in the agreement.
- It appears that Verizon violated not just NEPA but also (with the Dewey lifesaving station) NHPA section 106.
- There was no public comment period for the MOA. CItizen group leader Jeffrey Smith was allowed to ask a few questions which were not sufficiently answered, but then it ended without there being an invitation for any more residents to ask or speak.