After Dewey Beach residents voiced opposition to state-permitted installation of 5G poles near the ocean, commissioners passed a resolution Oct. 9 proposing a public hearing be held to amend zoning code governing installation of small cell wireless facilities.
Interim Town Manager Jim Dedes said he received 35 to 40 emails and additional phone calls from residents opposed to the 5G poles. Some residents thought the town approved the installations, he said.
“As a matter of fact, we are in opposition,” Dedes said. “Nobody is in favor of putting them in, at least not on the ocean side.”
Commissioners said they had also been contacted by residents who opposed the poles. Commissioner David Jasinski said the biggest complaint is that poles were installed directly at the egress from street to beach.
Delaware Department of Transportation has sole authority for permitting pole installation on state rights of way, which includes most of Dewey Beach; only Chesapeake and Carolina streets are maintained by the town.
“We haven’t approved anything at all,” Commissioner Gary Persinger said.
During public comment, former Commissioner Anna Legates said there is no opposition to 5G in town, just to the placement of the poles. Beth Caruso asked what happens when the technology becomes obsolete.
“We need to care for the aesthetics of this town,” Caruso said.
Verizon and Tilson approached the town via DelDOT about potential poles, Dedes said.
“We made it very clear we don’t want poles anywhere on the ocean side,” Dedes said. “We offered suggestions, but to be quite frank, they were not receptive to anything we had to offer.”
Right now, Dedes said, there are no functional 5G poles in town. He said he was given a verbal commitment that all utility lines will be buried underground; they will start boring in December. Tilson agreed to consider aesthetics if approved to put poles on town-maintained streets, Dedes said.
Dedes said DelDOT told town officials they have no say in poles approved on state rights of way because of state and federal legislation. Town officials spoke with a City of Wilmington consultant who is involved in a lawsuit with utility companies over the matter, he said.
The consultant didn’t offer much encouragement in stopping installation, Dedes said, but encouraged town officials to create an ordinance to help with aesthetics.
By passing a resolution, Town Attorney Fred Townsend said, commissioners state the intent to regulate installation of poles on state and town rights of way in accordance with design standards and an ordinance.
Typically, Townsend said, commissioners don’t initiate adoption of a resolution through an ordinance.
“This is an unusual circumstance,” he said. “The resolution calls for commissioners to meet and decide whether to regulate in this area. The next meeting will be of commissioners, and if you favor going forward, assign it to the planning commission for further action.”
This method invokes the pending ordinance rule so the ordinance could be retroactive to the day it was introduced, Townsend said.
“It is a product of case law, this doctrine, and it's my recommendation you proceed in this fashion,” Townsend said. “This puts the public on notice we may be regulating in this area where we currently do not; they are advised a regulation is in the works, and it applies to them retroactively.”
Construction would meet design standards and either be approved administratively, or through the lengthy conditional-use application process, Townsend said.
“There’s been a lot of litigation in this area in other states,” Townsend said. “There is some recognized authority for governments to impose some restrictions based on aesthetics, and to collect reimbursements for expenses and permitting fees which are modest based on actual costs incurred.”
A virtual public hearing has been scheduled for 2 p.m., Friday, Nov. 6, for commissioners to discuss and possibly vote to amend town code by adding a new section relating to wireless facilities. A link to the meeting is available at townofdeweybeach.com.