About a month before issuing permits for four new Bethany Beach cell poles, the Town Council — at the recommendation of the town manager — unanimously repealed the entire existing wireless zoning ordinance (Chapter 525).
So, it is not surprising that four new wireless facilities on tall wooden poles were installed this past winter in the most stunningly beautiful beachfront sites in the entire town — several closely abutting residences and historic properties. Positioned in Town-owned parking lots along Atlantic Avenue, three of four are very close to boardwalk/sand dunes at Ocean View Parkway, Campbell, Parkwood and Maplewood.
Chapter 525 prevented obtrusive wireless infrastructure and invasive siting of cell poles. Protections included mandatory notice to nearby lot owners and conditional use hearings by Town Council for all new wireless facilities. To minimize adverse visual impacts, applicants had to meet rigorous design, engineering and aesthetic provisions, along with minimum setbacks and height restrictions. Repeal of Chapter 525 in November 2019 erased these requirements and more.
More permits have been approved. Three new 50-foot monopoles have been freshly planted along Route 1 (at Wellington Parkway, Second Street and, again, at Ocean View Parkway). More applications are presumed pending. There’ve been no hearings and no notice regarding any wireless permits, because none were required.
Way back in July 2019, the town manager — claiming the FCC had taken away state and local authority — said he’d reach out to the Town’s wireless lawyers “to help us draft a workable and realistic (wireless) ordinance to support our administrative process and we are awaiting a response...”
Curiously, the council “briefing book” for November 2019 meeting (when Chapter 525 was repealed) contains no alternate wireless ordinance from a law firm about, nor legal guidance on, total repeal. And, the (unposted) meeting minutes make no mention of a law firm review.
If outside lawyers provided advance guidance to Bethany Beach before repeal, they should’ve mentioned that 40 cities and counties were aggressively contesting recent FCC wireless deployment orders. (The town manager determined those same FCC orders rendered Chapter 525 “obsolete.”) Those 40 municipalities filed “petitions for review” in October 2018, a year before the town council declared surrender and repealed Chapter 525. Ultimately, those petitions were heard in the 9th Circuit as City of Portland vs. FCC No. 18-72689.
In their August 2020 ruling, the 9th Circuit upheld FCC orders about such “shot-clocks” and fee limits for cell poles in rights of way, but by no means voided municipal proprietary rights over wireless placements. In fact, the Court strongly re-affirmed municipal authority over aesthetics.
Repealing an entire chapter of the Town zoning code — without stronger and better replacement — raises serious questions about exactly whom the repeal was intended to benefit.
Certainly, repeal was not intended for aesthetic preservation of the town’s boardwalk, beachfront, historic properties and residential neighborhoods, nor protection of rights of adjacent property owners.
The council must reverse its previous ill-informed action. Chapter 525 should be immediately reinstated — and strengthened.