Montgomery County Council Member Hans Riemer will defer a zoning amendment to allow 5G antennas in residential areas — the latest delay in an ongoing effort to accommodate what’s been billed as the “next generation” in cellular technology.
The proposal to shrink setbacks between homes and 5G antennas experienced a setback of its own last week after a mixed review from the council’s Planning, Housing and Economic Development (PHED) Committee.
Riemer, the committee chair, argued that Montgomery County has fallen behind nearby jurisdictions by failing to adapt more permissive zoning codes toward 5G antennas. The technology employs streamlined radio equipment — often placed on existing utility poles — to boost cellular connectivity.
But Council Members Andrew Friedson and Will Jawando said they were hesitant to move forward with an amendment given the county’s ongoing litigation against the Federal Communications Commission. With a lack of political support, Riemer reluctantly decided to table the amendment until June, when a federal appellate court is likely to issue a ruling on the case.
The county’s litigation dates to 2018, when the FCC issued strict guidelines limiting the ability of local jurisdictions to block the rollout of 5G technology.
Montgomery was one of more than 90 cities and counties to join a lawsuit challenging the new rules. It also took the unique step of challenging the FCC on health grounds, arguing that the agency should be required to update its standards on radiofrequency exposure.
Riemer said both lawsuits were an effort to take “whatever steps necessary” in defending and exerting local control over 5G deployment. But he said the county filed them to introduce the networks on its own terms, not to block the technology.
“We met with the FCC and very assertively said that we do not want them to preempt us because we understand the need for these networks,” Riemer said at the meeting last Thursday. “That’s why we’re suing. We’re suing for the authority to pass this ordinance.”
His zoning text amendment would allow 5G antennas to use or replace pre-existing streetlights and utility poles up to 60 feet from a residential property. Some antennas could be installed up to 30 feet from a home as a conditional usage, which would require permission from a county hearing examiner.
The county currently allows the antennas in commercial and mixed-used zones within 10 feet of existing buildings. But in residential zones, all new cell towers must be at least 300 feet from a home.
Riemer argues that could limit the deployment of 5G networks in many areas of the county. Small-cell antennas, often no bigger than a backpack, mark a significant shift from older cell towers — large-scale installations that often stretch 100 feet or higher.
Mitsuko Herrera, director of the county’s Office of Broadband Programs, explained that a single small-cell antenna can deliver as much capacity as a larger installation. They operate at a higher frequency than current 4G networks, but one that can’t travel the same distance. To work effectively, 5G requires a network of antennas placed within close range.
“It’s like if I’m running from my office to the water cooler,” Herrera said at the meeting last week. “If I shorten the distance between my office and the cooler, I’ll be able to go faster and faster.”
Several jurisdictions in the Washington, D.C., region already allow the antennas in residential zones.
In November, Prince George’s County passed new zoning regulations to allow small cell towers within 30 feet of residential properties. Washington, D.C., allows the antennas within 10 feet of existing buildings. Fairfax County — which passed its regulations last April to comply with a new state law — allows small-cell towers by right on any existing utility pole.
Riemer said Montgomery County risked falling behind by not implementing its own zoning changes. Some densely populated areas of the county are running out of capacity on existing cellular networks, Herrera said last week. Riemer tied the delayed amendment to the county’s current economic struggles and ongoing efforts to rebrand itself as a business-friendly community.
“We’re the only jurisdiction in the Washington region that doesn’t have a framework in place to allow for the deployment of wireless,” Riemer said in a phone interview on Friday. “And not coincidentally, we’re facing some major economic development challenges.”
That hasn’t helped bolster political support for the residential zoning changes, which have died multiple times over the past few years. In 2015, then-County Executive Ike Leggett proposed an amendment to allow small-cell towers in most areas of the county. That bill died in committee, Riemer said.
In 2018, he introduced an amendment that would allow the antennas within 30 feet of a residential property. Riemer pulled the bill after it became clear that it lacked majority support on the nine-member council.
“It makes us look like a second-tier county,” he said on Friday. “You look like a place that isn’t embracing change and technology.”
But Friedson and Jawando argued it would be premature for the county to pass a zoning amendment while challenging the FCC on its authority to preempt local governments.
The lawsuits against the agency are scheduled for oral arguments on Feb. 10, with a decision likely by the summer. Jawando, an attorney, said the court could require the agency to redraft its regulations, which might require local governments to adjust their own zoning codes.
“The issue, for me, is that depending on how those lawsuits go, we might have more or less authority to make our own decisions,” he said Thursday.
“With all that happening, waiting another few months is not going to hurt anything,” he added later during the meeting.
Riemer’s proposed amendment adheres to current FCC requirements. That makes it unlikely that the agency would overturn it, even if the county lost its court cases, senior legislative analyst Jeff Zyontz, a council attorney, said on Thursday.
But the changes have also faced a wave of opposition from residents, largely driven by health concerns over the new technology. Riemer has repeatedly assured residents that there is no good evidence of health risks caused by 5G antennas.
In December, the FCC reported that it found no reason to revise its current standards for radiofrequency exposure, citing recommendations from the U.S. Food and Drug Administration.
Congress also bars local governments from considering health as a factor in network deployment. But opponents of the zoning ordinance have frequently argued that Riemer’s assurances are undermined by the county’s lawsuit opposing the FCC regulations on health grounds.
The ongoing concerns cast a shadow over the future of the amendment. In a phone interview on Friday, Friedson said his primary concern was with the future of the county’s litigation. But after the cases are settled, he’s still undecided on whether to support the zoning change.
“I believe the legal process should run its course before we make a decision on it,” he said. “But after that, I still need to dive into the details so I can make an informed decision.”