. . . a grievance over an application for a so-called “small” Wireless Telecommunications Facility (sWTF) to be installed in front of her home
Adapted from an article by Daniel Pineda, Oct 7, 2022 | Original Beachcomber article here.
On Sept. 7, Moira Hahn, a resident of Long Beach, filed a complaint with the Long Beach Citywide Accessibility Coordinator, stating that the city had misused the protections of the American with Disabilities Act (ADA). Hahn is a 66-year-old, disabled, retired college professor, who has been medically diagnosed to have Electromagnetic Magnetic Sensitivity (EMS): a medical condition caused by exposure to electromagnetic fields.
Hahn told the Beachcomber:
“Electromagnetic sensitivity causes me regular migraine headaches, cluster headaches and ear pain when I’m exposed to Wi-Fi or other sources of electromagnetic radiation, including prolonged proximity to transmitting cell towers. I recently experienced insomnia, heart palpitations and jitters, when we had to stay at a hotel with a Wi-Fi access point near our bed. I could not sleep. It felt like I was having a heart attack all night.”
Hahn’s grievances with the city began when the Long Beach City Council approved for the telecommunications company, AT&T, to replace a light post near Hahn’s home with one that would include a new cell tower; something that would cause continuous injury to Hahn, and potentially others with EMS.
In response, Hahn, as well as her husband Mark Hotchkiss, went to the Long Beach Department of Public Works, this past March, to appeal the approval of the new cell tower. Hahn talked to the Beachcomber about the appeal she made to the Department of Public Works, as well as shared letters containing some of the arguments made in said appeal.
One of the arguments she made was that Long Beach’s decision to add the new AT&T cell tower was in violation of the California Environmental Quality Act (CEQA), in which “the city failed to consider cumulative impacts of the one thousand pending cell tower installations, as CEQA requires cumulative impacts to be taken into consideration.”
Hahn also argued that the city had avoided an environmental review, by calling the new cell towers “streetlights,” another violation in the CEQA. Hahn said.
“They claim that over 1,000 cell towers being installed are substantially the same as the streetlights they replace. That is not true. Cell towers produce negative environmental impacts not limited to health, safety and flammability, that the original streetlights do not.”
Hahn’s appeal also included a letter from her physician, Dr. Richard Wexler, which included details on how symptoms of EMS can cause serious migraines for Hahn and were even the reason she had to retire from teaching.
Dr. Wexler wrote:
“Certain people are more sensitive to wireless radiation than others and those electromagnetic sensitive people often experience an exacerbation of their underlying medical problems when they are exposed to continuous doses of wireless radiation. “In my medical opinion, if a wireless telecommunications facility is located in close proximity to Ms. Hahn’s house and transmits wireless radiation continuously – even at levels within the existing FCC guidelines – Ms. Hahn may be physically harmed by the wireless radiation.”
Hahn had hoped her arguments to the Department of Public Works would be more than enough for their appeal to be accepted. However, the city clerk notified the appellants in April, that her appeal was denied.
The final conclusion made by Administrative Hearing Officer Larry Minsky stated:
“Hence, while issues of cumulative harm caused or potentially caused to appellants and the community appear to be a real danger, for the reasons noted supra such matters do not and cannot serve, in this instance, as a viable argument to overturn the City’s approval of the AT&T’s Permit application.”
To Moira Hahn, this was not the outcome she was looking for. However, the story doesn’t end there.
According to a letter written by Hahn’s attorney, Kathryn Pettit, the city also stated their interpretation of the ADA, in which it would only acknowledge individuals with disabilities requiring wheelchairs; something Pettit describes as discriminatory to those with other disabilities that fall under the protection of the ADA, like EMS, which has been a recognized condition that leads to impairment of one or more life functions by the Federal Access Board.
Pettit said in the memorandum.
“Yet the city did not even attempt to comply with the ADA because it argues it is ‘preempted’ from doing so. The city explicitly stated at the hearing that it did not consider Ms. Hahn’s disability in approving the Wireless Telecommunication Facility (WTF) permit.”
Hahn also believes that the city’s interpretation of the ADA is highly unreasonable, as it excludes all disabilities that don’t require the use of a wheelchair and is not consistent with legal precedent from the April, 2019 California Supreme Court ruling T-Mobile v San Franciso that states:
From p. 8-9 of the 2019 CA Supreme Court ruling in T-Mobile v San Franciso:
. . . the City has inherent local police power to determine the appropriate uses of land within its jurisdiction. That power includes the authority to establish aesthetic conditions for land use . . . We also disagree with plaintiffs’ contention that section 7901’s incommode clause limits their right to construct [telephone] lines only if the installed lines and equipment would obstruct the path of travel. Contrary to plaintiffs’ argument, the incommode clause need not be read so narrowly.
As the Court of Appeal noted, the word “ ‘incommode’ ” means “ ‘to give inconvenience or distress to: disturb.’ ” (T-Mobile West, supra, 3 Cal.App.5th at p. 351, citing Merriam-Webster Online Dict., available at http://www.merriam-webster.com/dictionary/incommode [as of April 3, 2019].)8 The Court of Appeal also quoted the definition of “incommode” from the 1828 version of Webster’s Dictionary. Under that definition, “incommode” means “ ‘[t]o give inconvenience to; to give trouble to; to disturb or molest in the quiet enjoyment of something, or in the facility of acquisition.’ ” (T-Mobile West, supra, 3 Cal.App.5th at p. 351, citing Webster’s Dict. 1828—online ed., available at http://www.webstersdictionary1828.com/Dictionary/incommod [as of April 3, 2019].)
For our purposes, it is sufficient to state that the meaning of incommode has not changed meaningfully since section 7901’s enactment. Obstructing the path of travel is one way that telephone lines could disturb or give inconvenience to public road use. But travel is not the sole use of public roads; other uses may be incommoded beyond the obstruction of travel. (T-Mobile West, at pp. 355-356.) For example, lines or equipment might
- generate noise,
- cause negative health consequences, or
- create safety concerns.
All these impacts could disturb public road use, or disturb its quiet enjoyment.
Hahn said about this:
“The city’s interpretation of the ADA is illogical and wrong. It is not just unfair to me, but to all Long Beach residents with legitimate disabilities not requiring the use of a wheelchair, including the sight-iimpaired, hearing-impaired, the neurologically-impaired and those with cancer.”
According to ruling in similar recent case in the District of Columbia Circuit, the judges wrote:
“a regulation can no more preempt a federal statute than a federal statute could preempt a provision in the Constitution.”
In other words, a city cannot rely on a chapter of its local zoning code to preempt something like the ADA. And yet, that seems to be what is happening here in Long Beach.
Moira Hahn and her husband are not giving up. The two have an opportunity to present their appeal once more, at a Long Beach City Council meeting on Oct. 18. To add insult to injury, according to an email written by Moira Hahn and shared with Beachcomber, Daniel Ramirez of the Long Beach Department of Public Works submitted an invoice to Hahn, stating that she must pay a $400 fee, to have their hearing with the City Council not be canceled, something that Hahn questions.
Hahn told the Beachcomber she could find no statute or ordinance in the city that supports this fee. She’s is demanding that the fee be waived.
[Note: During the writing of this article, Hahn had informed the Beachcomber, that she’s been notified that the $400 fee would be refunded to her by the City, according to an email she received from Daniel Ramirez].
Hahn hopes that, during the council meeting in October, the city will follow all CEQA regulations, as well follow the of the all ADA regulations and ADA federal laws because the City is required to do by their own city code. Hahn said:
“We hope that the city will follow CEQA, which also requires the City to address the project’s impacts on cumulative impacts of such a large planned installation of 1,000+ additional cell towers in Long Beach. The City has an obligation to follow the ADA, without limiting its responsibility to only the disabled requiring wheelchair access, as they were instructed to do in the 2019 ruling in T-Mobile v San Francisco.”
The ADA defines a disability as “a physical or mental impairment that substantially limits one or more major life activities of such an individual; a record of such an impairment; or being regarded as having such an impairment.” For more information about the ADA, you can visit the official website at ADA.gov.