Sebastopol Municipal Code Ch. 8.58 Smart Meters (temporary Moratorium on the Installation of Smart Meters)

This chapter shall be known as the “Temporary Moratorium on the Installation of Smart Meters and Related Equipment within the City of Sebastopol or in, along, across, upon, under and over the Public Streets and Places within the City of Sebastopol.”

A. The City of Sebastopol (the “City”), through its police powers granted by Article XI of the California Constitution, retains broad discretion to legislate for public purposes and for the general welfare, including but not limited to matters of public health, safety and consumer protection and as a local government, the City of Sebastopol finds they have a legal duty to defend and protect the health and welfare of this community.

B. In addition, the City retains authority under Article XII, Section 8 of the California Constitution to grant franchises for public utilities and pursuant to California Public Utilities Code Section 6203, “may in such a franchise impose such other and additional terms and conditions..., whether governmental or contractual in character, as in the judgment of the legislative body are to the public interest.”

C. Further, Public Utilities Code Section 2902 reserves the City’s right to supervise and regulate public utilities in matters affecting the health, convenience and safety of the general public, “such as the use and repair of public streets by any public utility, the location of the poles, wires, mains, or conduits of any public utility, on, under, or above any public streets, and the speed of common carriers operating within the limits of the municipal corporation.”

D. Pacific Gas and Electric Company (PG&E) is installing smart meters in Central and Northern California and is installing these meters in Sebastopol, despite the City’s request for a moratorium and health and safety studies. PG&E has already installed antennas to support the smart meter system at several sites within the public rights-of-way in the City without obtaining permits from the City as required by the City Code. Further, PG&E did not comply with Section XIV of General Order 131-D of the California Public Utilities Commission (CPUC), which requires a utility to consult with the local jurisdiction on land use matters prior to locating its facilities.

E. Concerns about the impact, safety and accuracy of smart meters, as well as the vulnerability to hacking and intrusion, which will make our electrical grid more susceptible to terrorist attack and disruption, have been raised throughout California and nationwide, leading local and State governmental organizations to call for delays, opt-in programs, or outright bans on the deployment of smart meters. The City of Sebastopol also has concerns regarding PG&E’s change in how meters will now be read, effectively reducing the frequency of documented simple inspections (including “smell test” around gas meter for leaks, observation of meter and adjacent breaker/fuse box for obvious heating, checks for observed local illegal bypass of meters) that reduces the safety of potentially dangerous utility supply to homes. The City requests that all utility metering be physically on-site inspected, by an adequately licensed person, every month. A written, certifiable record should document these inspections.

F. The CPUC currently has pending before it an application evaluating a smart meter opt-out program, which includes a community-wide opt-out possibility. PG&E’s opt-out proposal will not protect the privacy, health and economic interests that are raised by numerous Sebastopol residents, because the plan (as set forth in CPUC Application A 11-03-014) requires substantial upfront and ongoing monthly fees, which are unreasonable and do not reflect any savings garnered by maintaining current analog meters and avoiding the acquisition and installation costs incurred by replacement with smart meters. In addition, PG&E’s fee proposal also effectively discriminates against those ratepayers who elect to opt out for health or safety reasons, which is in violation of the prohibition on prejudicial rates in California Public Utilities Code Section 453(b).

G. Indeed, major problems and deficiencies with smart meters in California have been brought to the attention of the Sebastopol City Council, including PG&E’s confirmation that smart meters have provided incorrect readings costing ratepayers untold thousands of dollars in overcharges and PG&E’s records outlined “risks” and “issues” including an ongoing inability to recover real-time data because of faulty hardware originating with PG&E vendors. Concerns have also been raised that the new smart-meter devices do not appear to have the same operating history information, extensive service history, or public-reviewed proven safety record as the older style analog meters.

H. The ebb and flow of gas and electricity into homes discloses detailed information about private details of daily life. Energy usage data, measured moment by moment, allows the reconstruction of a household’s activities: when people wake up, when they come home, when they go on vacation, and even when they take a hot bath. Smart meters represent a new form of technology that relays detailed hitherto confidential information reflecting the times and amounts of the use of electrical power without adequately protecting that data from being accessed by unauthorized persons or entities and, as such, pose an unreasonable intrusion of utility customers’ privacy rights and security interests.

I. Significant health questions have been raised concerning the increased electromagnetic frequency radiation (EMF) emitted by the wireless technology in smart meters, which will be in every house, apartment and business, thereby adding additional manmade EMF to our environment around the clock to the already existing EMF from utility poles, individual meters and telephone poles.

J. FCC safety standards do not exist for chronic long-term exposure to EMF or from multiple sources, and reported adverse health effects from electromagnetic pollution include sleep disorders, irritability, short-term memory loss, headaches, anxiety, nausea, DNA breakages, abnormal cell growth, cancer, premature aging, etc. Because of untested technology, international scientists, environmental agencies, advocacy groups and doctors are calling for the use of caution in wireless technologies.

K. The primary justification given for the smart meter program is the assertion that it will encourage customers to move some of their electricity usage from daytime to evening hours; however, PG&E has conducted no actual pilot projects to determine whether this assumption is in fact correct. Nontransmitting time-of-day meters are already available for customers who desire them, and enhanced customer education is a viable nontechnological alternative to encourage electricity use time-shifting. Further, some engineers and energy conservation experts believe that the smart meter program, in totality, could well actually increase total electricity consumption and therefore the carbon footprint.

L. Because the potential risks to the health, safety and welfare of Sebastopol residents are so great, the Sebastopol City Council wishes to adopt a moratorium on the installation of smart meters and related equipment within the Sebastopol City limits until the California Public Utilities Commission (CPUC) completes its Phase 2 hearings on community opt-out and the City of Sebastopol City Council makes their decision and actions based upon the outcome of the CPUC hearings. This moratorium will allow the CPUC petition process to be completed and for additional information to be collected and analyzed regarding potential problems with smart meters.

M. There is a current and immediate threat to public health, safety and welfare because, without the urgency ordinance codified in this chapter, smart meters or supporting equipment will be installed or constructed or modified in the City without PG&E’s complying with the CPUC process for consultation with the local jurisdiction, the City’s Code requirements, and subjecting residents of Sebastopol to the privacy, security, health, accuracy and consumer fraud risks of the unproven smart meter technology.

N. The City Council hereby finds that it can be seen with certainty that there is no possibility that the adoption and implementation of the ordinance codified in this chapter may have a significant effect on the environment. This chapter does not authorize construction or installation of any facilities and, in fact, imposes greater restrictions on such construction and installation in order to protect the public health, safety and general welfare. This chapter is therefore exempt from the environmental review requirements of the California Environmental Quality Act (CEQA) pursuant to Section 15061(b)(3) of Title 14 of the California Code of Regulations.

A. Moratorium on the Installation of Smart Meters and Related Equipment within the City of Sebastopol or in, along, across, upon, under and over the Public Streets and Places within the City of Sebastopol.

1. No smart meter may be installed in or on any home, apartment, condominium, business, or any City property in the City of Sebastopol, and no equipment related to smart meters may be installed in, on, under, or above any public street or public right-of-way in the City until such time as the California Public Utilities Commission (CPUC) completes its Phase 2 hearings on community opt-out, at which time the Sebastopol City Council shall consider whether to extend or terminate this prohibition in light of the then-current data on smart meter privacy, safety, accuracy and health effects.

2. Violations of this moratorium may be charged as infractions or misdemeanors as set forth in SMC 1.04.010, Penalties:

Except where specifically provided, any person violating any of the provisions of the Municipal Code shall be deemed guilty of an infraction and any person violating the same section or portion of an ordinance on a second or subsequent occasion shall thereafter be deemed guilty of an infraction, and any person violating the same section or portion of an ordinance on a third or subsequent occasion shall thereafter be deemed guilty of a misdemeanor and upon conviction of either an infraction or a misdemeanor shall be punishable as provided by law. Fines shall be set by bail schedule.

In addition, violations shall be deemed public nuisances, with enforcement by injunction or any other remedy authorized by law.

3. The Sebastopol City Manager is hereby authorized to direct all City departments to facilitate compliance with the purpose and intent of this chapter using the enforcement powers described in subsection (A)(2) of this section.

4. The City of Sebastopol requires that all further deployment is stayed until the California Public Utilities Commission (CPUC) completes its Phase 2 hearings on community opt-out and the City of Sebastopol City Council makes their decision and actions based upon the outcome of the CPUC hearings.

Based on the findings and conditions set forth and described in SMC 8.58.020, the City Council of the City of Sebastopol finds and determines that (A) there is a current and immediate threat to the public health, safety and welfare; (B) the moratorium must be imposed in order to protect and preserve the public interest, health, safety, comfort, convenience and to preserve the public welfare; and (C) it is necessary to preserve the public health and safety of all residents or landowners adjacent to such users as are affected by this urgency ordinance as well as to protect all citizens of the City of Sebastopol by preserving and improving the aesthetic and economic condition of the City. The City Council declares this chapter is necessary as an urgency measure and is necessary to address existing threats to the public health, peace, property, safety and general welfare of this community and urgency for its adoption are set forth in the findings stated above.

During the continuation of the effectiveness of this chapter, the provisions of this chapter shall govern. If there is any conflict between the provisions of this chapter and any provision of the Sebastopol City Code, or any City ordinance, resolution or policy, the provisions of this chapter shall control.

The ordinance codified in this chapter, being adopted as an urgency measure for the immediate protection of the public safety, health, and general welfare and containing a declaration of the facts constituting the urgency, upon passage by a minimum four-fifths vote of the City Council, shall take effect immediately upon its adoption and shall continue in effect until modified or rescinded.

Copies of the ordinance codified in this chapter shall, within 15 days after its passage and adoption, be posted in three public places in the City of Sebastopol: (A) City Hall bulletin board; (B) Sonoma West Times and News; (C) Sebastopol library bulletin board.