The City Council will have to step gingerly through a thicket of potential lawsuits tonight as it considers regulating the location of wireless communication antennae, which make cell phone use possible.
“This is a very thorny issue because everybody wants to use a cell phone but nobody wants an antenna in their neighborhood,” said Mayor Shirley Dean. “Whatever action we take on this it’s going to be a really, really interesting maneuver.”
The council will choose among three proposals to amend the city’s Zoning Ordinance. The proposals seek to regulate the placement of wireless antennae throughout the city.
One recommendation comes from Planning and Development staff, another is from the Planning Commission and a third was written by a group of residents.
The council adopted a 45-day urgency moratorium on new antennae last December, pending revision of the city’s Zoning Ordinance, a provision which regulates the type of activities allowed in certain parts of the city.
The moratorium was extended for six months in January and for another five after it expired in June.
No further extensions are allowed on the moratorium, and if the council does not approve a recommendation, the previous zoning ordinance, which allowed placement of antennae in neighborhoods, will prevail as of Jan. 1,the council will have to adopt one of the recommendations by the end of the year or the previous zoning ordinance, which allowed placement of antennae in neighborhoods, will prevail as of Jan. 1, according to a Planning Department report.
The residents who banded together to fight the placement of the antennae in residential neighborhoods, near schools and day care centers, say the equipment emits harmful radioactive radio frequencies.
Telecommunications companies such as Nextel and Sprint Wireless Communications have sent a steady stream of attorneys to City Council and Planning Commission meetings to argue that an amended ordinance that is too restrictive will violate the Telecommunications Act of 1996 thereby making the city vulnerable to lawsuits.
In addition telecommunications companies have hired a variety of specialists who claim the wireless emissions are thousands of times below federal limits and are not at all harmful.
According to Dean, the attorneys representing the telecommunication companies have said the only recommendation that they will accept is the one from the Department of Planning and Development, which is the least restrictive.
“They have said that if the City Council approves any other amendment besides the staff amendment, they will sue,” Dean said.
The major difference between the Planning Commission and planning department recommendations is that the telecommunications companies have to verify to the Zoning Adjustment Board that selected antennae sites, citywide, are critical to providing cell phone reception in targeted areas, according to Vivian Kahn, a city planning consultant.
Kahn says in her report that if telecommunications companies want to place the antennae in industrial neighborhoods in west Berkeley, they should not have to go through the ZAB; as long as they are not visible, they should be approved by planning department staff without the ZAB’s oversight.
Planning Commissioner Gene Poschman called the proposal “unfair.”
“This is a matter of equal treatment,” Poschman said. “We can’t just say to the telecommunications companies ‘hey put anything you want in west Berkeley’ like it’s a dumping ground. We have to treat each of the city’s neighborhoods with respect.”
The citizens group’s proposal is the most restrictive. Among other restrictions, it calls for a 200-foot buffer between any antennae location and schools, day care centers and residences.
Attorney Erica Etelson, who is a member of the citizens group, said a buffer zone around schools and homes is not unprecedented.
“The city of Pleasanton requires a 300-foot buffer between schools, senior centers and parks,” she said. “And the city of Barrington, Mass. requires a 1,500-foot buffer around schools and 750 feet around residences.”
But a telecommunications attorney, who did not want to be identified, said if the City Council approved the citizens’ amendment there would surely be a lawsuit.
“If you map that plan out, there is not one place in Berkeley where an antenna could be placed, which would absolutely be a violation of the Telecommunications Act,” the attorney said.
The council will consult with the city attorney during an executive session meeting prior to considering the various recommendations.