After a yearlong moratorium, the City Council adopted “workable” amendments to Berkeley’s Zoning Ordinance, which will govern the placement of cell phone antennae around town.
After listening to presentations from a citizens group, telecommunications attorneys and a planning commissioner, the council approved a compromise recommendation, which primarily consisted of the staff’s proposed ordinance with three Planning Commission amendments and one from the citizens group.
The ordinance was approved by a 6-1-1 vote, with Councilmember Kriss Worthington voting in opposition and Councilmember Betty Olds abstaining. Councilmember Margaret Breland did not attend the meeting due to an illness.
Unless the proposed site is in a nonresidential district and has existing wireless antennae, the ordinance will compel telecommunications companies to go through a lengthy regulatory process, which will include demonstrating that a proposed site is necessary to area coverage, compliance with a variety of design standards and application review by the Zoning Adjustments Board.
The council rejected a citizens’ amendment that would have established a 150-foot buffer zone around schools, day care centers and residences.
Last December the council adopted a 45-day moratorium on new antenna applications after a group of Solano Avenue neighbors, concerned about health risks from radio frequency waves that wireless antennae emit, protested a Zoning Adjustments Board decision to allow Nextel Communications to install a wireless telecommunications antenna on the roof of the Oaks Theater at 1875 Solano Ave. The council twice extended the moratorium.
Councilmembers, commissioners and city staff said cobbling the ordinance together was a complex project because of scrutiny by telecommunication lawyers who were threatening lawsuits if the new ordinance violated the Telecommunications Act of 1996. Federal law prohibits local governments from regulating the antennae based on potential environmental or health hazards.
In addition the council was under time pressure because the moratorium is scheduled to expire this month and the council is restricted from further extensions.
“I think we did the best we could do with the deadline,” Mayor Shirley Dean said. “And we still have the option of making more amendments in the future.”
It remains to be seen whether the council was successful in choosing a compromise ordinance that will satisfy both the citizens group which doesn’t want the antennae near schools or residential neighborhoods and the telecommunication companies which have sent a parade of lawyers to City Council and Planning Commission meetings protesting a restrictive ordinance.
Worthington said he voted against the ordinance because he was unconvinced that it would preclude litigation under the Telecommunications Act.
“Unfortunately I think it conflicts with federal law,” he said. “While I don’t agree with the law, I think working to change it is better than working against it.”
Olds said she abstained because she had not had sufficient time to examine the material that was submitted to council by the Planning and Development Department, the Planning Commission and a lawyer representing the citizens group.
Nextel attorney Nick Selby said the ordinance was extremely complex and would make the application process very complex and time consuming. But he added the ordinance could possibly be “workable.”
“The proof will be in the pudding,” he said. “If the city implements the new ordinance in an overly restrictive manner so new cell sites can’t be added or modifications can’t be made to an existing site, there still could be a violation of the Telecommunications Act.”
Dean also took a wait-and-see attitude. “We’re plowing new ground here so we’ll have to see what happens,” she said.
Of the 14 amendments recommended by the citizens group, only one was adopted by the council. The amendment called for unannounced antenna spot checks by a qualified engineer every two years at the expense of the telecommunication company. The spot check would verify if the equipment was working correctly and the level of radio frequency radiation was at or below FCC standards.
Erica Etelson, an attorney who is a member of the citizens group, said that she was disappointed the council did not consider more of the group’s proposed amendments.
“I’m terribly disappointed, we had so many amendments that the City Council rejected without much discussion at all,” she said.
Planning Commissioner Gordon Wozniack said the Planning Commission put a great deal of time into their recommendation. He added that the commissioners, which are usually at odds with one another, were able to reach unanimous agreement on their recommendation during a Nov. 19 meeting.
Wozniack said telecommunications representatives provided the commission with information that indicated there would not be that many antennae applications in coming years.
“I think it’s wrong to imply that Berkeley will end up with thousands of antenna sites,” he said. “In reality it’s probably more like 50.”
Currently there are 25 wireless communication antennae in Berkeley.