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Three news items unresolved in 2005—outdoor dog care, cell phone tower radiation and a controversial homebuilding amendment—dominated discussion at the first Berkeley City Council meeting of the new year on Tuesday.  

Councilmembers unanimously approved a revised work plan requiring the Planning Commission to contemplate changes to Berkeley’s contentious by-right addition ordinance, a code that currently allows homeowners to add up to 500 square feet to their property. 

By-right build-outs have come under fire recently because some residents, particularly those in the Berkeley hills, are complaining about blocked sunlight and views. Many lament that they have no recourse under existing policy. 

In December, the council considered issuing an urgency ordinance that would have banned additions above the second floor, required use permits and granted neighbors the opportunity to appeal. But the ordinance required a four-fifths vote, a majority that the council deemed unfeasible.  

“There’s a majority for some change,” Councilmember Gordon Wozniak said in a phone interview Wednesday, but “it’s not clear what yet.” 

Councilmember Linda Maio was less ambivalent about championing reform.  

“It seems to me there’s a definite gain on the part of one party and a loss on the part of another one,” she said. “I’m actually in favor of moving along more aggressively, but I will go along with my fellow councilmembers and pass staff’s recommendation.” 

As a result of Tuesday’s decision, the Planning Commission will be responsible for drafting a palatable by-right addition amendment, a process that is expected to begin in 30 to 60 days. Planning Director Dan Marks said the commission will postpone its annual general plan review and a land-use analysis of the area between Gilman Street and Ashby Avenue from Interstate 80 to San Pablo Avenue to allot time for the by-right addition project. 

Cell phone health standards get  

mixed reception 

The city manager’s reminder to councilmembers Tuesday that the city is, by federal law, precluded from thwarting development of cell phone towers on account of health and safety concerns alone, reignited debate over regulation of radio frequency (RF) emissions.  

The recommendation countermanded urgings from the Community Health Commission (CHC) in November that council not approve new cell phone base stations until completion of a health study due out in May. The CHC had further directed the city to implement the most rigorous international health standards known, which permit one hundredth of the exposure currently deemed safe by the U.S. government. 

Wozniak expressed skepticism about the precaution. “From what I know … I would say there’s no convincing evidence there are any health hazards associated with cell phones.” 

Councilmember Max Anderson disagreed. 

“If we’re waiting on some results from the Health Commission, it seems to me that it would be prudent to not approve any more cell towers during the interim,” he said Tuesday.  

Legally, however, Anderson’s point is moot, City Attorney Manuela Albuquerque said. 

“You’re making complete logical sense, councilmember,” she told him. “The only problem is that we’re not allowed to regulate health effects at all. … Our hands are completely tied by the government.” 

Though opinions appear well formed, the issue will be held over until the next meeting, because councilmembers received no documentation from the CHC on Tuesday.  

In the meantime, controversy surrounding RF emissions is not likely to fade. In addition to an ongoing demand for new cell phone towers, Berkeley is considering a citywide wireless Internet system and radio frequency identification devices for use at the public library, compounding concern over potential health hazards. 

On Tuesday the Ninth Circuit U.S. Court of Appeals ruled that cell phone towers can not be denied under California law because of aesthetic reasons. 

Not in their backyard? Outdoor dog care amendment carried over 

Councilmembers deferred passing an amendment that would exempt homeless people who own dogs from the same outdoor care standards required of other dog-owners, given that concessions may be implicit in the code. 

“The way I read the ordinance, it says ‘No person shall keep a dog on premises …’” Wozniak said. “It seems to me that it says we’re not talking about homeless people.” 

The city attorney agreed. “I don’t think (the amendment) is necessary, because on its face, (the ordinance) doesn’t apply to anything that’s not on premises,” Albuquerque said.  

In December, the council approved care requirements for canines tethered outdoors, delineating shelter, water, food and exercise protocol. But Humane Commission member Jill Posner worried that the ordinance unfairly targeted homeless dog-owners.  

“It does not enshrine in it the kind of protections for the homeless and for those people without shelter,” she said Tuesday. “The people who do not have shelter themselves cannot be expected to provide the same level of care for their animals.” 

The ordinance does not deal with inhumane treatment, an issue that is touched upon separately in the municipal code. 

Councilmember Dona Spring, who proposed the amendment, moved to shelve the matter until next week, pending discussion between Posner and the city attorney.