A group of South Berkeley residents won a close victory Thursday when the Zoning Adjustments Board (ZAB) voted 5-4 to reject a use permit application by Verizon Wireless and Nextel Communication for 11 cell phone antennas atop the UC Storage building at 2721 Shattuck Ave., following a second remand from the City Council in May.
The decision, which came close to midnight, stated that ZAB was “unable to make the necessary finding based on substantial evidence that the towers were necessary to provide personal wireless service in the coverage area, since service is currently being provided and since no evidence has been presented that existing service is not at an adequate level.”
The proposal, which was first remanded to ZAB by the City Council on Sept. 26, 2006, had raised health concerns among the neighbors.
Citing the Telecommunications Act of 1996, which prohibits local governments from rejecting wireless facilities based on health concerns as long as the stations conform to Federal Communication standards, the council had asked ZAB to make a decision based on third-party engineering review, parking concerns and illegal construction instead of health.
ZAB voted 6-3 to deny the construction of 18 cell phone antennas at the Jan. 30 board meeting. Both Verizon and Nextel appealed to the City Council and a public hearing was held in May.
City attorney Manuela Albuquerque sent ZAB a confidential memo before the hearing last Thursday which said that a rejection of the Verizon application would be a violation of state and federal law.
Board member Terry Doran, who voted for the project, inadvertently disclosed the contents of the memorandum to the public while speaking about the application.
Corey Alvin, applicant for Nextel Communications, and a former member of the Berkeley Planning Department, told the board that Nextel had been receiving complaints from its customers.
“What bothers me is the placement of the towers,” said board member Sara Shumer. “How can you [speak about] the necessity of one area when there are other areas which have insufficient coverage?”
“The way the service providers decide to build antennas on a particular site is through customer complaints,” Alvin said. “Alta Bates and the Berkeley Unified School district use our phones and call us about dropped calls and unclear reception. ... We need coverage in the commercial corridors of Shattuck Avenue. If we are not receiving complaints from people in the hills it’s because they are not using our service up there.”
Board vice chair Rick Judd asked him why the antennas couldn’t be scattered on the roofs of schools and businesses that had poor reception.
“That’s not the case at all,” Alvin replied. “There is lots of criteria for an appropriate site ... including adequate height and willingness of the landlord to rent out a place.”
The UC Storage building is owned by Patrick Kennedy, one of Berkeley’s largest developers.
“Money isn’t involved in this?” asked board member Jesse Anthony.
“I am not sure I understand your question,” Alvin replied.
Verizon also cited outreach done through postcards sent to Berkeley residents to be returned to demonstrate local support of the proposed towers.
“We are trying to show that there are people in Berkeley who support this,” said Paul Albritton, counsel for Verizon Wireless.
“There really is hard evidence which shows that down the line cell phone lines will not work when there is a congestion.”
Michael Barglow, a South Berkeley resident, said he analyzed the data contained in the postcards that had been submitted as evidence for the need for cell phone antennas and came to a different conclusion.
“Out of the 96 postcards, 50 percent complained about service in the Berkeley hills and North Berkeley,” he said. “40 percent listed no problem. Only ten postcards mentioned any part of South Berkeley. And these complaints could have come from multiple sources, not including cell phone antenna-related issues, for example, a need for a software upgrade or the need for a newer phone.”
Laurie Baumgarten, another resident, said that community members would not be intimidated by the phone corporations or their lawyers.
“It is obvious to most of the people I speak with that the Telecommunications Act of 1996 is unconstitutional,” she said. “It makes it likely that a neighborhood will lose its legal case if it brings up health issues. If having to pretend and testify that the emperor is wearing clothes when he is really naked is not a muzzling of my free speech, then what is? We need Thurgood Marshalls in charge, not Manuela Albequerques.”
“DDT has been around for a long time and it took us a long time to figure out what it did to us,” said ZAB member Anthony. “I cannot vote for this when is community living in the neighborhood are not fine with it.”
Board member Bob Allen described the opposition to the towers as generational.
“The city is behind other cities in the Bay Area,” he said. “The popularity of landlines has decreased since 2005. The number of cell phone users has gone up from 2.7 million to 3.1 million. The age group that is using the phones is moving very fast. The city is going through a major change and Berkeley is not keeping up with it.”
“I don’t believe there is any need to watch dogs on skateboards from YouTube,” said area resident Tim McGovern, citing a recent iPhone ad. “Increased cell phone service is not at all necessary in our neighborhood.”
If Verizon and Nextel appeal ZAB’s decision, the City Council will discuss the issue later this month and decide on a date for a public hearing in September.
ZAB found the U-Haul business at 2100 San Pablo Ave. in violation of its use permit and recommended to the City Council that the permit be revoked.
U-Haul was granted a permit in 1975 to operate a truck and trailer rental business which allowed it to store 20 trucks and 30 trailers on the lot.
According to the staff report, U-Haul has consistently violated its permit by storing more than 20 trucks on its lot and has also used on-street parking spaces to store its trucks.
Complaints to ZAB from neighbors include parking violations, trashing and rash driving by U-Haul employees.
U-Haul contends that the use permit does not limit it to storing 20 trucks on the site or prohibit it from using the public right of way to store the excess trucks.