Although our City Council on Tuesday, Nov. 7 surprised many of us naïve citizens by reversing its position made two weeks earlier in support of South Berkeley residents, it was less surprising if one examines the council’s history. On many occasions, the council had led Berkeley citizens to believe that it was truly sympathetic to neighborhood concerns over RF radiation from cell phone antennas. They cite for their reason federal law as promulgated in the 1996 Tele-Commun-ications Act which pre-empts the city from being able to defend its citizen on the basis of health concerns.
This issue was taken up once more Tuesday evening at a packed public City Council meeting. Beginning at 5:15 p.m. the council met in closed session, in part, to develop its plan for presenting its capitulation to the phone companies on this issue. Attorneys, led by Manuela Albuquerque and Kirk Trost, an outside attorney, had once again pushed the city very hard to agree to Verizon’s terms or else face and lose a very expensive lawsuit. The plan involved deciding that the council would settle the controversy by allowing Verizon and Nextel to install their 11 antennas at 2721 Shattuck Ave. In return, Verizon would drop its lawsuit to eliminate the city’s illegal ordinance. Of course, these companies and any other interested telecom companies would also be allowed to locate many other antennas at the same site in the future.
Berkeley Neigborhood Antenna-Free Union (BNAFU) had been alerted that afternoon that the public might not be allowed to speak on our issue. So I called the city clerk’s office Tuesday afternoon and was told that the mayor could choose to allow us to speak, so I left a message with his secretary that we had, in fact, been told by councilmembers that we would at least be allowed to speak during the public comment period. I also told the secretary that many of our supporters expected to be allowed to speak and that the mayor should definitely be apprised of this fact.
Our public comments at the previous meeting had been so powerful and persuasive, that a motion to uphold the Zoning Adjustments Board (ZAB) received three votes, including those of Max Anderson, Donna Spring and even Mayor Tom Bates. The motion to deny the ZAB received only one vote (Wozniak’s) in its favor.
Our supporters naively went into Tuesday’s meeting believing that we had a good chance of maintaining the council support given to us at the previous meeting. And we came prepared to speak once again, in even greater numbers.
Just before our item was to be discussed on the council’s Nov. 6 action agenda, the mayor contemplated whether or not to allow any public comment. We know this because a city staff member was told by the mayor to approach Verizon and Nextel to ask them if five minutes would be enough time for them to present their case. I was speaking to the Verizon attorney, Paul Albritton, at the time, outside in the hall when he was approached by a city staff member who asked to speak to him privately. When Mr. Albritton returned, he reported to me that he had been asked by this city staff member if five minutes would be enough for Verizon to present its case. He said to me that he told the staff member that Verizon did not need any more time. They had finished presenting their case, and he was going to go find the Nextel attorney. These comments also happened to be overheard by others standing nearby.
Unfortunately and unfairly, this staff member had not approached any member of BNAFU with a similar proposal to arrange to hear our comments on this agenda item. In fact, none of our supporters were allowed to say a word on the antenna proposal during the entire meeting.
When the antenna item did come up for discussion, Councilwoman Maio immediately asked for a report from Manuela Albuquerque’s outside “independent public interest” attorney Kirk Trost. He proceeded in a very clear, detailed and prepared speech to tell the council what the city’s attorneys had pounded into council members in closed sessions over the previous four weeks.
After this speech, despite the protests of audience members wanting to respond, the “discussion” was closed, and the council quickly voted to reject the ZAB decision and grant Verizon and Nextel their permits. This muzzling of our free speech was totally unjust, in light of the mayor’s offer of speaking time to Verizon and Nextel.
The council’s rush to a quick decision with no public comment swept under the rug many critical issues that had been raised at the public council meeting of Oct. 23:
1. Ms. Richie Smith, a member of the City Commission on Aging had reported that loud noise emanating from the cell antenna equipment at her church, next to her home in South Berkeley, was still keeping residents awake at night. This problem continued after Ms. Richie and neighbors had reported the problem to the city some time ago and after the city documented that the noise level was exceeding legal limits. City staff had reported on Oct. 23 that they had not been aware of a continuing problem, and that they would solve it. Ms. Richie told us on Tuesday that as of Nov. 6, no action had been taken to remedy the problem. She was not allowed to speak because there was no time allowed for any public discussion on Nov. 6.
2. On Oct. 23, BNAFU had asked that if the permit were to be granted, we needed to know that Verizon and Nextel would pay for an independent engineer to measure RF radiation levels in the area immediately surrounding the proposed site on Ward and Shattuck. We proposed that these measurements be taken before and after antennas were installed. We suggested that the University of California could assist in this effort. No councilmember insisted on this basic neighborhood protection.
3. We had asked city staff many times previously, and the council itself on Oct. 23, how many Verizon and Nextel antennas are currently located at each Berkeley site. We never received that needed information. But there was no time allowed to answer this question on Nov. 6.
4. Our neighborhood has no guarantee that more antennas will not be located at this site by other cell phone companies. We had suggested that the owner of the property, Patrick Kennedy sign a document binding him and any future tenant to limiting the number of antennas to those agreed upon as a result of this settlement. No council member even bothered to raise this concern on Nov. 6.
5. On Oct. 23, we told the council that we must fix our ordinance so that it complies with the law. We proposed that the council agree to revise the current ordinance governing the installation of antennas to conform to current court rulings on the matter, so that in the future our ordinance will stand up to legal scrutiny. Until such time that we have a legal ordinance, should we not have a moratorium on further antenna installations?
On Nov. 6, the council clearly was in a big rush to satisfy Verizon’s demands and disallow our participation. It gave what little control it does have for mitigating the damage done by its previous 8-1 decision to institute a cell antenna ordinance completely out of whack with the law. The council then compounded that error by disregarding all of the other important concerns that the community had raised at the Oct. 23 City Council meeting.
Thankfully, this struggle is not over. In fact, we have not even begun to fight.
Michael Barglow is a South Berkeley