Proposed revisions to Berkeley’s wireless ordinance ran into opposition Wednesday night both from neighbors, who branded the proposals as weak, and from phone companies, which said they were too strict.
The proposed revisions were up for a public hearing before the Planning Commission, which ultimately decided to continue the deliberations and take more comment during a second hearing on May 28.
“There’s not an urgent need to adopt” the revisions Wednesday night, said Deputy Planning Director Wendy Cosin at the hearing’s start.
Cosin said the revisions before the commission didn’t stem from a legal challenge to the current ordinance.
But the subject of that litigation, the placement of cell-phone antennas on the UC Storage building at 2721 Shattuck Ave., was very much on the minds of many of those who spoke Wednesday.
Verizon Wireless sued the city in U.S. District Court in Oakland in August, charging that the Berkeley City Council and Zoning Adjustments Board (ZAB) violated the Telecommunications Act of 1996 by denying Verizon permits to mount their antennas on top of the building, which is the tallest in the neighborhood.
The city knuckled under in November, granting Verizon the permits, but the following month Councilmembers directed city staff to prepare revisions to the municipal wireless ordinance.
While federal law specifically bars state and local governments from imposed regulations based on concerns about potential health impacts of electromagnetic radiation from cell antennas, the proposed ordinance would require that companies pay a fee for independent monitoring of the strength of radio frequency emissions from their installations.
Cosin’s written staff report described the changes as “non-substantive,” requiring “minor modifications and aesthetic upgrades to reduce a facility’s size or visibility,” and allowing an over-the-counter administrative use permit for antenna sites in the C-2, M and MM zones (commercial and manufacturing).
The proposal would also eliminate the city’s ability to require cell companies to site their antennas in clusters with those of other companies, eliminate criminal sanctions for violations and end the City Council’s ability to remand appeals of use permits to ZAB.
Cosin said the goal of the revisions was “to ensure an aesthetically pleasing environment and protect the character” of residential neighborhoods while minimizing regulations for areas where installations don’t impact neighborhood character.
The revisions also eliminate references to historical and archaeological resources, which Cosin said are already covered by the city’s Landmarks Preservation Ordinance.
But that wasn’t enough to satisfy Steve Ledoux, an attorney for wireless carrier T-Mobile, which, he said, “doesn’t have a horse in this race.”
Nor was it enough for Paul Albritton, the lawyer for Verizon, who said the revised ordinance “seems to have all the defects” and “red tape” pre-empted by federal law.
Michael Barglow of the Berkeley Neighborhood Antenna-Free Union said neighbors want a moratorium on new antenna installations so that a new ordinance can be carefully drafted, a process he said has begun in Irvine and other cities around the state.
He called the proposal before the commission, drafted by Acting City Attorney Zach Cowan, “unacceptable” because it didn’t consider alternatives now being considered in other cities.
To avoid emissions from powerful antennas, he said, the city should look for lower-wattage installations more generally distributed throughout the city, declaring that high-wattage emitters are concentrated in low-income communities.
Commissioner Susan Wengraf asked Barglow if federal law allowed communities to regulate antenna output. He acknowledged that he wasn’t sure whether ordinances could be so specific, and said he didn’t want to suggest that he was asking that all antennas be low-wattage installations.
Kate Bernier said she was concerned because cell antenna emissions were part of a larger array of radiation sources, including microwave ovens and WiFi installations that provide wireless Internet service.
Steve Martinot, a neighbor of the French Hotel on North Shattuck, where another antenna installation is planned, urged the city to adopt a moratorium and, “to whatever extent we can,” to follow the precautionary principle, in which possible sources of adverse impacts must be proved harmless before they can be approved.
As an alternative, he said, the city should opt for more, lower-wattage antennas.
“You guys should always be concerned about the equity issue,” said Sharon Hudson, who also criticized the ordinance for allowing easier permits for commercial areas that house the city’s larger apartment buildings.
Concerns about impacts on single family homes paled in comparison to the larger potential exposures to apartment dwellers, she said.
Verizon lawyer Albritton encouraged commissioners to continue the discussion but argued against a moratorium. He said the difference in impacts between different wattage installations was small, and called the city’s revised ordinance “overly burdensome. The ordinance needs more work, and I urge you to continue to let it happen.”
Albritton cited a Danish study, which he said showed no increased rate of cancer among cell phone users and which examined 450,000 people over a 20-year period. He told commissioners that federal law requires that they rely on the conclusions of “dedicated federal researchers.”
“So the reality is that the federal government is telling us not to be concerned about health issues?” asked commission Chair James Samuels.
Yes, said Albritton, just as the city doesn’t regulate safety standards for airplanes that fly over the city.
“Yet!” quipped Commissioner Gene Poschman, evoking laughter from the audience.
“Certain areas of the law are taken as a matter of national interest,” said Albritton, who also stressed that a number of customers are giving up wired phones and opting for wireless alone.
Albritton said phone companies look to lower-power, more closely clustered antenna placement as the number of users increased, and said companies don’t site installations in poor neighborhoods “to serve rich people who live somewhere else.”
Instead he said, companies like to place antennas near the users, which is why many of the first installations locally were along the freeway.
In response to a question from commissioner Patti Dacey, Albritton said the reason there weren’t installations in the Berkeley hills was because of city zoning issues, not because companies didn’t want them there.
But from his seat in the audience, Harvey Sherback remained skeptical: “The cell companies are asking for absolution from legal problems from their radiation. This tells me that the cell-phone companies know something.”
In the end, the commissioners voted to put the issue on hold, at least until May 28.