Wireless Law Rewired, More Work Lies Ahead

By Richard Brenneman
Thursday July 03, 2008 - 09:54:00 AM

Berkeley’s proposed new wireless-antenna ordinance, now in its 15th revision, still faces stiff opposition in a game in which one side holds almost all the cards. 

Planning commissioners who held a hearing on the ordinance last week heard from lawyers for three phone companies, the folks who have the upper hand in the uneven contest between concerned citizens and corporate giants. 

The single biggest public concern raised throughout discussions of the ordinance has been the possible impact of cell-phone antenna radiation on the health of those who are exposed to it. 

But that’s the one issue federal law bans local governments from considering when drafting laws governing antenna placement and power. 

Modern cells phones are miniature radios, which use electromagnetic emissions to send and receive signals. Health studies have yielded mixed results. 

Wendy Cosin, Berkeley’s deputy planning director, said the revisions have been aimed at meeting both federal requirements and residents’ concerns, all while streamlining the application process for cell-phone antennae in districts zoned for commercial and manufacturing uses—and possibly in the manufacturing and light-industrial zoning that is confined to West Berkeley. 

Critics have noted that commercial zoning also includes dense apartment buildings, like those downtown and along Telegraph, University and San Pablo avenues. 

The revisions have also added provisions for so-called distributed systems, which use more broadcast spots with lower power and are often sited on utility or lamp poles. Most of the legally unmentionable health concerns concern the amount of wattage used to power the localized broadcast stations. 

“Are we allowed to regulate the amount of wattage?” asked Commissioner Susan Wengraf. 

“No,” said Cosin, although the City of San Francisco informally has used 24 watts as the cutoff point between regular and distributed antenna power. 

Paul Albritton, a lawyer for Verizon, said Berkeley wouldn’t be allowed to set a regulatory wattage threshold, “but what you can regulate is the size of the equipment and the size of the antennas.” 

He said his client had reached an informal agreement with the city across the bay that allows carriers to show their systems to the San Francisco Zoning Administrator and the city’s public health officer; once approved, the design can then be used city-wide. 

The result is a de facto regulation of wattage because the output is stated in the application, he said. 

“How does going through the health department relate to federal law?” asked Commissioner Patti Dacey. 

“Federal law says local jurisdictions can ensure” that installations fall within federal guidelines, he replied. 

Nick Selby, a lawyer representing Nextel, said he’d been through the Berkeley legislative drafting process before. “I was here in 2001 when the last ordinance was being considered by the commission,” he said. 

He said he’d be happy to work with city staff “come up with a workable definition of microcell,” another name for the smaller distributed system. 

“I encourage you to get it right the first time,” said Joshua Davidson, a lawyer representing T-Mobile. 

Dave Blake, a former member of the Zoning Adjustments Board who sat through cell-antenna permit applications presented to that body, said the proposed new ordinance “is not good law” because it would abolish the use of the remand, by which councilmembers can return unpopular decisions back to lower bodies for reconsideration. 

“Why is the council insisting in this case on getting rid of remand?” Blake asked, then answered his own question by declaring that councilmembers “don’t have the nerve” to order remands in an unpopular cause. 

“It’s very clear to me from reading federal law and the lawsuits that there is no necessity to ban the remand,” said Dacey, one of the commission’s two law-school graduates. “It would be wrong for us to take that tool away.” 

But Harry Pollack, the commission’s practicing attorney, said he felt the latest draft is “on the right course” and congratulated city staff for their efforts.  

Commissioner Gene Poschman said he was perplexed because any antenna placed on Sacramento Street would be directed toward nearby residences, creating “potential for a lot of blowback,” given that they hadn’t been given notice for the hearings on the ordinance. 

Wengraf agreed that easing placement on major streets raised potentially thorny problems. “Marin Avenue, which is residential on both sides, is identified as a major street, but Solano Avenue,” noted for its collection of stores, restaurants and theaters, is not. 

“That doesn’t make any sense to me at all,” she said. 

Chair James Samuels said relying on a map for drafting the ordinance probably wasn’t the right approach. 

Commissioners also discussed the whole notion of motorists using cell phones, given that as of July 1 hands-on cell use is forbidden for drivers, though texting is not. 

Noting that some studies have shown that talking on a cell impairs drivers as much as drunk driving, Dacey said Berkeley needs to facilitate cell-phone use as much as it needs drive-through liquor stores. 

But Jim Novosel, an architect and the commission’s newest member, said many people don’t have “land lines” anymore, including his son’s own household. 

Commissioners voted unanimously to continue the hearing until their July 9 session. 


Southside Plan 

When it came time for comments on the Southside Plan draft environmental impact report (EIR) and the plan itself, Telegraph Business Improvement District President Roland Peterson had little good to say about one key feature of the plan. 

“There are quite a few contradictions in the transportation analysis,” he said, “and quite a number of the recommendations are utopian and impractical.” 

Highest on his list of concerns were proposed traffic changes. The plan calls for converting Dana and Ellsworth streets from their current one-way status to two-way, and for consideration of conversion of Bancroft Way and Durant Avenue to two-way streets, combined with restriction of through-traffic on Telegraph Avenue. 

“We argued from the start for no change in circulation,” Peterson said, calling for the commission to leave the streets alone. 

Jesse Arreguin, a member of the Housing Advisory Commission and a participant in drafting the plan, said the EIR also needs to consider changes in the state density-bonus law enacted since the plan was initially prepared. 

“State and local land-use requirements have changed since the draft plan was adopted in 2003,” he said. The EIR “needs to evaluate the impacts of those changes on the Southside.” 

Arreguin said concentrating more density close to the UC Berkeley campus is beneficial to students, but the plan needs to evaluate the impacts of building heights and increased density on the area. 

Impacts on neighborhood parking should also be considered in greater detail, along with possible mitigations, he said. 

One thing not mentioned in the document is Bus Rapid Transit (BRT), and city planner Elizabeth Greene said whatever plan is adopted by AC Transit for the controversial bus service—including possible lane closures on Telegraph Avenue and Bancroft Way—won’t impact the plan or the EIR process. 

The only exception would be if the BRT route is approved before the Southside Plan. Otherwise, the onus is on the transit agency to study the impacts in conjunction with its own BRT proposal, she said. 

The public comment period for preparing the final EIR on the project closed on June 30.