Neighbors worried about cell phone antenna radiation and angry at city officials who have allowed it in their neighborhoods poured out their frustrations at the Berkeley Planning Commis-sion meeting last week.
Planning commissioners listened, questioned, then decided to hold off on any decision for another two weeks—in part because of a recent federal appellate court ruling.
But whatever the commission decides, Deputy Planning Director Wendy Cosin said she is obliged to make a recommendation to the City Council in January.
That deadline was imposed in the settlement of a lawsuit brought against the city 15 months ago by Verizon Wireless, which obligated the city to consider—but not adopt—amendments to the existing ordinance by mid-January.
And while angry neighbors around two antenna concentrations along Shattuck Avenue in the Gourmet Ghetto on the Northside and in South Berkeley are following developments with fierce concentration, a city councilmember and Berkeley’s most prominent local developer are awaiting grilling under oath.
The federal Telecommuni-cations Act of 1996 bars states and localities from enacting laws that prohibit the provision of telecommunications services, including cell phones, so the question becomes just what limits a local government can apply.
Wireless carriers, including Sprint and T-Mobile, are pressing the city to adopt regulations proposed before a ruling by the Ninth Circuit of the U.S. Court of Appeals on Sept. 11, which gave municipalities greater control over the location of cell antennas.
Nick Selby, outside counsel for Sprint Nextel, urged planning commissioners to adopt the regulations drawn up before the court’s ruling in a lower court case brought by Sprint and Pacific Bell Wireless against San Diego County. “If I were a betting person, I would not be surprised if the decision” in the Ninth Circuit were appealed, he added.
If commissioners don’t make new recommendations, Cosin told them, she’ll give the City Council the earlier version of the revisions they had approved before the recent court ruling gave them—at least for now—more discretion over placement.
Commissioners Gene Poschman and Patty Dacey made it clear early in the meeting that they favored regulations that tightened control on the carriers and restored the discretion of the Zoning Adjustments Board (ZAB) to deny permits through findings of detriment.
“We had general discretionary findings” in earlier regulations, Poschman told Selby, “but we took it out because of the district court decision” which was later reversed by the higher court, “and you were very happy and didn’t tell us to wait until the Ninth Circuit” had acted on the appeal.
“But now you want us to make do with the original language that was reversed” in the San Diego case, said Dacey.
Selby said that providing for a finding that a permit application can be denied because it is detrimental to the general welfare—one of the grounds cited in the original regulations developed by the Planning Commission—“is such a formless, standardless concept that the people behind me”— referring to the members of the public who had come to push for stronger regulations—“would say no cell site should be approved.”
But Poschman responded that in the 16 years he had served on ZAB before coming over to the Planning Commission, “we never made a general finding about detriment to general welfare.” In each case, he said, specific grounds were cited in the facts and findings used to deny a permit, “and never once about general welfare.”
The Ninth Circuit decision gives jurisdictions more power to regulate antenna placement in particular, which critics have hailed because the previous interpretations of federal law gave local jurisdictions little power to demand that companies spread out rather than concentrate their antennas, so long as the regulations don’t create an outright ban that would deny service to subscribers.
None of the speakers who weren’t there on the payroll of Ma Bell’s progeny had anything favorable to say about the antenna farms sprouting in their neighborhoods.
Harvey Sherback, a neighbor of the French Hotel, the northern Shattuck Avenue cell tower site of choice for one carrier, gave commissioners petitions signed by 65 merchants in the Gourmet Ghetto between Cedar and Rose streets, with world-renowned restaurant proprietor Alice Waters among them.
“They’re asking for this not to happen” he said.
Speaking on the day after the election, he added, “Here comes the Obama era. In the Bush era, the telecoms were basically allowed to write their own legislation. That’s why they’re in such a rush because their backs are up against the wall ... We’re asking you, ‘Don’t put this on a fast track just because of men in suits ... you don’t have to be intimidated by them.”
Sherback and others also complained they hadn’t been notified of the commission’s earlier meetings on the regulations, Planning Commissioner David Stoloff, who has an office on Rose, initially suggested a proposal later adopted unanimously: to continue the hearing for a second session in two weeks to allow critics time to review the proposed revisions and Cosin’s staff report. These documents are available online at www.ci.berkeley.ca.us/WorkArea/linkit.aspx?LinkIdentifier=id&ItemID=29150.
Laurie Baumgarten, who lives within 500 feet of the UC Storage building, is one of a group of neighbors who are suing the city over placement of antennas on that building.
After a protracted battle before ZAB and an appeal to the City Council, councilmembers eventually agreed to the placement of 11 antennas on the building, their presence marked by thick black cables that scale the building’s eastern wall.
“This is not a public hearing,” Baumgarten told commissioners. “This is a joke.”
Baumgarten said that in the three years she had been involved in fighting the placements, she had never received notice of official meetings on the ordinance. But Cosin said Baumgarten’s spouse, Michael Barglow, had been notified.
Other neighbors said they hadn’t been notified either, and in the end a signup sheet was passed through the audience to collect addresses and e-mails for those who wished to be notified of upcoming sessions.
Neither version of the ordinance—the draft prepared earlier before the Ninth Circuit ruling, and the staff revisions included in the report—are likely to please critics, whose real fears are of possible effects arising from living and working near high energy sources of electromagnetic radiation.
Cell companies contend that even when clustered together the towers pose no dangers to nearby residents. Neighbors charge that the current U.S. standards allow far more radiation than permitted in most European countries.
Given that the Berkeley police called out extra manpower to handle the council session where the UC Storage antennas were approved, and the strong fears about the French Hotel placements, the Nov. 19 Planning Commission could prove interesting.
Meanwhile, the lawsuit BNAFU—the Berkeley Neighborhood Antenna-Free Union—filed challenging the UC Storage placements continues, with one councilmember already deposed and more questions in the offing.