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With the Berkeley City Council scheduled to look at two cell phone antenna facility applications over the next two weeks, the significance of the Berkeley Planning Commission’s failure to agree on changes to the city’s Wireless Telecommunication Facilities Ordinance may become clear. 

Acting City Attorney Zach Cowan advised councilmembers at the council’s Nov. 18 meeting that unlike some of the city’s other permit procedures, Berkeley’s telecommunications ordinance requires the council to consider an application based on the text of the ordinance “at the time of final approval,” not on the basis of the ordinance text which was in effect when the application was filed. 

Berkeley is considering changes to its Wireless Telecommunications ordinance in line with recent court decisions affecting the federal Telecommunications Act of 1996, an act which governs how much leeway local governments have in regulating wireless telecommunications facilities. If the city’s Planning Commission had approved any ordinance amendments at its Nov. 19 meeting, the City Council would have had just enough time to pass those amendments in January to make them applicable to the Verizon and T-Mobile appeal cases when they were finally decided at the council level. 

While the Planning Commission did not approve the staff’s recommended changes, Cowan told councilmembers a day earlier that in his opinion council passage of the proposed changes would not have made any difference in the two pending appeals. 

Most of the staff-proposed ordinance changes would have had no effect on the T-Mobile and Verizon appeals even if the ordinance had been passed in time, including provisions that required yearly written certification by wireless carriers that the facility is being operated “in accordance with the approved local and federal permits” and the striking of a provision that prevented violation of the ordinance to be charged as a misdemeanor or an infraction. 

But one proposed addition to the city’s telecommunication ordinance would have required a finding by the city that any proposed new wireless antenna facility be “necessary to prevent or fill a significant gap in coverage or capacity shortfall in the applicant’s service area, and is the least intrusive means of doing so.” 

The “least intrusive” portion of the proposed new ordinance would have given the city power to reject a wireless antenna facility application if the wireless carrier had a “less intrusive” alternative to provide the same cellular coverage in the area covered by the application. 

While it would appear on the surface that this new regulation would give Berkeley greater leeway in rejecting particular locations for wireless antenna installations, Cowan told councilmembers at the Nov. 18 meeting that he saw no provisions in the proposed wireless ordinance changes that would have had any effect on the pending T-Mobile and Verizon applications. 

Cowan was also of the opinion that a recent United States Court of Appeals ruling in a San Diego case does not significantly increase the powers of local governments over approval of wireless antenna facilities beyond those powers which the governments originally had in the federal Telecommunications Act. 

In 2003, a federal judge prevented the San Diego County from enforcing its recently-enacted Wireless Telecommunication Ordinance, a decision that was later upheld by a three-judge appeals panel. Those decisions were based upon a court interpretation of the federal Telecommunications Act that local governments could not enact ordinances that “might possibly” serve to prevent wireless communications facilities from being built in their jurisdictions.  

But in September of this year, an 11-judge appeals panel overruled those decisions, enacting a stricter standard that said that telecommunications companies must prove that a local ordinance has actually served to effectively prevent wireless communications facilities from being built, not that such an ordinance “might possibly” have that effect. 

The Sprint v. County of San Diego Ninth Circuit Court of Appeal decision has had the practical effect of giving some local governments the feeling they have more leeway in enacting ordinances that govern the building of wireless communications facilities. 

The court decision did not, however, specifically lift restrictions in the federal law on areas of wireless communications facilities that local governments may consider while considering permit applications, such as health concerns. 

At its Nov. 18 meeting, the council deferred action on an appeal from Zoning Adjustments Board approval of an eight-antenna T-Mobile Wireless facility at 1725 University Ave., and set a Dec. 16 hearing on an appeal from ZAB approval of a 10-antenna Verizon Wireless facility at 1540 Shattuck Ave. 

The council will consider the University Avenue appeal again at its Dec. 8 regular meeting. If it fails to take action on a hearing at three consecutive meetings (Dec. 8 being the second), the ZAB approval of the T-Mobile application will automatically go into effect. 

Meanwhile, in its decision to pass consideration of the proposed telecommunications ordinance up to the City Council, members of the Planning Commission said only that they were doing so to meet a deadline imposed by a settlement agreement in a lawsuit between Verizon and the City of Berkeley.  

Planning Commissioners said that they want the telecommunications ordinance issue to come back to them after the first of the year in order to consider more extensive changes in the law than were proposed by staff.