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Council Fails to Act on Cell Phone Antenna Applications

By J. Douglas Allen-Taylor
Wednesday December 17, 2008 - 07:17:00 PM

Berkeley City Council stumbled (again) on Tuesday over the vexing issue of expanding cell-phone tower facilities in the city, failing to decide on a Verizon Wireless application for 1540 Shattuck Ave. and failing for the third straight meeting to either grant a hearing or dismiss a similar appeal for ZAB approval of a T-Mobile facility at 1725 University Ave. 

Tuesday night’s debate sometimes got a bit testy, with Councilmember Gordon Wozniak—generally a cell-phone antennae facility supporter—appearing to accuse Councilmember Max Ander-son—a committed cell-phone antennae expansion opponent—of grandstanding. 

With wireless communications companies insisting they must steadily increase the number and location of cell-phone tower facilities in Berkeley in order to keep up with the rising demand of cell-phone users, and several groups of neighbors fighting pitched political battles to either limit or keep out entirely such facilities in their neighborhoods, the issue of denial or approval of cell-phone tower applications is becoming an increasingly regular topic at council meetings. 

On the 1725 University Ave. issue, where T-Mobile is seeking to place eight towers and related equipment, councilmembers voted 4-0-3 (Anderson, Susan Wengraf, Kriss Worthington, Mayor Tom Bates, yes; Laurie Capitelli, Darryl Moore and Wozniak, abstaining; Jesse Arreguin, absent; Maio, recused) on Anderson’s motion to grant a public hearing. The motion failed because it did not receive five votes. The issue comes back to the council on Jan. 13.  

If the council can’t muster enough votes to grant a hearing or deny the appeal by then, ZAB approval of the T-Mobile request automatically goes into effect. 

Following the hearing on the appeal of the ZAB approval of the 1540 Shattuck Ave. facility—where Verizon wants to place 10 antennas—council failed on a 2-3-5 vote to uphold the citizen appeal and deny the Verizon application (Anderson, Worthington, yes; Wozniak, no; Maio, Moore, Capitelli, Wengraf, Bates, abstaining; Arreguin, absent) and then failed on a follow-up 3-3-2 vote to approve the Verizon permit (Moore, Capitelli, Wozniak, yes;Anderson, Worthington, Bates, no; Maio, Wengraf, abstaining; Arreguin, absent). 

Some councilmembers who abstained on one of the two votes—therefore insuring an eventual Verizon victory if the council cannot get enough votes to deny the application—said they did so only because they felt hamstrung by the federal Telecommunications Act, which puts tight controls on the discretion local governments can use to deny cell-phone tower applications. 

“A lot of us are very conflicted on this,” Maio said. “I don’t want to keep voting for these things. But we don’t have the money to keep going to court.” 

Bates agreed, saying, “I believe we don’t have any choice. I don’t like it. I hate it. But we have to do it.”  

Bates added that “immediately after the vote we should bring this issue back before Congress. The best way we can do this is to fight it in the right way—in Congress, not in the courts.”  

Noting that it was “not right” that current federal law prevents local governments from considering the possible health detriments of cell-phone towers when considering applications, Bates said he would use his influence with the National Conference of Mayors to advance the Congressional fight to amend the Telecommunications Act. 

But earlier, cell-phone antenna facility expansion opponent Anderson called for court action on the issue, at least by outside parties. 

“This issue is not going away,” Anderson said. “You can’t believe that you’ve beaten us down [because we can’t consider the health aspects of cell-phone towers] and we’re no longer going to be concerned about our well-being.”  

Anderson added that “I hope somebody gets up enough nerve to challenge [the Telecommunications Act] in federal court.” 

Speaking immediately after Anderson, however, Wozniak spoke against denying the Verizon application, implying that such a denial might put Berkeley back in court.  

“The record is very strongly against us,” Wozniak said. “[Our] decision must be based on whether there is a need for this [cell-phone antennae] site.” Saying that the proof presented for such a need by Verizon was “incontrovertible,” Wozniak said that “we have to pick our battles and pick the ones we can win. Grandstanding is popular with the crowd, but it’s irresponsible.” 

Feeling that Wozniak’s words about grandstanding had been aimed at Anderson, Worthington then called the use of the term “inappropriate and out of order,” adding that “Max Anderson has consistently taken a principled stand” on cell-phone antennae issues.  

And when Bates, sitting at the center of the dais between Worthington and Wozniak, turned to Worthington and tried to conciliate, saying “I don’t think it [meaning Wozniak’s remarks] was meant that way,” Anderson snapped, “Are you sure?” 

Meanwhile, while the deadlock in the two cell-phone tower appeals was similar, the results of the 1540 Shattuck Ave. application are a bit more complicated. 

Earlier this month, Acting City Attorney Zach Cowan revealed that following a Verizon federal lawsuit over several Berkeley cell-phone tower facility applications, Berkeley and Verizon had entered into an agreement with Verizon that required a council decision—one way or the other—on the 1540 Shattuck Ave. application by Tuesday night’s meeting. 

Cowan told councilmembers Tuesday night that the council can still act on the 1540 Shattuck appeal when it meets after the turn of the year, but said that the failure to decide on Tuesday left the possibility that Verizon could now immediately return to federal court and press its claims.