Council Makes Minor Changes to Cell Tower Ordinance

By J. Douglas Allen-Taylor
Wednesday March 11, 2009 - 07:13:00 PM

The Berkeley City Council took a small step this week toward overhauling the city ordinance governing cellphone towers, approving on first reading Councilmember Gordon Wozniak’s substitute motion to adopt a slightly watered-down version of modifications to the ordinance. 

With cellphone use increasing dramatically, the council is caught between requests by cellphone companies for new tower facilities, concerns by citizens about the possible health effects of proliferation of the towers in certain areas, and a federal telecommunications law and federal court decisions that severely restrict the city’s ability to decide where and how many cellphone antenna facilities can be placed. The council is struggling to come up with modifications to the 1996 ordinance that strike some balance among all of the new demands and requirements. 

At Tuesday night’s meeting, the council also directed City Manager Phil Kamlarz to begin the process of setting aside money in the upcoming fiscal-year budget for a complete staff and Planning Commission review of the ordinance. 

The vote on the modified cellphone ordinance was 5-0-3 (Wozniak, Mayor Tom Bates, Susan Wengraf, Laurie Capitelli, Linda Maio yes; Max Anderson, Kriss Worthington, Jesse Arreguin abstain; Darryl Moore out ill for the meeting). 

Among other things, the revisions approved by the council make it significantly easier for cellphone companies to install lower-power “microcell” antenna clusters over the traditional higher-power cellphone towers. The revisions also flesh out the somewhat sketchy requirements in the current ordinance governing how the city determines whether a proposed new cellphone antenna facility is necessary, adding language that says the proposed new facility must 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.” 

At Councilmember Maio’s request, the proposed changes will not include the portions of the original staff draft that would have limited the number of telecommunications carriers in any one location to three, and would have ended the council’s ability to remand a cellphone antenna request back to the Zoning Adjustments Board (ZAB) for further review. 

Maio said that the number of telecommunications carriers on any given antenna site was not the source of community concern, it was the number and power of the antennas themselves. And several councilmembers said they did not want to make a special law for telecommunications carriers only that would prevent Council remand of a permit request back to ZAB. 

Verizon Wireless, which settled a 2008 federal lawsuit with Berkeley over the city’s cellphone antenna facility approval process, called the proposed amendments “an improvement over prior revisions.” But in a letter to Mayor Bates and the council, Verizon attorney Paul Albritton said that the revisions “(do) not address fundamental concerns that Verizon Wireless has raised” and that “there remain significant problems and missed opportunities.” 

Among other things, Albritton said that the current ordinance and proposed revisions “purport to justify burdensome permitting requirements for wireless facilities in residential zones as something other than health concerns.” Federal law prohibits cities and other local jurisdictions from denying the placement of cellphone towers based upon health concerns. 

Meanwhile, another cellphone company representative, Sprint’s outside counsel Nick Selby, had a somewhat more esoteric complaint about the city’s ordinance. Saying that the concerns about negative health effects of cellphone tower emissions “are closer to superstition than science,” Selby then raised the specter of Berkeley’s cellphone ordinance potentially causing the death of patients at some future date who could not contact their doctors about information gained from implanted medical chips. Selby said that he had recently heard a radio report on “new cellphone technology that allows a chip to be implanted in the body for people with severe medical problems. Using your cellphone, you can transmit important medical information to your medical provider that might be lifesaving. It would be really sad if you were this person who had that implant and you could not access your medical provider at a time of emergency.” 

A somewhat wry Councilmember Anderson, who has consistently called for revisions in the ordinance that allow greater city flexibility in regulating cellphone towers, later remarked that “we’ve now come to implantable chips.” 

With the city under the Verizon lawsuit settlement deadline to modify its telecommunications ordinance last January, the Planning Commission sent the proposed revisions to the council with no recommendation, asking that the council give it authority to take a more comprehensive look at the ordinance. 

Councilmember Wengraf, who sat on the Planning Commission during the seven meetings it held on the proposed ordinance changes last year and who seconded Wozniak’s motion to pass the modifications, said that the proposed changes “though not perfect, are an improvement.” Wengraf added, “It’s been well-vetted in the community. We’ve heard from the people here in the audience tonight five or six times, at least, at the Planning Commission.” But Wengraf said that even so, Planning Commission members felt that they were “not well-prepared to make a decision on this. We were not well educated about the science behind all of this.” Wengraf suggested that, when the ordinance is sent back to the Planning Commission for a comprehensive review, it be done “with experts who could guide the Planning Commission.” 

But Berkeley Neighborhood Antenna-Free Union member Michael Barglow, who spoke during the public comment section against council approval of the modifications, said following the meeting, “I think that the council doesn’t know what it’s doing. This is a complex process, and we shouldn’t be taking a piecemeal approach to solving it.” Barglow, who said he supported the comprehensive revamping of the telecommunications ordinance, with the help of experts, said that he and his organization would continue to monitor the city’s ordinance-change efforts.