Berkeley Delays Decision On Antennas
Tri-Valley Herald
Journalist: Martin Snapp
October 26, 2007
Caught in the middle of a dispute between wireless companies citing federal law and neighbors citing health worries, the Berkeley City Council this week put off a decision on whether to grant Verizon and Nextel permission to install 11 new cell phone antennas on a Shattuck Avenue building.
The lawmakers were faced with three choices: Affirm the original ruling by the Zoning Adjustments Board to deny the telecoms use permits; overturn the ZAB ruling; or send the matter back to the ZAB for further consideration.
But they were unable to muster a majority for any of these alternatives.
If they can't break the impasse Nov. 6, the original ZAB ruling will stand.
The ZAB rejected the antennas because of neighbors' concerns that emissions from the antennas pose possible health risks.
"There is growing evidence, particularly from reputable labs in Europe, that show that RF radiation from antennas is carcinogenic," Laurie Baumgarten of BNAFU, short for Berkeley Neighborhood Antenna-Free Union, said before the Council meeting.
But City Attorney Manuela Albuquerque and Kirk Troste, a telecommunications law attorney who is advising the city, said federal law forbids cities from denying use permits to telecom companies because of health reasons.
The 1996 Telecommunications Act reads, "No state or local statute or regulation may prohibit the ability of any entity to provide any interstate or intrastate telecommunications service."
Hanging over
the debate was a threat by the telecom companies to take the city to court if their appeal is turned down.City staff had urged the Council to overturn the ZAB decision to avoid such a suit, which, they said, the city would probably lose. Costs of such a losing effort could top $250,000.
Karl Reeh, president of the Le Conte Neighborhood Association, suggested the city order the telecoms to piggyback the new antennas on existing sites a few blocks away from the U.C. Storage building, owned by developer Patrick Kennedy, at 2721 Shattuck Ave.
But Troste said the 1996 Telecommunications Act forbids that, too.
"Under both federal and state law, you cannot order them to use an alternative site," he said. "You can ask that they consider alternatives, but the record before you shows that they did consider alternatives."
Tuesday's debate grew unruly at times, with critics of the antenna proposal hooting, shouting down Nextel and Verizon spokesmen and refusing to relinquish the microphone when their speaking time was up.
"You people are making it very difficult to side with you because of the way you're behaving," Mayor Tom Bates admonished them. "If you can't conduct yourselves in an orderly manner, I'll have to clear the room."
"Then arrest us!" shouted a woman who gave her name as Charlotte.
But Bates overcame his distaste for their behavior, voting to uphold the ZAB ruling and let the city take its chances in court.
"This intimidation just repels me," he said, "but I think Berkeley does need to stand up and I think we need to fight this."
Councilman Max Anderson grumbled about the feds preempting the city's authority, calling the preemption "a power grab by the Bush administration."
But Gordon Wozniak countered, "I'd like to remind everyone that the Telecommunications Act was passed during the Clinton-Gore administration."