The Berkeley Daily Planet, November 9, 2007


[Rachel's introduction: The city of Berkeley, California abandons its legal commitment to the precautionary principle in order to avoid a lawsuit from an aggressive (and very large) corporation.]

By Judith Scherr

Amidst jeers, catcalls and demands for the mayor's recall and Mayor Tom Bates' threats to clear the rowdy public from the chambers, the Berkeley City Council voted Tuesday to allow two powerful telecommunications companies to place antennas atop UC Storage, a five-story building owned by developer Patrick Kennedy adjacent to the neighborhood at Ward Street and Shattuck Avenue.

Voting to overturn a Zoning Adjustments Board decision to disallow the antennas were Mayor Tom Bates and Councilmembers Laurie Capitelli, Linda Maio, Betty Olds and Gordon Wozniak. Councilmember Max Anderson voted to uphold the zoning board denial and Councilmembers Dona Spring, Darryl Moore and Kriss Worthington abstained.

This reversed an Oct. 23 council action, where only Wozniak had voted to overturn the zoning board decision. The council had a month from the Oct. 23 vote to overturn the ZAB decision.

Anderson, who represents the Ward Street neighborhood and is a registered nurse by profession, told the council that allowing the antennas -- and their possible ill effects -- was tantamount to disavowing a city resolution to follow the Precautionary Principle, which states that if a city policy might cause severe harm to the public, "lack of full scientific certainty about cause and effect shall not be viewed as sufficient reason for the city to postpone measures to... protect human health."

In accepting that policy, the city "accepted the responsibility of safeguarding us against technologies, environmental threats, other kinds of health threats that potentially exist," Anderson said.

The vote came after Kirk Trost, attorney with Sacramento-based Miller Owen & Trost, hired as outside counsel by the city, said publicly what he had been telling the council in closed-door sessions: given the federal Telecommunications Act of 1996, the city could not win its case in court against Verizon.

Based on the Zoning Adjustment Board's denial of the right for Nextel and Verizon to place telecommunications antennas on the roof at 2721 Shattuck Ave., Verizon filed a lawsuit in federal court in August, saying the zoning board decision unlawfully restricts the company.

Trost said he agreed with Verizon and Nextel that the zoning board decision was flawed. There was no evidence in the record to support ZAB's claim that there was a problem with the information provided by the companies concerning their need for the antennas in order to provide adequate capacity, Trost said, noting, "Instead the record in fact contains substantial evidence to support the need for the facility."

Trost further underscored that the Telecommunications Act rules out consideration of adverse health impacts.

City Attorney Manuela Albuquerque told the public at the meeting Tuesday that in addition to her office looking at the question, the city engaged three different outside attorneys, all of whom agreed that Berkeley could not win its case in court.

Maio, who voted with the majority, pointed out that the courts have consistently sided with the telecommunications industry and that the Supreme Court refused to address the question when a case was submitted to it.

Bates, who lives among those protesting the antennas, voted with the majority to support the Nextel/Verizon appeal, reversing his Oct. 23 vote to support the zoning board.

"We need to back up and strengthen our ordinance [on locating antennas]. Our ordinance is terrible," Bates said. "We have made mistake after mistake in trying to appease an angry, upset constituency. We've made mistakes by bouncing it back and forth [between the zoning board and the council] -- we probably shouldn't have done that."

Bates went on to say that if the council went to court, "We're headed for a loss and attorneys' fees. I can't in good faith go in to lose."

The mayor denied the audience time to speak, saying the public hearing on the question had been closed Oct 23. Audience placards, however, sent the massage: "Local control over antennas," "Uphold the ZAB decision," and "People's voice; supreme law."

Spring, who voted with Bates and Anderson on Oct. 23 to uphold the zoning board denial, abstained Tuesday, saying the city didn't have options. "Right now, we don't have an attorney that will even take this case for us," she said.

Capitelli agreed: "We will lose in court. We will lose quickly and cleanly," he said.

Wozniak, who consistently voted to overturn the zoning board decision, said the city could not change the Telecommunications Act. "The right way is to go to Congress and change it," he said.

Anderson stood with his constituents: "Sometimes even when you don't think you can win, you need to fight," he said.