Council to Review OK of AT&T Antennas on Solano Cafe

Published Sept. 2, 2013, 11:15 p.m.; updated Sept. 3, 12:33 p.m.

The proposed AT&T cell phone antennas on the Sunny Side Cafe on Solano Avenue in Albany – which won approval from the city's Planning & Zoning Commission in June – will be reviewed by the City Council Tuesday night, Sept. 3.

The meeting agenda includes a public hearing on the issue.

Cell phone antennas have provoked controversy in Albany, much as they have in other Bay Area cities. The array on Solano would be the second one by AT&T Wireless in Albany. The first application – on a three-story office building at 1023 San Pablo Ave. – won approval early this year after five years of discussion and debate and a lawsuit by AT&T. 

The council consideration of the Sunny Side Cafe array was triggered by a request for review from City Councilwoman Marge Atkinson.

City staff recommends that the council uphold the approval by the planning commission, according to the staff report in the council meeting packet.

Lawsuit filed

AT&T filed suit against the city last week, alleging an unreasonable delay in approving the application. (See the Patch article "AT&T Sues Albany Over Proposed Cell Phone Antennas on Solano Ave.")

The staff report said that AT&T was expected to file suit against the city alleging that the city exceeded the "shot clock" time limit for acting on the application under Federal Communications Commission (FCC) requirements. The report also says that AT&T would likely dismiss the case if the council upholds the planning commission's approval.

"It should be noted that the City has made every effort to process this application expeditiously," the staff report said.

The report said approval took time in part because the planning commission had concerns about the original plan to put the antennas in two enclosures on each end of the roof. A revised design from AT&T with the 12 antennas in a single, architecturally integrated enclosure in the center of the rooftop won commission approval in June.

Another stumbling block was that AT&T refused to release confidential information to the city's wireless consultant, licensed contractor Peter Gruchawka, because he is not a licensed engineer, the staff report said.

So the city agreed to hire the RCC consulting firm, which has done third-party review of wireless applications for both Albany and Berkeley, according to the staff report. The firm's review of AT&T proprietary data concluded that a coverage gap exists in the area to be served by the Sunny Side array, the staff report said.

In a July 8 Patch blog post, Heike Abeck said the city's use of RCC Consultants to assist in reviewing the AT&T application constituted an apparent conflict of interest since RCC Consultants has worked for AT&T. The staff report for Tuesday night's council meeting did not address this issue.

In a letter in the council meeting packet, planning commission member Doug Donaldson said he was "disappointed" in Councilwoman Atkinson's call for review, and quoted the reason she gave to the Journal: “I have to support my constituency that feels there is a process that has to be followed, making sure everything is in order.” He said the commission acted properly in a timely manner and urged that the city's complex Wireless Ordinance be simplified.

In a Patch blog post last Thursday, David Sanger said the council review put the city in legal jeopardy again, alluding to the previous suit filed by AT&T over the San Pablo Avenue office building array, and endorsed Donaldson's call to move forward with approval and to simply the Wireless Ordinance.

The staff report said the city spent $51,000 in the previous AT&T lawsuit over the San Pablo Avenue antennas. "If the current application is denied, it is expected that the City will incur substantial costs for outside litigation counsel and also expend staff time assisting with the preparation of the administrative record and court filings," the report said.

A letter in the council packet from April McMahon, who operates a tax preparation service on Solano near the Sunny Side Cafe, said the potential health effects of such arrays in high population areas have not been adequately studied and referred to indications of brain tumors linked to certain radio-frequency waves.

Federal law prohibits local jurisdictions from considering health impacts in wireless antenna applications.

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