The City Council disagreed, voting 4-1 to approve the tower, with Margaret Abe-Koga opposed. Mayor Jac Siegel recused himself because he owns a home nearby, while Vice Mayor Mike Kasperzak recused himself partway through the meeting when he realized that Sprint, which he owns stock in, owns 51 percent of Clear Wire.
Councilwoman Laura Macias said that the zoning code paragraph in question may not be clear or "elegant" but it is "adequate."
The Council also decided to clarify the zoning code to show that WiMAX and cell towers are legal in residential areas, a process which will take several months.
City Attorney Janie Quinn said it was the council's "quasi-judicial role" to figure out how a "reasonable person" would interpret the code. The council had the option to interpret the zoning code the way neighbors have and reject the tower's application, said Zoning Administrator Peter Gilli.
In the appeal of Gilli's approval of the tower last year, opponents noted that "communication facilities" were listed as an allowed use in commercial zones, but not in residential zones. They believed that was enough to make the tower illegal.
But the zoning code also says that "land uses not listed in a particular zoning district are not allowed in that district except where otherwise provided by section D," which is a paragraph that caused further disagreement.
The question was whether Section D's final sentence allowed the WiMAX tower: "Satellite and cellular telephone antennas are subject to Section A36.52 (Design Review) in those zone districts requiring such review for new structures."
Opponents said it clearly did not, but council members disagreed.
Council member Ronit Bryant said she had asked several people to read Section D to gather opinions on its clarity, and she came to the conclusion that it was clear enough that such towers were allowed.
Abe-Koga was the only member who appeared to support neighbors, saying, "I get it," about their concerns.
Quinn said existing towers in residential area would be considered "legal nonconforming" if the council decided to interpret the zoning code the way neighbors had. The city has approved six cell towers in residential areas since 1996, including several at Saint Francis High School. Over 100 others are in commercial and industrial pockets throughout the city, Gilli said. There are also over 100 Google WiFi antennas on light poles in residential areas.
Everyone at the meeting agreed that the language in the zoning code was outdated. "I know a piece of broken code when I see it," said one neighbor who is an attorney.
It refers to satellite dishes and cellular towers, but makes no reference to newer technologies. Gilli said it was fair to interpret it as allowing the WiMAX tower, which is "functionally similar" to those listed.
While the neighbors and city officials argued over what the zoning code, the real concern for many is that such a tower may have radiation-related health effects on the neighborhood, 200 feet away, and the Little Acorn preschool that houses 70 children at the church, only 50-75 feet away. Even if that were untrue, such fears would lower property values, neighbors said.
But health effects were not discussed Tuesday because the Federal Communications Commission does not allow the city to reject a cell tower for concerns over radiation, unless radiation levels are demonstrated to be over FCC limits. A study by applicant Clear Wire showed that radiation would be well below those limits, and city officials said they see no reason to doubt that study.
As a concession, Clear Wire has promised to monitor radiation levels before and after the tower is constructed, and parents of children at Little Acorn preschool, which is subsidized by the church, would not be financially penalized if they decided to withdraw their kids.
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