Planning Commissioners Michael Dawkins and Melanie Mindlin said they felt legally forced to vote in favor of AT&T's proposal to put 12 cell antennas on the Ashland Street Cinemas roof — but they could not ethically do so, because they are concerned radiation emitted from the antennas could harm people's health and cripple business in the area.
Planning Commissioners Michael Dawkins and Melanie Mindlin found themselves conflicted between the law and their beliefs Tuesday night as they faced a vote on whether to approve plans to install 12 cell antennas on the roof of Ashland Street Cinemas.
The commissioners said they felt legally forced to vote in favor of AT&T's proposal, but they could not ethically do so because they are concerned radiation emitted from the antennas could harm people's health and cripple business in the area.
So Dawkins and Mindlin walked out of the meeting, as most of the 50 people in the audience at the Civic Center applauded.
The federal Telecommunications Act of 1996 prohibits cities from using potential health risks as a criterion in determining where antennas can be placed. If AT&T believed health concerns about the antennas had swayed the commission's vote, the company could file a federal lawsuit against the city, said City Attorney Richard Appicello.
The law has pitted environmental and health advocates against AT&T and city officials trying to avoid a lawsuit.
Owners of the Hidden Springs Wellness Center, which neighbors the antenna site, said they will appeal the Planning Commission's 5-1 approval of the proposal Tuesday night. More than 300 people wrote letters to the commission opposing the antennas.
"People are frustrated by the commission, because it seemed like they really wanted to turn this thing down and they didn't feel they could because of what the city attorney was saying," said Rod Newton, who owns the wellness center with his wife, Brooks.
The commissioners spent about an hour questioning Appicello and city planners, apparently trying to determine what criteria they could use to vote against the proposal.
Appicello repeatedly warned the commissioners about lawsuits the city could face if they based their decision on the potential health effects of the antennas.
On Wednesday Appicello said he wasn't suggesting the commission members vote a certain way; he was simply offering legal advice on the issue.
"I give legal advice. I don't make the decision," he said.
Mindlin said Wednesday that she "absolutely" felt forced by Appicello and city planning officials to vote in favor of the proposal.
"I would say that between (Appicello) and the city staff, they very definitely told us that we couldn't vote in violation of the federal law," she said.
Dawkins said he felt similarly. "It was a pretty forceful suggestion to say the least," he said. "(AT&T's case) seemed to me just basically bulletproof because of the federal law."
Mindlin said she didn't want to get the city engaged in a lawsuit, but she also didn't want Ashland residents to face potentially harmful radiation from the cell antennas.
"I don't want the city of Ashland to have a lawsuit, but I do think that irreparable harm will be done (if the antennas are installed) and I don't think we should do it," she said.
Mindlin and Dawkins believe the Telecommunications Act should be repealed or changed, because it ties the hands of cities in regulating radiation emissions, they said.
"The only reason we weren't acting on it was because of a law passed by the federal government 14 years ago when we didn't know anything about cell phones," Mindlin said. "And now there are all these studies about the harmful effects."
AT&T has said the antennas would meet Federal Communications Commission radiation regulations. A company spokesman also said the government has received no quantitative data showing that radiation from properly placed antennas causes cancer or is otherwise harmful.
The company declined to comment on Tuesday's decision and the Newtons' plans to appeal it, but did release a statement about working "closely with local government to bring advanced wireless technology to consumers."
Commissioner Debbie Miller voted against the proposal because she didn't feel AT&T had made a compelling case about why it had to locate the antennas on the cinema, instead of at the Holiday Inn Express, where other cell companies' antennas are located, she said.
A city law "encourages" cell companies to co-locate their antennas "when possible," but City Attorney Richard Appicello said the law could be difficult to enforce because the language is unclear.
On July 13 the commission will vote a second time on the proposal, this time to approve official documents, typically a rubber-stamp procedure. The Newtons then will have 13 days to file an appeal with the City Council, Appicello said.
Dawkins said the case could become a pivotal one, should the council decide to fight the Telecommunications Act.
"I think it would be fairly silly for the City Council to take it all the way to the Supreme Court, but that's where it could go," he said.
Contact reporter Hannah Guzik at 541-482-3456 ext. 226 or firstname.lastname@example.org.