Posted by: Patricia Salkin | December 29, 2009

City May Deny Cell Tower Application in Rights-of-Way Based on Aesthetics

The Ninth Circuit Court of Appeals held that the City did not violate the Telecommunications Act of 1996 by denying permission to construct two wireless telecommunications facilities in the city’s public rights of way, as their decision was supported by substantial evidence, and disputed issues of material fact precluded a finding that the decision amounted to a prohibition on the provision of wireless service.

The Court noted that the California State constitution gives the city the authority to regulate local aesthetics; and “(t)he experience of traveling along a picturesque street is different from the experience of traveling through the shadows of a” tower.  The Court further explained that public rights-of-way may be employed to serve “social expressive and aesthetic functions.” The Court noted that Sprint’s claim that this will allow municipalities to run roughshod over permit applications simply by invoking aesthetic concerns falls short.  Specifically the Ninth Circuit  held that state law “did not relieve municipalities of the constraints imposed upon them by the [Telecommunications Act]…” and that “[a] city that invokes aesthetics as a basis for a [wireless communications facility] permit denial is required to produce substantial evidence to support its decision, and, even if it makes that showing, its decision is nevertheless invalid if it operates as a prohibition on the provision of wireless service in violation of 47 U.S.C. § 332(c)(7)(B)(i)(II).” The Court also noted that Sprint’s radio frequency propagation maps fail to show a “significant gap” in coverage. 

Sprint PCS Assets, L.L.C. v. City of Palos Verdes Estates, 583 F. 3d 716 (C.A.9th  CA. 10/14/2009)  

The opinion can be accessed at: http://caselaw.lp.findlaw.com/data2/circs/9th/0556106pv3.pdf


Responses

  1. Nice post, Patricia. Now imagine two cell towers on top of one another with three spinning blades on top of that, each the length of a cell tower’s height. Now picture 50 or 100 or several hundred of these animated structures in a viewshed – all for a service product that is providing a fraction of the average output of a single fossil fuel facility, and at very high cost, and whose service product ignores timeliness – wholly unreliable compared to it’s peers, and furthermore makes many of those peers work harder to neutralize it’s unwelcome variability, wasting fuel and increasing emissions in the process.

    Now you have industrial wind energy!


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