Posted by: Patricia Salkin | January 22, 2014

9th Circuit Court of Appeals Hold the TCA Does Not Apply to Municipal Measure Requiring a Proposition Vote for Construction on Public Property Over a Certain Dollar Amount

The City of Huntington Beach, California (City), appealed a lower court decision that allowed Omnipoint Communications (T-Mobile) to construct a mobile telephone antenna on city-owned park property. The debate centered on the scope of controlling legislation: the Telecommunications Act of 1996 (the TCA).

Considering the intended breadth of the TCA, the Ninth Circuit Court of Appeals looked to Congress’s purpose in enacting the legislation. To that end, the court acknowledged that the general purpose of the TCA was promoting the development of telecommunications technologies. Of particular import, 47 U.S.C. §332(c)(7) sought to strike a balance between competing interests, reducing local impediments to technological advancement, while preserving local zoning authority and minimizing state interference with local land use decisions. To reconcile these disparate interests, the court considered the nature of local police power.

According to the court, local land use decisions fall into two categories: zoning the use of property generally, and applying land use rules adjudicatively to regulate individual property uses. In the first instance, as related to wireless communication facilities, Congress sought to preserve local authority by crafting legislation that “closely mirror[ed]” state laws–giving deference to local instrumentalities as to placement, construction, and modification of such towers. However, the “preservation principle” of police power is subject to several limitations as per the TCA. For example, §332(c)(7)(B)(i) prohibits local governments from discriminating among providers of functionally equivalent services. Another example, s332(c)(7)(B)(iv) prevents state and local agencies from regulating cell towers on the basis of environmental impact caused by radio frequency emissions. Finally, as to the second category of local land use decisions, the TCA governs adjudicative decisions by establishing procedural requirements that local governments must comply with in evaluating individual cell site applications. These procedures include a mandate that duly filed request must be processed within a reasonable time, as well as a requirement that decisions must be issued in writing and supported by “substantial evidence.”

For the court, these substantive and procedural limitations clarified the scope of the TCA’s preemptive effect. In this way, the TCA was atypical because, as opposed to expressly preempting state law, the TCA began with a “savings clause ” and then made the preservation of local authority subject to exceptions. Yet, although Congress’s approach was in a reversed order, the court nevertheless found that the ultimate effect was the same. The court concluded that, generally, local zoning decisions are not preempted unless the local authority has violated §332(c)(7) by either passing an inconsistent regulation, or by issuing adjudicative decisions without meeting the minimum requirements laid out in the TCA statute. Having established the legal framework for analysis, the court then considered the facts of the instant case.

The court began by noting that the City’s plenary authority to control municipal property under California law has been limited by an amendment to the Huntington Beach city charter, known as “Measure C.” Passed in 1990, Measure C states that no structure costing more than $100,000 may be built on or in any park or beach unless authorized by a majority of both the City Council and electors voting on such a proposition at a general or special election. The initiative was designed to give Huntington Beach citizens a direct vote in any future commercial development and to keep public lands “out of the reach of developers and special interest groups.” The court noted that the City was also obliged to follow its own regulatory provisions in rendering the decision vis-à-vis T-Mobile. However, by requiring the issuance of written decisions that included the basis for approval/denial, and by offering an appeals process, the court found that the City’s administrative processes fulfilled minimum procedural requirements.

In July 2007, T-Mobile submitted two applications to construct wireless antennae. The City’s Planning and Building Department approved both and issued permits to T-Mobile. Shortly thereafter, T-Mobile began negotiating with the City to lease space for the antennae in Harbour View Park and Bolsa View Park. In January 2009, the City Council unanimously approved Site License Agreements for both locations. T-Mobile then applied for building permits, its last hurdle to beginning construction.

In its building permit applications, T-Mobile reported that the “total construction valuation” for the antennae were $80,000 and $60,000, respectively. These permits were issued in April 2009. However, after construction commenced at Harbour View Park, and in response to aggressive protests by local residents, the City discovered that actual construction costs would substantially exceed $100,000 for each antenna. As a result, the City Attorney sent T-Mobile a letter stating that, although the City continued to recognize the Site License Agreements, the actual construction costs required the City to suspend T-Mobile’s building permits until a proposition could be voted upon in accordance with Measure C.

T-Mobile filed a complaint in federal district court and moved for a preliminary injunction, arguing that the TCA barred application of Measure C. The City filed a motion to dismiss on the basis of the market participant doctrine. The district court denied both motions because T-Mobile had not demonstrated a likelihood of irreparable harm and Measure C limited the City’s authority, both in form and substance.

The City and T-Mobile then filed cross-motions for partial summary judgment. The district court denied the City’s motion and granted T-Mobile’s motion in part, reasoning that the voter approval process required by Measure C was inconsistent with the procedural requirements of the TCA and therefore could not be used as a basis for delaying T-Mobile’s applications. The court then gave the City sixty days to either grant or deny T-Mobile’s permit applications. In August 2010, the City Council revoked both of T-Mobile’s permits.

In March 2012, a separate action between the parties resulted in a settlement as to construction of the Harbour View Park antenna. Considering the Bolsa View antenna on appeal, the Ninth Circuit Court grappled with the threshold question of whether Measure C is the sort of land use regulation that should be subject to TCA preemption.

On its face, the court decided that Measure C was not the sort of local decision-making mechanism subject to the limitations of the TCA because it neither distinguishes between public and private property, nor imposes design or use restrictions on the different property classifications. Measure C simply provides a mechanism, through the voters, to decide whether or not to allow construction on City land. Thus, the TCA’s substantive limitations were inapplicable.

Next, the court held that Measure C does not fulfill an adjudicative function and is therefore exempt from the TCA’s procedural constraints. This was because determinations of the City’s voters are not subject to appeal and operate exclusive of the City’s administrative procedures. Put another way, the court held that Measure C is not a limitation on the City’s adjudicative function, but instead limits the City’s authority to make use of public property as a landowner would.

Ultimately, the court held that Measure C was not preempted by the TCA and construction on public land is subject to voter approval in Huntington Beach. The TCA applies only to local zoning and land use decisions, not to a municipality’s property rights as a landowner. As a result, the court reversed and remanded the case.

Omnipoint Commuications, Inc. v. City of Huntington Beach, 2013 WL 6486240 (9th Cir12/4/2013)

The opinion can be accessed at:

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