Posted by: Patricia Salkin | October 11, 2016

CA Appeals Court Finds Portions of Ordinance that Authorized Consideration of Aesthetics in Telecommunications Case Were Not Preempted by State Law

Plaintiffs T–Mobile West LLC, Crown Castle NG West LLC, and ExteNet Systems LLC filed an action for declaratory and injunctive relief from Ordinance No. 12–11 (“Wireless Ordinance”), which required Plaintiffs to obtain a wireless facility site permit from the City’s Department of Public Works (“DPW”) before installing or modifying any wireless facility in the public right-of-way. The Ordinance required a showing of technological or economic necessity for permit approval and created three “Tiers” of facilities based on equipment size. The court ruled in favor of Plaintiffs on their fifth cause of action, holding that modification provisions of the Ordinance and DPW regulations violate section 6409 of the Middle Class Tax Relief and Job Creation Act. As to Plaintiffs’ third cause of action, the trial court found portions of the Ordinance, conditioning issuance of a permit on economic or technological necessity, were preempted by section 7901; however, the court held the Ordinance’s aesthetics-based compatibility standards were not preempted by sections 7901 or 7901.1.

On appeal, Plaintiffs contended the Legislature preempted local regulation by giving Plaintiffs the right to install telephone lines in the public right-of-way “in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters.” Plaintiffs also argued the Ordinance violated the “equivalent treatment” requirement of section 7901.1, subdivision (b), because only wireless providers were required to obtain site-specific permits to install their equipment within the right-of-way. The court found that the exercise of local planning discretion was not used to prohibit the use of the public rights of way, or to abridge any state-conferred rights of telephone corporations, but rather to harmonize the interest and rights of them with cities’ and counties’ other legitimate objectives. Since Plaintiffs could not meet their burden on a facial challenge by suggesting the City may apply the Ordinance so as to prohibit their use of the right-of-way altogether, the court turned to Plaintiffs’ second argument that section 7901 implicitly prohibited any local government regulation of wireless facility aesthetics.

Plaintiffs’ position was that “incommode” meant only physical obstruction of travel in the public right-of-way. The City, contended that the dictionary definition of “incommode” was broader and included “inconvenience, discomfort, and disturbance beyond mere blockage.” The court found that Plaintiffs’ argument rested on the faulty assumption that “use” of a public road means nothing beyond transportation thereon. It noted that public use of the right-of-way was not limited to travel and that streets “may be employed to serve important social, expressive, and aesthetic functions.” Accordingly, the court found “incommode the public use” meant “to unreasonably subject the public use to inconvenience or discomfort; to unreasonably trouble, annoy, molest, embarrass, or inconvenience; to unreasonably hinder, impede, or obstruct the public use.” Furthermore, if Plaintiffs were denied a Wireless Permit they could pursue an as-applied challenge. As such, the court held that the trial court did not err in determining the Ordinance was not facially preempted by sections 7901 and section 7901.1.

Plaintiffs also argued that the Ordinance directly conflicted with section 7901.1, subdivision (b), because the City “has singled out wireless equipment” by requiring providers of commercial mobile services alone to obtain site-specific permits while “ignoring the aesthetics of identical equipment installed by other right of way occupants.” The court interpreted section 7901.1 as affirming and clarifying a subset of the local government powers, reserved under section 7901, to regulate telephone lines in the right-of-way. Thus, even if the meaning of “all entities” was not limited to telephone and telegraph corporations, Plaintiffs failed to meet their burden in showing the Ordinance was preempted because section 7901.1 applied only to construction itself. Moreover, with respect to temporary access to the right-of-way for construction purposes, the record indicated that the City uniformly required AT & T, Comcast, PG & E, and Plaintiffs to obtain temporary occupancy permits to access the right-of-way during construction.

T-Mobile West, LLC v. City and County of San Francisco, 2016 WL 4917173 (CA App. 9/15/16)

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