The California Supreme Court has denied an appeal filed by T-Mobile West LLC and other wireless companies and upheld a San Francisco ordinance that requires wireless equipment installed in the public right of way to adhere to “established aesthetic guidelines.”
“The city has inherent local police power to determine the appropriate uses of land within its jurisdiction. That power includes the authority to establish aesthetic conditions for land use,” the state Supreme Court said in its unanimous ruling yesterday in “T-Mobile West LLC, et al., v. City and County of San Francisco, et al.,” cases S238001, A144252.
The dispute involves a 2011 ordinance adopted by the city and county of San Francisco “requiring all persons to obtain a site-specific permit before seeking to construct, install, or maintain certain telecommunications equipment known as personal wireless service facilities on existing poles in the public right-of-way.”
In adopting the ordinance, officials pointed out that maintaining San Francisco’s “beauty” was essential to the local economy. And while it didn’t intend to “regulate the technologies used to provide personal wireless services,” it said it needed “to regulate placement of such facilities in order to prevent telecommunications providers from installing wireless antennas and associated equipment in the city’s public rights-of-way either in manners or in locations that will diminish the city’s beauty.”
In 2011, T-Mobile, Crown Castle NG West LLC, and ExteNet Systems filed a lawsuit for declaratory and injunctive relief. They alleged, among other things, that the ordinance was preempted by state utility code and that they were being unfairly treated because other utilities such as Comcast, AT&T, and PG&E had installed equipment on utility poles in the city's public right-of-way without the same prior approval.
The ordinance, according to the plaintiffs, was preempted by section 7901.1, which gives municipalities the right to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed but also provides that the control be “applied to all entities in an equivalent manner.” In addition, the plaintiffs argued that section 7901 grants them the right to “construct lines and erect equipment along public roads so long as they do not obstruct the path of travel.”
The ordinance was largely upheld by the trial court and the California Court of Appeals. In upholding the ordinance, the appeals court said that nothing in section 7901.1 “explicitly prohibits local government from conditioning the approval of a particular siting permit on aesthetic concerns” (09/16/16).
In reviewing section 7901, the state Supreme Court also looked at whether the Legislature intended to preempt local regulation based on aesthetic considerations.
“Under our preemption cases, the question is not whether the incommode clause can be read to permit the city’s exercise of power under the ordinance. Rather, it is whether section 7901 divests the city of that power. We also disagree with plaintiffs’ contention that section 7901’s incommode clause limits their right to construct lines only if the installed lines and equipment would obstruct the path of travel. Contrary to plaintiffs’ argument, the incommode clause need not be read so narrowly,” the court writes.
The court added that the Legislature “made clear that the goal of technological advancement is not paramount to all others by including the incommode clause in section 7901.1, thereby leaving room for local regulation of telephone line installation.”
The court also addressed the plaintiffs’ argument that even if not preempted, the ordinance violates section 7901.1 by singling out wireless telephone corporations for regulation. The court said that the city “treats all entities similarly.” – Carrie DeLeon, [email protected]
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