A city may consider aesthetics in regulating the construction of telecommunications antennas, the Ninth U.S. Circuit Court of Appeals has ruled.
The ruling is the latest in a series of court decisions upholding the authority of local government to decide where wireless antennas are located. And it is one of the most explicit: "California law does not prohibit local governments from taking into account aesthetic considerations in deciding whether to permit the development of WCFs [wireless communications facilities] within their jurisdiction," said the court.
In 2002 and 2003, Sprint PCS applied to the City of Palos Verdes Estates for permits to construct 10 cell phone towers in public rights-of-way. The city approved eight. It rejected one proposed antenna because it would disrupt the residential ambiance and another because it would detract from the natural beauty of a city entrance. Sprint sued, arguing that the denials violated the federal Telecommunications Act of 1996. District Court Judge Alicemarie Stotler ruled in favor of Sprint, but a unanimous three-judge panel of the Ninth Circuit overturned the decision.
As the Ninth Circuit explained, the Telecommunications Act attempts both to "encourage the rapid deployment of new telecommunications technologies," and "to preserve the authority of state and local governments over zoning and land use matters." Under the act, a local government may deny a request to construct a wireless antenna tower if authorized by local law and supported by a reasonable amount of evidence. Stotler had concluded that the city's consideration of aesthetics was not permitted under the state Public Utilities Code (PUC).
The Ninth Circuit said that the statutes in question – Public Utilities Code §§ 7901 and 7901.1 – do not eliminate local governments' constitutional authority to regulate local aesthetics. "Thus," Judge Kim McLane Wardlaw wrote for the appellate court, "the threshold issue is not, as Sprint argues and the District Court apparently believed, whether the PUC authorizes the city to consider aesthetics in deciding to grant a WCF permit application, but is instead whether the PUC divests the city of its constitutional power to do so. Therefore, the question actually before us is whether the city's consideration of aesthetics is ‘in conflict with general laws.'"
After framing the issue in a way favorable to the city, the court examined the statutes. Under § 7901, a company may construct facilities "in such a manner and at such points as not to incommode the public use of the road or highway." The court cited dictionary definitions of "incommode" that include "trouble, annoy, molest, embarrass, inconvenience."
"The experience of traveling along a picturesque street," Wardlaw wrote, "is different from the experience of traveling through the shadows of a WCF, and we see nothing exceptional in the city's determination that the former is less discomforting, less troubling, less annoying and less distressing than the latter."
Wardlaw continued, "[T]he ‘public use' of the rights-of-way is not limited to travel. It is a widely accepted principle of urban planning that streets may be employed to serve important social, expressive and aesthetic functions. … These urban planning principles are applied in the city, where the public rights-of-way are the visual fabric from which neighborhoods are made."
As for Section 7901.1, the court noted that the statute permits municipalities to control the "time, place and manner" in which rights-of-way are accessed. Aesthetic regulations are time, place and manner regulations.
So the question turned on whether the city had relevant evidence to support its decisions. The court said the city did, citing maps, mock-ups, a staff report on aesthetic values, public comments and a presentation from Sprint.
Sprint pointed to provisions of the Telecommunications Act that prohibit regulation from creating a  "significant gap" in wireless service. The District Court judge had found such a significant gap. But the Ninth Circuit noted that Sprint has 4,000 customers in Palos Verdes Estates and that a city "drive test" determined Sprint's network was functional.
In rejecting the argument that the federal supremacy clause preempted the city's ordinance, the court alluded to the decision in Sprint Telephony PCS, L.P. v. County of San Diego, 543 F 3d 571 (9th Circuit 2008). In that case, the court held that a company must prove that local regulation actually prevents telecommunications services (see CP&DR Legal Digest, October 2008).
The Case:
Sprint PCS Assets LLC v. City of Palos Verdes Estates, No. 05-56106, 2009 DJDAR 14841. Filed October 14, 2009.
The Lawyers:
For Sprint: John J. Flynn III, Nossaman, (949) 833-7800.
For the city: Scott Grossberg, Cihigoyenetche, Grossberg & Clouse, (909) 483-1850.