Court To Decide Antenna Regulation, Damages For Unconstitutional Zoning

The California Supreme Court has recently accepted two land use cases and ordered an appellate court decision regarding fees to be depublished.

One of the accepted cases permits the state high court to delve into the touchy issue of local authority over wireless telecommunications antennas. The second case involves an award of damages to the owner of an adult cabaret in San Bernardino who was subjected to an unconstitutional zoning ordinance.

Exactly how far local governments may go in regulating antennas has been the subject of extensive litigation during recent years. In June, the Fourth District Court of Appeal upheld a San Diego County zoning ordinance that establishes a detailed permitting process for antennas — and said that a Ninth U.S. Circuit Court of Appeal decision striking down a similar ordinance in the City of La Cañada Flintridge was wrong (see , August 2006).

The first question for the state Supreme Court is this: Do Public Utilities Code §§ 7901 and 7901.1 — which give “telephone corporations” the right to install lines and other fixtures in the public right-of-way — extend to wireless telecommunications providers? Lower courts have generally said yes.

The larger controversy is over the second question for the state Supreme Court: Does a provision in § 7901.1 permitting local governments to control the ‘time place and manner’ in which telephone corporations access roads give a local government the ability to regulate the aesthetics of telecommunications towers in the public right-of-way? Cities and counties contend that they may use the § 7901.1 provision to regulate the location, height and appearance of antennas. Telecommunications companies argue that the state law does not extend to aesthetics.

The case is , No. S145541.

In the San Bernardino case, the owner of Flesh Night Club was awarded $1.4 million based on expenses and lost income from a 53-month period when the city enforced a zoning ordinance defining where adult businesses could locate. Although the club owner challenged the ordinance, the city got a court injunction permitting the city to enforce the ordinance. Flesh Night Club was in the wrong location under the ordinance, so the business closed. Eventually, the Fourth District ruled that the ordinance violated the First Amendment. The business owner sued for damages and a jury awarded $1.4 million, which the Fourth District upheld earlier this year (see , June 2006).

The central question for the state high court is whether a city may be held liable for damages under the federal Civil Rights Act for obtaining a preliminary injunction to enforce an ordinance that is later found to be an unconstitutional impingement on free speech.

The case is , No. S144492.

The depublished case is , which appeared at 140 Cal.App.4th 261. In that case, the Fourth District upheld the city’s building inspection and plan check fees (see , August 2006). The ruling will stand, but it cannot be cited as precedent now.