City’s Charter Provision Requiring Voter Approval Before Constructing Wireless Antennae on City Land is Not Preempted

In 1990, the City of Huntington Beach (“City”) amended its charter by an initiative ("Measure C") which requires voter approval prior to the construction of any structure costing over $100,000 on any City-owned park or beach.  After a failed attempt to erect a wireless antennae in 2007, T-Mobile filed a lawsuit to prevent the City from requiring compliance with Measure C, claiming that the charter amendment was preempted by the federal Telecommunications Act of 1996 (“TCA”).  The United States Court of Appeals for the Ninth Circuit held that the TCA did not preempt Measure C, because Measure C is a lawful exercise of the City's rights as a landowner and not a zoning or land use decision.  (Omnipoint Communications, Inc. v. City of Huntington Beach (— F.3d —-, C.A. 9, December 11, 2013).

Omnipoint Communications, Inc., doing business as T-Mobile, submitted applications to the City for wireless permits to construct wireless antennae in two parks owned by the City.  The construction costs of the two antennae were initially estimated to be $80,000 and $60,000 respectively. The City's Planning and Building Department issued the wireless permits, the City Council approved lease agreements, and the City authorized T-Mobile to install and maintain the wireless facilities in exchange for a licensing fee.

T-Mobile then applied for and received building permits and began construction at the first park.  Upon commencement of construction, local residents began to aggressively protest the projects, and T-Mobile voluntarily stopped construction while the City looked into the matter.  Upon further review, the City Council determined that the actual cost of each antennae would substantially exceed $100,000, and therefore T-Mobile was required to obtain voter approval pursuant to Measure C before proceeding with construction.  T-Mobile’s building permits were suspended pending voter approval.

However, T-Mobile refused to seek voter approval, and instead filed a complaint in federal court seeking “injunctive relief to prevent City from requiring compliance with Measure C.”  The trial court found that the TCA “required the City to process T Mobile’s applications for building permits within a reasonable period of time, and to explain the reason for denial of the applications in writing, supported by substantial evidence.”  The court concluded that Measure C’s voter approval provision did not meet these requirements and the “City could not use Measure C as a reason to deny T-Mobile’s applications or to delay making a decision.” 

On appeal, the City argued that the TCA does not preempt its application of Measure C, because Measure C is not a zoning or land use regulation subject to the TCA, but is rather a lawful exercise of the City's rights as a landowner.  The court of appeals agreed.  The purpose of the TCA is “to encourage the development of telecommunications technologies, including wireless telephone providers.”  Congress enacted 47 U.S.C. § 332(c)(7) “to minimize federal interference with State and local land use decisions.”  The court concluded that the preemptive scope of  47 U.S.C. § 332(c)(7) is as follows:  “(1) it preempts local land use authorities’ regulations if they violate the requirements of § 332(c)(7)(B)(i) and (iv),” which relate to the passage of legislative regulations, and “(2) it preempts local land use authorities’ adjudicative decisions if the procedures for making such decisions do not meet the minimum requirements of § 332(c)(7)(B)(ii) and (iii),” which relate to adjudicative decisions of local land use authorities.

Section 332(c)(7)(B)(i) provides State and local governments cannot unreasonably discriminate among wireless providers or prohibit or take action that effectively prohibits the provision of wireless services.  Section 332(c)(7)(B)(ii) mandates that a state or local government must act within a reasonable period of time on a request involving a personal wireless service facility.  Section 332(c)(7)(B)(iii) provides that a decision regarding a request for a personal wireless services facility “must be in writing and supported by substantial evidence.”  Section 332(c)(7)(B)(iv) prohibits regulation of otherwise compliant facilities based on “the environmental effects of radio frequency emissions.” 

As a charter city, the “City has plenary power to control municipal property.”  However, in 1990, voters passed Measure C to amend the city charter to provide that no structure that costs more than $100,000 may be built on any beach or in any park unless authorized by a majority of the members of the City Council and a majority of the electorate voters at a general or special election.  Therefore, Measure C operates to limit the City’s plenary power over its lands. 

The Ninth Circuit found that Measure C’s voter-approval requirement “is outside the City’s framework for land use decision making because it does not implicate the regulatory and administrative structure established by the City’s general plans and zoning and subdivision code.”  The court went on to state that the TCA only applies “to local zoning and land use decisions and does not address a municipality’s rights as a landowner.”  Accordingly, the City’s exercise of rights under Measure C “was non-regulatory and non-adjudicative behavior akin to an action by a private land owner,” and that the City’s determination that it could not license the use of a city-owned park “without voter approval is not the type of zoning and land use decision covered by § 332(c)(7).”  Therefore, the City’s decision was not preempted by § 332(c)(7).


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