The Court of Appeals for the Ninth Circuit recently addressed whether a city could consider aesthetics when deciding whether to issue permits for construction of wireless telecommunications facilities in the city’s rights-of-way. The Court held that neither California nor federal law prohibits the city from considering aesthetics in making its decision. (Sprint PCS Assets, L.L.C. v. City of Palos Verdes Estates, (— F.3d —, C.A.9 (Cal.), Oct. 14, 2009))
Facts
The City of Palos Verdes Estates (“City”) is a planned community that designed approximately twenty-five percent of its public rights-of-way to contribute to its aesthetic appeal. Sprint PCS Assets, L.L.C. (“Sprint”) submitted ten permit applications to City to construct wireless telecommunications facilities (“WCF”) in City’s rights-of-way. City issued eight permits but denied two permit applications. One of the denied permit applications sought permission to construct a WCF in the right-of-way of the narrow residential street of Via Azalea. The second application sought permission to construct a WCF on Via Valmonte, which is one of four main entrances into City. Sprint acknowledged that it already served customers within City but claimed that the new WCFs were needed to replace existing infrastructure.
City’s ordinance allows City to deny WCF permit applications when there are “‘adverse aesthetic impacts arising from the proposed time, place, and manner of use of public property.'” City’s public works director denied the Via Azalea and Via Valmonte applications on the ground that the “the proposed WCFs were not in keeping with the City’s aesthetics.” The City Planning Commission affirmed the director’s decision. Sprint appealed to the City Council. Evidence presented to the City Council revealed that Sprint’s cellular service was already available in the locations of City relevant to the permit applications. City Council affirmed the denial of the permit applications because the Via Azalea WCF would disrupt residential ambiance and the Via Valmonte WCF would detract from the natural beauty of a main entrance into City.
Sprint filed a lawsuit in federal district court alleging City’s decision violated the federal Telecommunications Act of 1996 (“TCA”). The trial court granted summary judgment in favor of Sprint. The court held that California law does not allow City to base its decision on aesthetics and, under federal law, City unlawfully prohibited the provision of telecommunications service because it prohibited Sprint from closing a significant gap in its coverage.
Decision
The TCA provides that any decision by a local government to deny a request to build or modify a WCF must “be in writing and supported by substantial evidence contained in a written record.” The issues before the Court of Appeal were (1) whether local law authorized City’s decision, and (2) whether City’s decision was supported by substantial evidence. The court answered both questions in the affirmative.
City’s decision was authorized by local law because City’s ordinance allows it to deny a WCF permit application for aesthetic reasons. State law gives City the right to regulate aesthetics. The California Constitution grants City the police power to regulate aesthetics and the California Public Utilities Code does not eradicate or reduce that right.
Public Utilities Code section 7901 “provides telecommunication companies with a right to construct WCFs ‘in such manner and at such points as not to incommode the public use of the road or highway.'” The court noted that “public use” of City’s “rights-of way is not limited to travel.” Also, it is an “accepted principle of urban planning that streets may be employed to serve important social, expressive, and aesthetic functions.” Public Utilities Code section 7901.1 gives municipalities the “right to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed.” Regulations that address aesthetics are “‘time, place, and manner’ regulations.” A city may allow a telecommunication company access to the city’s rights-of-way in an “aesthetically benign” manner and refuse to permit such a company access to rights-of-way in an “aesthetically offensive” manner.
City’s decision to deny Sprint’s permit applications was also supported by substantial evidence as required by the TCA. That evidence revealed that the WCFs would detract from the residential character of Via Azalea and would not conform with the appearance of a main entrance to City on Via Valmonte.
The TCA specifies that a local government’s “denial of a WCF permit application ‘shall not prohibit or have the effect of prohibiting the provision of personal wireless services.'” A local government will run afoul of this provision if it prevents a wireless telecommunication provider “from closing a ‘significant gap’ in service coverage.” The court concluded that Sprint failed to show that there was a significant gap in service coverage or that the existing WCF network was obsolete. Accordingly, the Court of Appeals reversed the decision of the trial court granting summary judgment in favor of Sprint and remanded the case for further proceedings.
Questions
If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.
Mona G. Ebrahimi | 916.321.4500