In the ongoing controversy regarding local government authority over wireless telecommunication antennas, the Fourth District Court of Appeal has upheld San Diego County’s zoning ordinance that establishes a detailed permitting process for such antennas.

The court ruled that state law allowing antennas in the public right of way allows the county’s permitting scheme — even though a federal appeals court threw out a similar scheme adopted by the City of La Cañada Flintridge because it was superceded by state law. The state court in the San Diego County case said that the Ninth U.S. Circuit Court of Appeals’ decision in Sprint PCS Assets, LLC v. City of La Cañada Flintridge, (2006) 435 F.3d 993, “is wrong and should not be followed.”

The Fourth District did not rule on the San Diego County zoning ordinance’s legitimacy under the Federal Telecommunications Act, although the court did assert that its ruling was consistent with federal law. Rather, Sprint is litigating the applicability of the federal Telecommunications Act in federal court, where a district court judge threw out the ordinance. That decision has been stayed pending the Ninth Circuit’s ruling on the county’s appeal.

San Diego County adopted its wireless technology ordinance as part of the zoning ordinance during 2003. The ordinance establishes four different processes, depending on the location and visual impact of the proposed antenna. Facilities that would have very low visual impacts and facilities proposed for commercial, industrial or special purpose zones are decided administratively by the planning and land use director. More conspicuous towers and those proposed for residential and rural zones require use permits, are subject to public hearings and may be decided by the county Planning Commission. The ordinance lays out a number of general and design regulations and setback requirements, and all applications must be accompanied by detailed information regarding the proposed facilities and services.

In its state court lawsuit, Sprint argued that Public Utilities Code § 7901 prevents local governments from regulating the installation of telecommunications equipment in the public right of way (ROW) except to accommodate the public use of the ROW. San Diego County Superior Court Judge Charles Hayes ruled the county’s ordinance is legal, a decision upheld on the appeal.

The Fourth District decided two questions: Do wireless telecommunications companies have the same privileges as traditional “telephone corporations” under § 7901? If so, does the statute prevent local governments from imposing design and siting restrictions on equipment in the ROW?

The court ruled that wireless companies and telephone companies are the same thing these days, so § 7901 applies. However, in answering the second question, the court ruled, “The rights conferred by § 7901, although broad, are not unlimited.”

The court noted that not only does § 7901 preclude installation of equipment in a location or manner that “incommodes” the public use of the ROW, § 7901.1 declares that a telephone company’s privileges are subject to a local government’s “right to exercise reasonable control as to the time, place and manner in which roads, highways and waterways are accessed.” The court cited extensively from California Public Utility Commission regulations and decisions that give municipalities the authority to adopt reasonable regulations on the location of telecommunications equipment in the ROW.

“The approach adopted by the PUC — ceding to local authorities the primary authority to issue discretionary permits for ROW installations while retaining the ability to pre-empt local decisions where a superceding state interest is undermined by local obstructionism — is an appropriate resolution that balances the interests of local governments in managing and preserving the local ROWs against indiscriminate use while ensuring the statewide interest in the deploying of ubiquitous communications systems is protected,” Justice Alex McDonald wrote for the court.

Sprint argued that the county’s ordinance is inconsistent with the limited local discretion contained § 7901, and Sprint and appeared to have the La Cañada Flintridge decision on its side. In that case, the Ninth Circuit ruled that cities’ “regulatory power is functional, and does not extend to aesthetics.” The Ninth Circuit ruled that state law pre-empted local authority (see CP&DR Legal Digest, March 2006).

But the Fourth District ruled that local authority is not pre-empted.

“Although state law fully and completely covers the exclusive right of the state to empower telephone companies to use ROWs and to disable local governments from extracting franchise fees from telephone companies for the right to operate therein, there is no general state law regulating the siting or appearance of the equipment so authorized,” Justice McDonald wrote.

Sprint further argued that the county ordinance demanded irrelevant information, imposed subjective design criteria, and let the county deny an application for any reason.

“However,” the court ruled, “zoning ordinances with even fewer guidelines and granting even broader discretion have been upheld in the face of similar attacks.”

The Case:
Sprint Telephony PCS v. County of San Diego, No. D045957, 06 C.D.O.S. 5537, 2006 DJDAR 7742. Filed June 20, 2006.
The Lawyers:
For Sprint: Daniel Pascucci, Buchanan Ingersoll, (619) 578-5000.
For the county: Thomas Bunton, county counsel’s office, (619) 531-4860.