California Courts of Appeal
Sep. 20, 2016
San Francisco can block antennae if it looks ugly, appellate court rules
The City of San Francisco can regulate telecommunications antennae near public roads based on whether such equipment would "diminish the City's beauty," the 1st District Court of Appeal ruled Thursday in the first published opinion of its kind.
Daily Journal Staff Writer
The City of San Francisco can regulate telecommunications antennae near public roads based on whether such equipment would "diminish the City's beauty," the 1st District Court of Appeal ruled Thursday in the first published opinion of its kind.
The result is a defeat for plaintiffs and appellants T-Mobile International AG, Crown Castle NG West LLC, and ExteNet Systems (California) LLC. The wireless carriers sought to strike down a 2011 San Francisco ordinance that required permits for installing equipment on utility poles adjacent to public streets.
"Sometimes tension exists between technological advancement and community aesthetics," Justice Terence L. Bruiniers wrote for the three-judge panel. "We address here the scope of local government authority to adjust the balance of those interests, consistent with state-wide regulation."
The companies argued that the city ordinance was invalid because it contradicted a state law governing installation of telecommunications equipment.
Section 7901 of the state public utilities code provides that telegraph and telephone companies can construct and maintain equipment along public roads and highways so long as the equipment does not inconvenience the public right of way.
Appellants claimed that the state law restricts installation only when telecommunication equipment obstructs travel and presents a physical inconvenience.
The city argued that telecommunications equipment also can detract from the beauty of the city's landscape, an aesthetic inconvenience to the public.
"Nothing in section 7901 explicitly prohibits local government from conditioning the approval of a particular siting permit on aesthetic concerns," Bruiniers wrote.
Bruiniers added that the public could be inconvenienced if wireless carrier equipment were placed near Coit Tower or other popular attractions.
Erin B. Bernstein, the deputy city attorney who argued the case, said the panel issued a thoughtful, common sense opinion — "the way cities look matters," Bernstein said. "It was extreme to say that cities can't review where facilities are placed and what they look like."
"The court refers to this balance: the needs of technology against the way we live in and experience our cities," Bernstein added. "This opinion will guide us toward a better balance statewide."
Bernstein and Deputy City Attorney William K. Sanders served as trial counsel.
Jeffrey T. Melching, a Rutan & Tucker LLP partner who submitted an amicus brief in support of the city, said the decision will provide clarity and certainty to local agencies and telecommunication providers.
"The goal is not to force the facilities out of the public right of way," Melching said. "The goal is to ensure they are harmonized with the public's interest."
Melching submitted a brief on behalf of the League of California Cities, California State Association of Counties and the California and Nevada chapter of the National Association of Telecommunication Officers and Advisors.
Joining Bruiniers in the decision were Justices Mark B. Simons and Henry E. Needham Jr. The justices affirmed a judgment from San Francisco County Superior Court. T-Mobile West LLC v. City and County of San Francisco, 2016 DJDAR 9603.
"If the Legislature disagrees with our conclusions, or wishes to grant the wireless industry further relief from local regulation, it remains free to amend sections 7901 and 7901.1," Bruiniers wrote.
T. Scott Thompson, a Washington D.C.-based partner at Davis Wright Tremaine LLP, argued on behalf of the appellant wireless carriers. He declined to comment.
A spokeswoman for T-Mobile did not respond to a request for comment. A spokeswoman for Crown Castle declined to comment.
Kevin Lee
kevin_lee@dailyjournal.com
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