T-Mobile West LLC v. City and County of San Francisco

T-MOBILE WEST LLC et al.,

Plaintiffs and Appellants,

v.

THE CITY AND COUNTY OF SAN FRANCISCO et al.,

Defendants and Respondents.

No. A144252

(San Francisco City and County

Super. Ct. No. CGC-11-510703)

California Courts of Appeal

First Appellate District

Division Five

Filed October 13, 2016

ORDER MODIFYING OPINION

AND DENYING REHEARING

[NO CHANGE IN JUDGMENT]

THE COURT:^*

     IT IS ORDERED that the opinion filed on September 15, 2016, is modified as follows and appellants? petition for rehearing is DENIED:

1.  On page 2, the second full sentence on the page is deleted and replaced with the following sentence:

In 2011, the City and County of San Francisco (City) enacted an ordinance requiring all persons to obtain a site-specific permit before seeking to construct, install, or maintain certain telecommunications equipment, known as ?Personal Wireless Service Facilities? (hereafter wireless facilities), in the public right-of-way.

2.  On page 2, at the conclusion of the new second sentence mentioned above, a new footnote is added (with all following footnotes renumbered accordingly) that reads:

Under the City?s ordinance, wireless facilities are antennas and related facilities used to provide or facilitate the provision of ?Personal Wireless Service,? which is defined as commercial mobile services provided under a license issued by the Federal Communications Commission.

3.  On page 4, in part I, a new final sentence is added to the first partial paragraph that reads:

The Ordinance also prohibits issuance of a Wireless Permit if the applicant seeks to ?[i]nstall a new Utility or Street Light Pole on a Public Right-of-Way where there presently are no overhead utility facilities.?

4.  On page 9, in part II, at the conclusion of the first partial paragraph and following the citation to Arcadia Unified School Dist. v. State Dept. of Education (1992) 2 Cal.4th 251, 267, a new footnote is added (with all following footnotes renumbered accordingly) that reads:

In a petition for rehearing, Plaintiffs insist the correct standard requires them ? ?to show the statute is unconstitutional in all or most cases.? ?  (City of San Diego v. Boggess (2013) 216 Cal.App.4th 1494, 1504.)  ?The precise standard governing facial challenges ?has been a subject of controversy within [the California Supreme Court].? ?  (Zuckerman v. State Bd. of Chiropractic Examiners (2002) 29 Cal.4th 32, 39.)  ?Under the strictest test, the statute must be upheld unless the party establishes the statute ? ?inevitably pose[s] a present total and fatal conflict with applicable constitutional prohibitions.? ?  [Citation.]  Under the more lenient standard, a party must establish the statute conflicts with constitutional principles ? ?in the generality or great majority of cases.? ?  [Citation.]  Under either test, the plaintiff has a heavy burden to show the statute is unconstitutional in all or most cases, and ? ?cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute.? ? ?  (Coffman Specialties, Inc. v. Department of Transportation (2009) 176 Cal.App.4th 1135, 1145, italics added; accord, Boggess, at p. 1504.)  In suggesting we are compelled to apply a more lenient standard, Plaintiffs misplace their reliance on facial challenges involving First Amendment and abortion rights.  (See, e.g., American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 342?343, 347 (plur. opn. of George, C.J.).)

5.  On page 22, in part II.A., in the first complete paragraph, at the conclusion of the second sentence, a new footnote is added that reads:

Plaintiffs claim this hypothetical assumes facts that are not possible under the Ordinance because all utilities are underground at the former locations.  The Ordinance provides: ?The Department shall not issue a [wireless permit] if the Applicant seeks to: [¶] (1) Install a new Utility or Street Light Pole on a Public Right-of-Way where there presently are no overhead utility facilities.?  However, Plaintiffs simply ask us to assume there are no overhead utility facilities near Coit Tower or the Painted Ladies.  Even if we can assume as much, the Ordinance?s ban on new utility poles is itself a challenged, but seemingly reasonable, aesthetic restriction.  By referencing Coit Tower and the Painted Ladies, we do not mean to suggest these are the only areas of aesthetic value where installation of a wireless facility could incommode public use.  We merely seek to illustrate why a facial challenge is inappropriate.  We decline Plaintiffs? invitation to assume the Ordinance?s aesthetic restrictions will only affect proposed installation of wireless facilities on existing utility poles that are already cluttered with other electrical and telecommunications equipment.

6.  On page 23, in part II.B., the final sentence of the last complete paragraph is deleted and replaced with the following sentence:

Under the City?s interpretation, subdivision (b) of section 7901.1 has no application to the Ordinance because it is not a regulation of ?time, place, and manner of construction---but is instead a regulation that permits Wireless Facilities to be installed in the public right-of-way subject to certain siting criteria.?  (Italics added.)

7.  On page 23, in part II.B., the first two sentences of the final partial paragraph are deleted and replaced with the following:

Plaintiffs, in their opening brief, contend section 7901.1 defines the limited authority local governments have under section 7901.  In their view, sections 7901 and 7901.1 give local governments limited construction management authority, but only to prevent physical obstruction of the roads, not aesthetic incommodation.  In the alternative, they contend that, even if the City has the authority to impose discretionary aesthetic regulation, the City?s application of such control must be equivalent for ?all entities.?  (See § 7901.1, subd. (b).)  In their reply brief and a petition for rehearing, Plaintiffs refine their position and contend that section 7901.1 does not relate solely to temporary construction access to the right-of-way.  However, Plaintiffs continue to maintain that section 7901.1 ?does not expand [local government] authority,? but defines the limited authority section 7901 reserved for local governments to regulate how the public right-of-way is accessed and occupied.

8.  On page 25, in part II.B., immediately after the final full sentence on the page, insert a new footnote that reads:

In their petition for rehearing, Plaintiffs argue for the first time that the Ordinance regulates temporary construction activities.  We are not required to address this forfeited argument.  (See People v. Holford (2012) 203 Cal.App.4th 155, 159, fn. 2 [?it is ?too late to urge a point for the first time in a petition for rehearing, after the case ha[s] been fully considered and decided by the court upon the points presented in the original briefs? ?].)  Suffice it to say, Plaintiffs have not met their burden to show the challenged portions of the Ordinance require anything different of them, as compared to AT&T, Comcast, or PG&E, with respect to temporary access to the right-of-way for construction purposes.

The modification effects no change in the judgment.

Date

Acting P.J.

Superior Court of the City and County of San Francisco, No. CGC-11-510703, James McBride, Judge.

Davis Wright Tremaine, Martin L. Fineman, T. Scott Thompson and Daniel P. Reing for Plaintiffs and Appellants.

Dennis J. Herrera, City Attorney, Yvonne R. Meré, Chief of Complex and Affirmative Litigation, William K. Sanders and Erin B. Bernstein, Deputy City Attorneys, for Defendants and Respondents.

Rutan & Tucker, Jeffrey T. Melching and Ajit Singh Thind for League of California Cities, California State Association of Counties and SCAN NATOA, Inc. as Amici Curiae on behalf of Defendants and Respondents.

^* Before Simons, Acting P.J., Needham, J., and Bruiniers, J.