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Sprint PCS v. City of La Cañada Flintridge: A Right-of-Way CaseLa Cañada Flintridge is an up-scale city with an above-average per household education (CalTech and the Jet Propulsion Lab are right there). The City has a bright staff. The City knows how to negotiate with applicants with difficult projects and usually finds a middle ground where everyone is satisfied if not happy. So, how did this case make it to the Ninth Circuit of the U.S. Court of Appeals and why did the court reverse a district court? FactsLa Cañada Flintridge is a hilly, tree-lined city where Sprint tried to introduce cell sites into residential neighborhoods. Since Sprint has successfully used the right-of-way for this purpose elsewhere, the carrier: applied for five permits shortly after the City enacted its Ordinance. The City granted two of the permit applications, Sprint withdrew one application, and the City rejected two of the applications which are the bases for Sprint’s complaint. The City of La Cañada Flintridge saw these applications coming and quickly passed Ordinance 324, “An Urgency Ordinance of the City Council of the City of La Cañada Flintridge Adopting a Moratorium on the Issuance of Any Demolition, Grading, Utility, Excavation or Other Permits Relating to Above-Ground Structures Along City Public Rights-of-Way” All but one of the standards (called “criteria” in the Ordinance) were aesthetic in nature. The U.S. District Court for the Central District of California, Southern Division found that the City of La Cañada Flintridge had substantial evidence to deny the two cell sites on some – but not all – of the aesthetic standards. Local Decision Must Have Weight Under State LawSprint contended that the use of the right-of-way cannot be denied “telephone corporations” under the aesthetic provisions of Ordinance 324. The three-judge panel of the Ninth Circuit Court agreed, citing California’s Public Utilities Code Section 7901 as follows: Telegraph or telephone corporations may construct lines of telegraph or telephone lines along and upon any public road or highway, along or across any of the waters or lands within this State, and may erect poles, posts, piers, or abutments for supporting the insulators, wires, and other necessary fixtures of their lines, in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters. The Ninth Circuit judges repeated previous definitions of “substantial evidence” and found that a city’s “grounds for denial must receive at lease some weight under state law.” Since Sprint was denied on grounds unpermitted by Section 7901 of the California Public Utilities Code, a question arises as to whether the City of La Cañada Flintridge actually had substantial evidence. Time, Place and MannerFurther, Section 7901 had been amended years ago by Section 7901.1 “to determine the extent of local regulatory authority under § 7901.1: first, the breadth of ‘time, place, and manner,’ and second, the meaning of ‘are accessed’.” The City of La Cañada Flintridge hoped that aesthetic considerations fell under the “time, place and manner,” provision but the three-judge panel felt otherwise: While the authority to restrict building based on “time, place, and manner” gives cities more authority to determine what constitutes a reasonable use of the road, this language does not seem to enhance greatly the City’s regulatory latitude—certainly not to the extent necessary to engage in aesthetic regulation. The meaning of “are accessed,” reasoned the Ninth Circuit, has to do with using the street, not the way it looks. Since the District Court said the City could deny and the Ninth Circuit said it can’t, the denials were reversed. There were no instructions to the litigants as to what to do next. Monday Morning QuarterbackingIt is easy for PlanWireless to identify what went wrong from whom and by whom in this case. Scott Grossberg, special attorney for the City of La Cañada Flintridge, told the La Cañada Valley Sun: I would have expected to see a direction to go back to the district court; and, there’s no timing included [in the wording]. We’re trying to figure out what the court wants. To PlanWireless, it appears obvious what the Court wants: a better ordinance that has nothing to do with the right-of-way, but rather the use of land. PlanWireless believes some problems with the Ordinance were: · Passing an “urgency ordinance.” This signals to the carrier that a city is reacting rather than planning. To the carriers, this is a sign of weakness. · Basing a denial on right-of-way standards. It’s clear in the Telecommunications Act of 1996 that a local government should use zoning and land use controls, not right-of-way standards, to regulate personal wireless service facilities. · Relying heavily, if not solely, on aesthetics to deny an application. · Not showing Sprint that there were alternatives to its proposed cell sites, even in 2001. No one should have allowed the court to reach as far as calling Sprint a “telephone corporation.” Under the Telecommunications Act of 1996, Sprint is a carrier of personal wireless services, not a Local Exchange Carrier (LEC) nor a Competitive LEC (CLEC) nor an independent LEC (ILEC). The California Public Utilities Code was written years before wireless was in the public domain and the Code should never have been applied in this case. The attorney for Sprint told the La Cañada Valley Sun: We have a gap in coverage that we are trying to fill … We didn’t have any other way to take care of the gap in our coverage so we had to go to court. But, Sprint did have an alternative and it’s called DAS (see photo on page 2). Sprint is using DAS in other localities as we write this article and the City of La Cañada Flintridge may have gone along with it, had the City known to ask for it. Quarterbacking Next SeasonThere is inevitably talk of going to the U.S. Supreme Court with a City of La Cañada Flintridge appeal. The new U.S. Supreme Court may be tilted toward state’s rights. Since the interpretation of a state statute is at issue here, the new U.S. Supreme Court would probably uphold the Ninth Circuit decision. It is time for local governments to learn from this decision. Require alternatives be studied and shown to be unreasonable. Plan, don’t react. Don’t use the term “aesthetics” and avoid aesthetic standards unless they are paired with demonstrable impacts such as “property values.” Keep zoning within districts or zones, not peculiar to the right-of-way (if your zoning ordinance does not cover rights-of-way, including rights-of-way within districts is your first order of business). If you need some ideas for standards, give us a call.
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