T-Mobile W. LLC v. City & Cnty. of S.F.

Decision Date15 September 2016
Docket NumberA144252
Citation208 Cal.Rptr.3d 248,3 Cal.App.5th 334
CourtCalifornia Court of Appeals Court of Appeals
Parties T–MOBILE WEST LLC et al., Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents.

3 Cal.App.5th 334
208 Cal.Rptr.3d 248

T–MOBILE WEST LLC et al., Plaintiffs and Appellants,
v.
CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents.

A144252

Court of Appeal, First District, Division 5, California.

Filed September 15, 2016
As Modified on Denial of Rehearing October 13, 2016


Davis Wright Tremaine, Martin L. Fineman, San Francisco, 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, Costa Mesa, for League of California Cities, California State Association of Counties and SCAN NATOA, Inc. as Amici Curiae on behalf of Defendants and Respondents.

BRUINIERS, J.

3 Cal.App.5th 339

Sometimes tension exists between technological advancement and community aesthetics. (Sprint PCS Assets v. City of Palos Verdes Estates (9th Cir. 2009) 583 F.3d 716, 720 (Palos Verdes Estates ).) We address here the scope of local government authority to adjust the balance of those interests, consistent with state-wide regulation.

Telephone and telegraph companies have long exercised a franchise under state law to construct and maintain their lines on public roads and highways “in such manner and at such points as not to incommode the public use.” (

208 Cal.Rptr.3d 253

Pub. Util. Code, § 7901 ;1 Pac. Tel. & Tel. Co. v. City & County of S.F. (1959) 51 Cal.2d 766, 771, 336 P.2d 514 (Pacific Telephone I ).) State law also provides that local government maintains the right “to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed. [¶] ... The control, to be reasonable, shall, at a minimum, be applied to all entities in an equivalent manner.” (§ 7901.1, subds. (a), (b).) 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 In this appeal, we consider whether the ordinance, on its face, is preempted by sections 7901 and 7901.1. We affirm the trial court's determination that portions of the ordinance that authorize consideration of aesthetics are not preempted by state law.

3 Cal.App.5th 340

I. FACTUAL AND PROCEDURAL BACKGROUND

T–Mobile West LLC, Crown Castle NG West LLC,3 and ExteNet Systems (California) LLC (collectively Plaintiffs) are considered “telephone corporations” under California law. (§ 234.) Plaintiffs' business requires installation and operation of wireless facilities, including antennas, transmitters, and power supplies, on existing utility poles in the City's public rights-of-way. These wireless facilities are considered “telephone lines.” (§ 233.)

In January 2011, the San Francisco Board of Supervisors adopted Ordinance No. 12–11 (Wireless Ordinance or Ordinance), which required Plaintiffs to obtain a wireless facility site permit (Wireless Permit) from the City's Department of Public Works (DPW) before installing or modifying any wireless facility in the public right-of-way.4 In adopting the Ordinance, the Board of Supervisors observed:

“(1) Surrounded by water on three sides, San Francisco is widely recognized to be one of the world's most beautiful cities. Scenic vistas and views throughout San Francisco of both natural settings and human-made structures contribute to its great beauty.

“(2) The City's beauty is vital to the City's tourist industry and is an important reason for businesses to locate in the City and for residents to live here. Beautiful views enhance property values and increase the City's tax base. The City's economy, as well as the health and well-being of all who visit, work or live in the City, depends in part on maintaining the City's beauty.

208 Cal.Rptr.3d 254

“(3) The types of wireless antennas and other associated equipment that telecommunications providers install in the public rights-of-way can vary considerably in size and appearance. The City does not intend to regulate the technologies used to provide personal wireless services. However, the City needs to regulate placement of such facilities in order to prevent telecommunications providers from installing wireless antennas and associated equipment in the City's public rights-of-way either in manners or in locations that will diminish the City's beauty .” (Italics added.) After the Ordinance was enacted, DPW adopted implementing regulations.

The Ordinance required a showing of technological or economic necessity for permit approval and created three “Tiers” of facilities based on equipment

3 Cal.App.5th 341

size. Tier I was defined to include only the smallest equipment (essentially, primary and secondary equipment enclosures, each less than 3 cubic feet in volume and no greater than 12 inches wide and 10 inches deep). Tier II was defined to allow equipment slightly larger in overall volume than Tier I (4 cubic feet), but with the same limits on width and depth. Tier·III was defined as any equipment larger than Tier II. The Ordinance conditioned approval of permits for equipment in Tiers II and III on aesthetic approval by a City department responsible for the proposed site.

Within Tiers II and III, three additional subdivisions were created, depending on whether the proposed wireless facility was in a location designated as (1) unprotected, (2) “Planning Protected” or “Zoning Protected,” or (3) “Park Protected.”5 Each of those subdivisions, in turn, triggered different aesthetic standards for approval. For example, if a wireless facility was proposed to be installed near a historic building or in a historic district, the City's Planning Department needed to determine that it would not “significantly degrade the aesthetic attributes that were the basis for the special designation” of the building or district. Additionally, for any Tier III facility, a “necessity” standard required DPW to find that “a Tier II Facility is insufficient to meet the Applicant's service needs.” DPW would not issue a Wireless Permit unless the relevant City department determined the proposed wireless facility “satisfie[d]” the applicable aesthetic compatibility standard. 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.”

If DPW approved a Tier III application after recommendation by the Planning Department, the approval from DPW was only “tentative,” and the applicant was then required to notice the public. “Any person” could protest tentative approval of a Tier III application within 20 days of the date the notice was mailed and then subjected the application to public hearing. After a final determination on a Tier III application, “any person” could appeal to the Board of Appeals.

On May 3, 2011, Plaintiffs filed an action for declaratory and injunctive relief. The operative second amended complaint asserted five causes of action: (1) violation of Government Code section 65964, subdivision (b) ;6 (2)

3 Cal.App.5th 342

an unlawful taking of Plaintiffs'

208 Cal.Rptr.3d 255

property without due process of law; (3) violation of and preemption by sections 7901 and 7901.1 ; (4) preemption of DPW regulations granting the Planning Department review authority under the California Environmental Quality Act; and (5) violation of and preemption by the then-newly enacted section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012 (47 U.S.C. § 1455 ). Plaintiffs' first and fourth causes of action were resolved by summary adjudication. Plaintiffs voluntarily dismissed their second cause of action before trial.

During the bench trial on the remaining third and fifth causes of action, Plaintiffs and the City stipulated that Comcast, AT & T, and PG & E have also installed certain equipment, including backup battery units, antennas, cut-off switches, power meters, and transformers, on utility poles in the City's public right-of-way. With respect to PG & E, it was stipulated the City granted PG & E a franchise to install its facilities in the public right-of-way and requires it to obtain temporary occupancy permits if the installation will take more than one day. The parties also stipulated that telephone corporations installing facilities on utility poles other than wireless facilities, such as AT & T, and state video providers, such as Comcast, need only obtain utility conditions permits and temporary occupancy permits if the installation will take more than one day. Comcast, AT & T, and PG & E are not required to obtain any site-specific permit as a condition of installing such facilities on existing utility poles.7

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