On October 14, 2009, the Court upheld the City of Palos Verdes Estates’ authority to deny City permits for the construction of a wireless telecommunications tower on the basis of adverse aesthetic impacts.
Specifically, the Court held that the City’s decision based solely on adverse aesthetic impacts did not violate the federal Telecommunications Act of 1996 nor California state law codified under the Public Utilities Code (“PUC”) Sections 7901 and 7901.1.
This decision is significant for counties and cities throughout California which, over the last decade, have run head-on into legal and political road blocks in their attempts to balance the public need for reliable and ubiquitous telecommunications service on the one hand, and on the other hand, a city’s and county’s need to maintain local control over the time, place and manner in which they are erected so as to preserve the general welfare of the community.
In this case, Sprint PCS challenged the City of Palos Verdes Estates’ (“City”) wireless telecommunications ordinance which authorized the City to consider aesthetic factors in denying or approving the construction of wireless telecommunication towers in City rights-of-way. The ordinance allowed the City to consider such factors as height of tower, proximity to residential structures, nature of uses of nearby properties, surrounding topography, and the surrounding tree coverage and foliage.
Until now, telecommunications companies had argued that PUC Sections 7901 and 7901.1 prohibited cities from denying them access to city rights-of-way on aesthetic grounds. First, telecommunications companies argued that PUC Section 7901 granted them the right to construct towers anywhere along the rights-of-way so long as its use did not “incommode” or otherwise inconvenience, annoy, or subject to discomfort the public use of the road or highway.
Secondly, telecommunications companies argued that cities could only exercise “reasonable controls as to time, place and manner” in which telecommunication companies used the public rights-of-way and that aesthetic grounds were not reasonable controls under PUC Section 7901.1.
In considering these issues, the Court reasoned that cities are given broad, general authority to regulate on aesthetic grounds from the “police powers” authority granted under the California Constitution. Specifically, the Court held that adverse aesthetic impacts caused by the installation of a wireless telecommunications tower at a location that was a scenic, residential area did in fact incommode the public’s use of the road or highway. The Court reasoned that a visually displeasing telecommunications tower in the middle of a picturesque street or highway would adversely impact one’s ability to enjoy travelling along such picturesque street or highway.
Equally important, the Court held that aesthetic regulations are valid time, place, and manner restrictions under PUC Section 7901.1. The Court noted that telecommunication companies can “access a city’s rights-of-way in aesthetically benign and aesthetically offensive ways” and therefore “it is within a city’s authority to permit the former and not the latter.”
Nevertheless, the Court stressed that cities must still support their decisions to deny based on aesthetic grounds, by showing the decision is supported by “substantial evidence.” Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Moreover, a city’s ordinance could still be found invalid if it effectively prohibits the provision of wireless service.
In light of this case, cities and counties should take inventory of their local zoning ordinances regulating wireless telecommunication towers to determine whether they are adequate to properly regulate the future proliferation of wireless towers within their communities.
As always, Alvarez-Glasman & Colvin’s goal is to keep its clients abreast of recent developments in the law. Should you like copies of these cases, further explanation, or have any further questions, please contact John W. Lam by phone at (562) 699-5500, or by e-mail at jlam@agclawfirm.com.
[1] Sprint PCS Assets, L.L.C. v. City of Palos Verdes Estates, No. 05-56106 (Oct. 14, 2009).