Municipio Autónomo de San Sebastián v. QMC Telecom, LLC
190 P.R. 652
| Supreme Court of Puerto Rico | 2014Background
- QMC Telecom applied on March 16, 2010 for a permit to construct a telecommunications tower in San Sebastián; ARPe conditionally approved and later issued the final permit after required evidence was submitted.
- Neighbors, including Víctor Rivera Pastrana and Zulma I. Figueroa Marti, opposed the tower; ARPe held an administrative hearing, found QMC met FCC emission limits, and dismissed complaints; initial final permit notification was not sent to some neighbors until OIGP ordered re-notification.
- Petitioners filed for administrative review with the Junta Revisora; the Junta confirmed ARPe’s permit, measuring the safety-distance (radio de seguridad) from the house walls only and excluding a non-roofed terrace and accessory structures.
- Petitioners sought certiorari to the Puerto Rico Supreme Court arguing the permit violated the safety-distance requirement of Law No. 89-2000 because part of the petitioner’s terrace lay within the statutorily required distance.
- The Supreme Court held it had jurisdiction under Law No. 161-2009 because the permit application was filed after that law’s effective date, and reached the merits, interpreting “residencia” under Law No. 89-2000 to include a terrace attached to the dwelling when the terrace existed or was under construction at the time of the permit application.
- Court reversed the Junta Revisora and annulled the permit because part of the petitioner’s residence (the terrace) lay within the required safety radius. Three justices dissented, arguing “residencia” should mean the principal residential structure only (excluding accessories).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Puerto Rico Supreme Court has jurisdiction to review Junta Revisora decisions under Law No. 161-2009 | Law No. 161-2009 applies to permit applications filed after Dec. 1, 2009, so the Court has jurisdiction over this March 2010 application | Permit-review jurisdiction fell elsewhere under transitional provisions | Held: Court has jurisdiction under Art. 13.1 of Law No. 161-2009 for applications filed after Dec. 1, 2009 (QMC application qualifies) |
| Whether Law No. 89-2000’s safety-distance (radio de seguridad) is measured from the residence and what “residencia” includes | Petitioners: “Residencia” includes attached terrace and other built elements; terrace within radius violates statute | QMC/Junta: “Residencia” limited to main house walls; terraces and accessory structures excluded | Held: “Residencia” includes an attached terrace (roofed or unroofed) if it existed or was under construction at time of permit application; permit revoked because terrace fell within radius |
| Whether accessory structures (play area, storage shed, hydroponic structures) are protected as part of “residencia” | Petitioners sought protection for multiple yard structures inside radius | QMC argued such accessories are not part of residence for safety-distance calculation | Held: Court resolved permit denial on terrace inclusion alone and did not decide accessory-structure protections; terrace inclusion sufficed to revoke permit |
| Preemption by federal telecommunications law over local safety regulations | QMC argued federal law and FCC rules limit state/local regulation (esp. health-based restrictions); thus local denials cannot be based on RF emissions compliance | Petitioners argued Law No. 89-2000 regulates placement and safety distances, permitted by 47 U.S.C. § 332(c)(7) | Held: Federal law preserves limited state/local authority over placement; Court applied local statute to safety-distance issue (no RF-preemption problem here) |
Key Cases Cited
- Cordero et al. v. ARPe et al., 187 D.P.R. 445 (P.R. 2012) (discusses jurisdictional effect of Law No. 161-2009 on permit-review cases)
- S.L.G. Solá-Moreno v. Bengoa Becerra, 182 D.P.R. 675 (P.R. 2011) (jurisdiction is the court’s authority to decide controversies; courts must address jurisdiction first)
- Souffront v. A.A.A., 164 D.P.R. 663 (P.R. 2005) (lack of jurisdiction may be raised sua sponte and requires dismissal without reaching merits)
- Petersburg Cellular Partnership v. Board of Supervisors of Nottoway County, 205 F.3d 688 (4th Cir. 2000) (discusses design and collapse behavior of towers—typically collapse on themselves—relevant to safety concerns)
- Clases A, B y C v. P.R.T.C., 183 D.P.R. 666 (P.R. 2011) (interpreting Puerto Rico telecommunications statutes in light of federal law and policy)