New Cingular Wireless, PCS, LLC v. City-Parish of East Baton Rouge
2021CA0292
| La. Ct. App. | Dec 30, 2021Background
- AT&T applied for and received a permit (Oct. 3, 2018) to install small cell wireless equipment at multiple Baton Rouge locations; a pole/antenna was installed at 9551 Antioch Road in Dec. 2019.
- The site is within the Long Farm Planned Unit Development (PUD); the PUD map stated utilities (including phone service by AT&T) would be provided “via underground conduits and wiring.”
- Mosely Holdings donated the parcel to the City/Parish subject to a Donation that limited uses ("for the purpose of completing the extension of Antioch Road") and disclaimed third‑party beneficiaries.
- In March 2020 the City/Parish Building Official revoked the Antioch permit under IBC §105.6 (permit issued in error); AT&T appealed to the local Board of Appeals, which affirmed the revocation.
- AT&T sought judicial review; the district court denied relief and this Court of Appeal affirmed, holding the permit was issued in error, the PUD zoning controlled, and the revocation was not arbitrary or unlawful.
Issues
| Issue | Plaintiff's Argument (AT&T) | Defendant's Argument (City/Parish & Mosely) | Held |
|---|---|---|---|
| 1. Was revocation arbitrary or capricious? | Revocation was improper; permit was validly issued and relied upon. | Building Official properly revoked an erroneously issued permit under IBC §105.6. | Revocation not arbitrary; Board reasonably found permit issued in error. |
| 2. Do PUD restrictions require underground utilities and cover wireless facilities? | PUD only requires "phone" underground; wireless cell site is different; Long Farm Restrictions allegedly allow above‑ground when reasonable. | PUD map and UDC require utilities (including AT&T service) via underground conduits with no exception for wireless. | PUD required underground utilities; restriction applied to AT&T service; no exception for a wireless tower. |
| 3. Did the Donation/dedication convert the parcel to public property or give AT&T right to locate in right‑of‑way? | Donation conveyed full ownership/public status; state statutes and federal law (47 U.S.C. §253) protect telecom placement in rights‑of‑way. | Donation reserved limitations and servitudes; Donation expressly disclaimed third‑party beneficiaries; local government may enforce zoning and manage rights‑of‑way. | Donation did not negate PUD zoning; City/Parish may manage rights‑of‑way; revocation did not violate cited statutes. |
| 4. Did AT&T acquire vested property rights in the issued permit? | AT&T incurred expense and relied on permit (Dunn) so permit vested and cannot be revoked. | A permit issued in error does not create a vested right; AT&T had notice of restrictions and the Small Wireless Ordinance disclaims property rights. | No vested property right; permits issued in error do not vest an irrevocable right. |
Key Cases Cited
- Dunn v. Parish of Jefferson, 256 So.2d 664 (La. App. 4th Cir. 1972) (permits may be protected after substantial reliance but not extended to permits issued in error)
- Pailet v. City of New Orleans, 433 So.2d 1091 (La. App. 4th Cir. 1983) (a permit issued in error does not vest a property right)
- Brennan v. Bd. of Zoning Adjustments of City of New Orleans, 371 So.2d 324 (La. App. 4th Cir. 1979) (erroneously issued permits do not create vested rights)
- King v. Caddo Parish Comm’n, 719 So.2d 410 (La. 1998) (standard for arbitrary and capricious review of zoning actions)
- Myers v. City of Baton Rouge/Parish of East Baton Rouge, 145 So.3d 320 (La. 2014) (zoning actions are presumed valid and will be upheld unless palpably unreasonable)
- Palermo Land Co. v. Planning Comm’n of Calcasieu Parish, 561 So.2d 482 (La. 1990) (municipal interpretation of zoning ordinances is entitled to great weight)
- Cross v. City of New Orleans, 446 So.2d 1253 (La. App. 4th Cir. 1984) (zoning authority may revoke or cancel permits erroneously issued)
- Anderson v. Police Jury of East Feliciana Parish, 452 So.2d 730 (La. App. 1st Cir. 1984) (formal dedication can create a public thing but facts and encumbrances control application)