738 F.3d 192
9th Cir.2013Background
- Measure C in Huntington Beach required voter approval for city-owned park structures costing over threshold, codified as charter § 612(b).
- T-Mobile obtained planning/building permits and signed Site License Agreements to install antennae in Harbour View Park and Bolsa View Park.
- Permits were issued in 2007–2009; construction commenced after licenses, but faced public opposition.
- City later suspended construction, asserting Measure C required voter approval before proceeding; T-Mobile sought federal relief arguing TCA preemption.
- District court found Measure C preempted and delayed permits; voters later disapproved construction in 2010; case remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the TCA preempts Measure C. | T-Mobile argues Measure C regulates wireless facilities and is preempted by § 332(c)(7)(B)(i)/(iv). | City contends Measure C is market-participant landowner action not subject to preemption and aligns with procedural TCA limits. | Measure C not preempted; outside TCA's scope. |
| Does the market-participant doctrine shield the city’s actions from preemption? | T-Mobile asserts the city acted as regulator, not market participant, so TCA applies. | City asserts market participation exempts its actions from preemption. | Court did not rely on market-participant exception; still held Measure C outside preemption. |
| Is Measure C a land-use regulation/decision subject to § 332(c)(7)'s limits? | Measure C would affect land-use decisions on wireless facilities. | Measure C is a standalone voter approval mechanism unrelated to local zoning/regulatory process. | Measure C is outside the TCA’s land-use framework; not preempted. |
| If preemption applies, do the procedural requirements of § 332(c)(7)(B)(ii)-(iii) apply to Measure C? | T-Mobile seeks timely, written, evidence-based decisions; Measure C disrupts that process. | Measure C does not implicate adjudicative procedures; it is an owner-approval mechanism. | Procedural preemption requirements not triggered by Measure C. |
| What is the correct remedy on cross-appeal and remand? | Permanent injunction to allow construction; direct return to permits. | Remand sufficient to align with TCA requirements. | Remainder moot; court remanded for proceedings consistent with opinion. |
Key Cases Cited
- Kay v. City of Rancho Palos Verdes, 504 F.3d 803 (9th Cir. 2007) (preserves local land-use authority while limiting federal preemption scope)
- MetroPCS v. City of San Francisco, 400 F.3d 715 (9th Cir. 2005) (preemption context for wireless facilities; distinguishes nonregulatory actions)
- Sprint Spectrum L.P. v. Mills, 283 F.3d 404 (2d Cir. 2002) (landowner decisions on property not inherently regulatory; preemption limited)
- Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490 (2d Cir. 1999) (TCA procedural requirements for adjudicative decisions)
- City of Rancho Palos Verdes v. Abrams, 544 U.S. 113 (2005) (statutory framework for local land-use vs. federal preemption)