T-Mobile West LLC v. City & County of San FranciscoT-Mobile West LLC v. City & County of San Francisco
BRUINIERS, J.—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 statewide 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.” (
T-Mobile West LLC, Crown Castle NG West LLC,3 and ExteNet Systems (California) LLC (collectively Plaintiffs) are considered “telephone corporations” under California law. (
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.
“(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 the 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
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
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 (Pacific Gas and Electric Company) have also installed certain equipment, including backup battery units, antennas, cutoff 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
Following posttrial briefing and argument, the trial court issued its proposed statement of decision, to which both parties objected. On November 26, 2014, the trial court overruled the objections, issued its final statement of decision, and entered final judgment. The court ruled in favor of Plaintiffs on their fifth cause of action, holding that modification provisions of the Ordinance and DPW regulations violate section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012. With respect to Plaintiffs’ third cause of action, the trial court found portions of the Ordinance, conditioning issuance of a permit on economic or technological necessity, were preempted by Public
In concluding that sections 7901 and 7901.1 did not impliedly preempt the City‘s power to impose aesthetic conditions, the court rejected Plaintiffs’ argument that the public right-of-way is incommoded only by physical obstruction of travel. The court concluded Palos Verdes Estates, supra, 583 F.3d 716 “correctly viewed the public‘s right to the ‘use of the road’ as encompassing far more than merely getting from place to place.” The trial court also agreed with the Palos Verdes Estates court that “the passage of [section] 7901.1 in 1995 codified and bolstered the right of local government to control and regulate construction of telecommunications facilities and for that reason . . . the Wireless Ordinance is not pre-empted by [section] 7901.1.”
The trial court found Plaintiffs’ equipment and facilities installed in the public rights-of-way to be “generally similar in size and appearance” to equipment installed by “landline” telephone corporations, cable television operators, and PG&E. Nonetheless, the trial court also rejected Plaintiffs’ “secondary argument” that the Ordinance directly conflicts with the equivalence requirement found in section 7901.1, subdivision (b). The court agreed Plaintiffs had failed to sustain their burden of proving the Ordinance was invalid on its face because of this lack of equivalency. The court further explained: “[T]urning to the merits of Plaintiffs’ contention[,] the Court agrees that the term all entities means just that and is not limited to telephone and telegraph corporations. However, Plaintiffs have failed to provide reasoning or authority that justifies a finding that [section] 7901.1 requires that all entities, whatever or whoever they may be, must be subject to regulation under the Wireless Ordinance or something similar.”
Plaintiffs filed a timely notice of appeal from the judgment.8 After Plaintiffs filed their notice of appeal, the board of supervisors adopted Ordinance No. 18-15 (the Amended Ordinance) in order to comply with the trial court‘s judgment.9 In relevant part, the Amended Ordinance retains the same basic permitting structure, but simplifies the standards applicable to proposed wireless facilities by removing the size-based tiers. (See S.F. Pub.
II. Discussion
The question on appeal is whether the Ordinance, on its face, conflicts with and is preempted by
We review questions of statutory interpretation and preemption de novo. (Farm Raised Salmon Cases (2008) 42 Cal.4th 1077, 1089, fn. 10 [72 Cal.Rptr.3d 112, 175 P.3d 1170]; Lewis C. Nelson & Sons, Inc. v. Clovis Unified School Dist. (2001) 90 Cal.App.4th 64, 69 [108 Cal.Rptr.2d 715].) “‘[T]he construction of statutes and the ascertainment of legislative intent are purely questions of law. This court is not limited by the interpretation of the statute made by the trial court . . . .‘” (Bravo Vending v. City of Rancho Mirage (1993) 16 Cal.App.4th 383, 391–392 [20 Cal.Rptr.2d 164].)
“Facial challenges consider only the text of a measure, not the application of the measure to particular circumstances.” (San Diego Gas & Electric Co. v. City of Carlsbad (1998) 64 Cal.App.4th 785, 803 [75 Cal.Rptr.2d 534]; accord, Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084 [40 Cal.Rptr.2d 402, 892 P.2d 1145].) “Facial challenges to legislation are the most difficult to successfully pursue because the challenger must ‘“demonstrate that ‘no set of circumstances exists under which the [law] would be valid.’ [Citation.]“’ [Citation.] Thus, the moving party must establish that the challenged legislation inevitably is in total, fatal conflict with applicable prohibitions.” (Sierra Club v. Napa County Bd. of Supervisors (2012) 205 Cal.App.4th 162, 173 [139 Cal.Rptr.3d 897].) “[O]ur task is to determine whether the statute can constitutionally be applied. ‘To support a determination of facial unconstitutionality, voiding the statute as a whole, [plaintiffs] cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute . . . . Rather, [plaintiffs] must demonstrate that the act‘s provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions.‘” (Arcadia Unified School Dist. v. State Dept. of Education (1992) 2 Cal.4th 251, 267 [5 Cal.Rptr.2d 545, 825 P.2d 438].)12
Preemption analysis “consists of four questions, which in order of increasing difficulty may be listed as follows: (1) Does the ordinance duplicate any state law? (2) Does the ordinance contradict any state law? (3) Does the ordinance enter into a field of regulation which the state has expressly reserved to itself? (4) Does the ordinance enter into a field of regulation from which the state has implicitly excluded all other regulatory authority?” (Bravo Vending v. City of Rancho Mirage, supra, 16 Cal.App.4th at p. 397.) “‘[A]bsent a clear indication of preemptive intent from the Legislature,’ we presume that local regulation ‘in an area over which [the local government] traditionally has exercised control’ is not preempted by state law. [Citation.] ‘The party claiming that general state law preempts a local ordinance has the burden of demonstrating preemption.‘” (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1242 [63 Cal.Rptr.3d 398, 163 P.3d 89]; see Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139, 1149 [45 Cal.Rptr.3d 21, 136 P.3d 821].)
“A local ordinance duplicates state law when it is ‘coextensive’ with state law. [Citation.] [¶] A local ordinance contradicts state law when it is inimical to or cannot be reconciled with state law. [Citation.] [¶] A local ordinance enters a field fully occupied by state law in either of two situations—when the Legislature ‘expressly manifest[s]’ its intent to occupy the legal area or when the Legislature ‘impliedly’ occupies the field. [Citations.] [¶] When the Legislature has not expressly stated its intent to occupy an area of law, we look to whether it has impliedly done so. This occurs in three situations: when ‘(1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the’ locality.” (O‘Connell v. City of Stockton (2007) 41 Cal.4th 1061, 1067–1068 [63 Cal.Rptr.3d 67, 162 P.3d 583].)
A. Implied Preemption by Sections 7901 and 7901.1
Plaintiffs raise several discrete arguments for reversal. First, Plaintiffs urge section 7901 gave them a right to construct and maintain their facilities in public rights-of-way throughout the state “‘without further discretionary approval by local governments.‘” They do not claim “the City lacks all authority to regulate the telephone corporations’ exercise of their [s]ection 7901 rights, rather Plaintiffs argue that the Wireless Ordinance is an act in excess of the limited [ministerial] authority the Legislature reserved to the City.” In the alternative, Plaintiffs argue that section 7901‘s plain language indicates the Legislature impliedly sought to prohibit any local government regulation of aesthetics.
Plaintiffs’ first argument appears to be premised on the mistaken understanding that local government has no authority to regulate Plaintiffs’ installations unless specifically authorized to do so by statute. The relevant question is not, as Plaintiffs posit, whether
The California Constitution provides: “A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.” (
Telegraph and telephone corporations have long been granted the right (franchise) to construct their lines along and upon public roads and highways throughout the state. (Sunset Tel. and Tel. Co. v. Pasadena (1911) 161 Cal. 265, 272–273 [118 P. 796] [discussing Civ. Code, former § 536]; Pacific Telephone I, supra, 51 Cal.2d at pp. 770–771.) That franchise, however, also has long been subject to regulation to ensure such lines do not “incommode” the public‘s use of those roads and highways. (Civ. Code, former § 536, as amended by Stats. 1905, ch. 385, § 1, pp. 491–492; Stats. 1951, ch. 764, pp. 2025, 2194, 2258 [reenacting Civ. Code, former § 536 as
The Legislature later confirmed local government‘s “right to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed” in its enactment of section 7901.1. (
The City concedes Plaintiffs are “telephone corporations” seeking to install “telephone lines” under section 7901. (See
In Pacific Telephone I, supra, 51 Cal.2d 766, our Supreme Court held the construction and maintenance of telephone lines in public streets is a matter of state concern, not a municipal affair, under
Plaintiffs suggest the Pacific Telephone I holding is determinative and that, if the construction and maintenance of telephone lines is a statewide concern, localities may not regulate Plaintiffs’ access to the right-of-way by
“The right of telephone corporations to construct telephone lines in public rights-of-way is not absolute. It has been observed by our Supreme Court that section 7901 grants ‘a limited right to use the highways and [does so] only to the extent necessary for the furnishing of services to the public.’ (County of L. A. v. Southern Cal. Tel. Co. [(1948)] 32 Cal.2d [378,] 387 [196 P.2d 773].) The text of section 7901 provides that telephone lines may not ‘incommode the public use of the road or highway . . . .’ (Ibid.) Section 7901.1 states ‘[i]t is the intent of the Legislature, consistent with Section 7901, that municipalities shall have the right to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed.’ (§ 7901.1, subd. (a).) ‘The control, to be reasonable, shall, at a minimum, be applied to all entities in an equivalent manner.’ (§ 7901.1, subd. (b).) [¶] In addition, section 2902 states that municipal corporations may not ‘surrender to the [Public Utilities Commission] its powers of control to supervise and regulate the relationship between a public utility and the general public in matters affecting the health, convenience, and safety of the general public, including matters such as the use and repair of public streets by any public utility, the location of the poles, wires, mains, or conduits of any public utility, on, under, or above any public streets, and the speed of common carriers operating within the limits of the municipal corporation.‘” (City of Huntington Beach v. Public Utilities Com., supra, 214 Cal.App.4th at pp. 590–591.) Thus, “the Public Utilities Code specifically contemplates potential conflicts between the rights of telephone corporations to install telephone lines in the public right-of-way and the rights of cities to regulate local matters such as the location of poles and wires.” (Id. at p. 591.)
Instead of preempting local regulation, the statutory scheme (
Plaintiffs appear to concede the Ordinance does not duplicate or contradict state law. Instead, they appear to focus on whether the Ordinance has “manifested its intent to ‘fully occupy‘” any area of regulation exceeding that necessary to prevent physical obstruction of travel on the public right-of-way. (Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 898 [16 Cal.Rptr.2d 215, 844 P.2d 534].) Accordingly, the question is whether the Legislature impliedly preempted the City‘s power to condition approval of a Wireless Permit on aesthetics-based standards. “The Legislature‘s ‘preemptive action in specific and expressly limited areas weighs against an inference that preemption by implication was intended elsewhere.’ [Citations.] In addition, . . . ‘[p]reemption by implication of legislative intent may not be found when the Legislature has expressed its intent to permit local regulations. Similarly, it should not be found when the statutory scheme recognizes local regulations.‘” (Big Creek Lumber Co. v. County of Santa Cruz, supra, 38 Cal.4th at p. 1157.)
“In general, courts are cautious in applying the doctrine of implied preemption: ‘[I]n view of the long tradition of local regulation and the legislatively imposed duty to preserve and protect the public health, preemption may not be lightly found.’ [Citation.] Where local legislation clearly serves local purposes, and state legislation that appears to be in conflict
The Ordinance unquestionably allows the City to condition approval of a particular Wireless Permit on aesthetic considerations. Plaintiffs contend the Legislature impliedly preempted such local regulation by giving telephone corporations the power to install telephone lines in the public right-of-way “in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters.” (
“The relevant principles that guide our decision are well known. ‘““Our function is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. [Citation.] To ascertain such intent, courts turn first to the words of the statute itself [citation], and seek to give the words employed by the Legislature their usual and ordinary meaning. [Citation.] When interpreting statutory language, we may neither insert language which has been omitted nor ignore language which has been inserted. (
“When attempting to ascertain the ordinary, usual meaning of a word, courts appropriately refer to the dictionary definition of that word.” (Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111, 1121–1122 [29 Cal.Rptr.3d 262, 112 P.3d 647].) “If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) . . . .” (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [248 Cal.Rptr. 115, 755 P.2d 299].) “When the language is susceptible of more than one reasonable interpretation, however, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.” (People v. Woodhead (1987) 43 Cal.3d 1002, 1008 [239 Cal.Rptr. 656, 741 P.2d 154].) “We must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.” (People v. Jenkins (1995) 10 Cal.4th 234, 246 [40 Cal.Rptr.2d 903, 893 P.2d 1224].) “The court will apply common sense to the language at hand and interpret the statute to make it workable and reasonable.” (Wasatch Property Management, at p. 1122.)
In contending the trial court erred by adopting the broader interpretation of “incommode,” Plaintiffs rely on Western Union Tel. Co. v. Visalia (1906) 149 Cal. 744, 750 [87 P. 1023] (Visalia) and Pacific Tel. & Tel. Co. v. City & County of San Francisco (1961) 197 Cal.App.2d 133, 152 [17 Cal.Rptr. 687] (Pacific Telephone II). In Visalia, a telegraph company challenged an assessment imposed on a purported local franchise to operate telegraph lines within the City of Visalia. (Visalia, at p. 745.) Our Supreme Court concluded there was no such local franchise because Civil Code former section 536 had already given the telegraph company “the right, of which the city could not deprive it, to construct and operate its lines along the streets of the city.” (Visalia, at p. 750.) The court continued: “[N]evertheless [the telegraph company] could not maintain its poles and wires in such a manner as to unreasonably obstruct and interfere with ordinary travel; and the city had the authority, under its police power, to so regulate the manner of . . . placing and maintaining its poles and wires as to prevent unreasonable obstruction of travel.” (Id. at pp. 750–751.)
In Pacific Telephone II, supra, 197 Cal.App.2d 133, the City argued that the telephone company could not claim a franchise under former section 536 of the Civil Code without first proving that the construction and maintenance of its poles and lines in San Francisco streets would not “incommode” the public use thereof. (Pacific Telephone II, at p. 145.) Division One of this court rejected the argument, reasoning that the City‘s interpretation of Civil Code former section 536 was too restrictive. “Obviously, the Legislature in
Neither Pacific Telephone II nor Visalia considered the issue presented here—whether the aesthetic impacts of a particular telephone line installation could ever “incommode the public use.” We decline Plaintiffs’ invitation to consider the opinions as authority for propositions not considered. (People v. Avila, supra, 38 Cal.4th at p. 566.) In fact, the Pacific Telephone II court stated, “because of the state concern in communications, the state has retained to itself the broader police power of granting franchises, leaving to the municipalities the narrower police power of controlling location and manner of installation.” (Pacific Telephone II, supra, 197 Cal.App.2d at p. 152, italics added.) Thus, the case does not support Plaintiffs’ position that section 7901 prohibits local government from considering aesthetics when issuing individual Wireless Permits. It simply leaves open the question—what kind of control over location and manner can local government exercise?
Although California courts have not yet addressed this precise issue in any published opinion, authority from the United States Court of Appeals for the Ninth Circuit is directly on point. In Palos Verdes Estates, supra, 583 F.3d 716, the City of Palos Verdes Estates denied, for aesthetic reasons, two permits to construct wireless facilities in the public right-of-way. (Id. at p. 719.) A city ordinance authorized Palos Verdes Estates to deny such permit applications on aesthetic grounds. (Id. at pp. 720–721.)
When the telephone company challenged the permit denials, the Palos Verdes Estates court found no conflict between the city‘s consideration of aesthetics and section 7901. The key to that conclusion was the court‘s observation that article XI, section 7 of the California Constitution grants local government authority to regulate local aesthetics and “neither [section] 7901 nor [section] 7901.1 divests it of that authority.” (Palos Verdes Estates, supra, 583 F.3d at pp. 721–722.) The court construed the statutory language, “[t]o ‘incommode’ the public use,” as meaning “to ‘subject [it] to inconvenience or discomfort; to trouble, annoy, molest, embarrass, inconvenience’ or ‘[t]o affect with inconvenience, to hinder, impede, obstruct (an action, etc.).‘” (Id. at p. 723.) It also observed, “‘public use’ of the rights-of-way is not limited to travel” and that “[i]t is a widely accepted principle of urban planning that streets may be employed to serve important social, expressive, and aesthetic functions.” (Ibid.)
Likewise, section 7901.1 did not preempt the local ordinance, as it “was added . . . in 1995 to ’bolster the cities’ abilities with regard to construction management and to send a message to telephone corporations that cities have authority to manage their construction.‘” (Palos Verdes Estates, supra, 583 F.3d at p. 724, italics added, quoting Sen. Com. on Energy, Utilities and Communications, Analysis of Sen. Bill No. 621 (1995–1996 Reg. Sess.) as amended Apr. 17, 1995.) “If the preexisting [‘incommodation‘] language of [section] 7901 did not divest cities of the authority to consider aesthetics in denying [wireless facility] construction permits, then, a fortiori, neither does the language of [section] 7901.1, which only ‘bolsters’ cities’ control.” (Palos Verdes Estates, supra, 583 F.3d at p. 724.) The court concluded, “there is no conflict between [the city‘s] consideration of aesthetics in deciding to deny a [wireless] permit” and
Three years earlier, another panel of the Ninth Circuit reached the opposite conclusion in an unpublished decision Sprint PCS v. La Cañada Flintridge (9th Cir. 2006) 182 Fed. Appx. 688, 689, 691 (La Cañada Flintridge). The La Cañada Flintridge court rejected the dictionary definition of “incommode” and, instead, relied on Pacific Telephone II‘s narrow construction of “incommode.” (Id. at pp. 690–691.) The court determined the city could only prevent “‘unreasonable obstruction of the public use,‘” because “[t]he text focuses on the function of the road—its ‘use,’ not its enjoyment. Based solely on § 7901, it is unlikely that local authorities could deny permits based on aesthetics without an independent justification rooted in interference with the function of the road.” (Ibid., italics omitted.)
Plaintiffs ask us to rely on La Cañada Flintridge, contending that Palos Verdes Estates inadequately addresses California authority. Plaintiffs’ criticism is not well taken. The Palos Verdes Estates court cites Pacific Telephone I for the proposition that a “telephone franchise is a matter of state concern but city still controls the particular location and manner in which public utility facilities are constructed in the streets.” (Palos Verdes Estates, supra, 583 F.3d at p. 723, fn. 3.) We have already expressed our disagreement with Plaintiffs’ broader reading of Pacific Telephone I and thus cannot fault the Palos Verdes Estates court for implicitly reaching the same conclusion or not discussing Visalia, supra, 149 Cal. 744, In re Johnston, supra, 137 Cal. 115, or Sunset Tel. and Tel. Co. v. Pasadena, supra, 161 Cal. 265.
Of course, we are not bound by the Ninth Circuit‘s opinion on matters of state law. (Campbell v. Superior Court (1996) 44 Cal.App.4th 1308, 1317 [52 Cal.Rptr.2d 385].) Although the Palos Verdes Estates opinion is not binding, we find it persuasive. (Adams v. Pacific Bell Directory (2003) 111 Cal.App.4th 93, 97 [3 Cal.Rptr.3d 365]; Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 299 [216 Cal.Rptr. 443, 702 P.2d 601].) We agree with the City and the Palos Verdes Estates court that Plaintiffs’ interpretation of
We believe the La Cañada Flintridge court reached the wrong result through a cursory analysis, in which it interpreted “incommode” too narrowly and adopted a myopic view of the function of public roads. (La Cañada Flintridge, supra, 182 Fed. Appx. at pp. 690–691.) Furthermore, although we are not precluded from considering unpublished federal decisions, we note that even within the Ninth Circuit La Cañada Flintridge has no precedential value. (Bowen v. Ziasun Technologies, Inc. (2004) 116 Cal.App.4th 777, 787, fn. 6 [11 Cal.Rptr.3d 522]; U.S. Cir. Ct. Rules (9th Cir.), rule 36-3(a) [“[u]npublished dispositions and orders of this Court are not precedent, except when relevant under the doctrine of law of the case or rules of claim preclusion or issue preclusion“].)
Nothing in section 7901 explicitly prohibits local government from conditioning the approval of a particular siting permit on aesthetic concerns. In our view, “incommode the public use” means “to unreasonably subject the public use to inconvenience or discomfort; to unreasonably trouble, annoy, molest, embarrass, inconvenience; to unreasonably hinder, impede, or obstruct the public use.” (See Palos Verdes Estates, supra, 583 F.3d at p. 723.)
We cannot agree with Plaintiffs that our construction of the term “incommode” is limitless and “effectively nullifie[s] the Section 7901 franchise.” We
The trial court did not err in determining the Ordinance is not facially preempted by sections 7901 and section 7901.1.
B. Direct Conflict Preemption by Section 7901.1
Plaintiffs also argue that the Ordinance directly conflicts with section 7901.1, subdivision (b), because the City “has singled out wireless equipment” by requiring providers of commercial mobile services alone to obtain site-specific permits while “ignoring the aesthetics of identical equipment installed by other right of way occupants.” Plaintiffs assert the trial court‘s conclusion the Ordinance does not facially conflict with section 7901.1, subdivision (b), “is inconsistent with its [other] factual and legal holdings“—i.e., that other occupants’ equipment is similar in size and appearance and that site-specific permitting requirements are not imposed on other occupants of the right-of-way.
Section 7901.1 provides: “(a) It is the intent of the Legislature, consistent with Section 7901, that municipalities shall have the right to exercise
The City maintains: “[T]he use of the phrase ‘time, place, and manner in which the roads, highways, and waterways are accessed’ clearly refers to local authority to control temporary uses of the public right-of-way during construction. This term implies that the legislature intended to make clear local governments could prevent incommodations both through section 7901 and by controlling the use of the public right-of-way during construction—even if the facilities once constructed (i.e., underground utility facilities) could not themselves incommode the public right-of-way.” (Italics added.) In other words, “[t]he inquiry under section 7901 is whether, once installed, those facilities would ‘incommode’ the public right-of-way. Construction management regulations permitted under section 7901.1 . . . address how the applicant intends to install its facilities in the public right-of-way.” Under the City‘s interpretation, subdivision (b) of section 7901.1 has no application to the Ordinance because it is not a regulation of ”time, place, and manner of construction—but is instead a regulation that permits Wireless Facilities to be installed in the public right-of-way subject to certain siting criteria.” (Italics added.)
Plaintiffs, in their opening brief, contend section 7901.1 defines the limited authority local governments have under section 7901. In their view, sections 7901 and 7901.1 give local governments limited construction management authority, but only to prevent physical obstruction of the roads, not aesthetic incommodation. In the alternative, they contend that, even if the City has the authority to impose discretionary aesthetic regulation, the City‘s application of such control must be equivalent for “all entities.” (See
“Access” means “a way of getting near, at, or to something or someone“; “a way of being able to use or get something“; “permission or the right to enter, get near, or make use of something or to have contact with someone.” (Merriam-Webster Online Dict. <http://www.merriam-webster.com/dictionary/accessed> [as of Sept. 15, 2016].) Although the plain meaning of the word “accessed” is ambiguous, the remainder of section 7901.1 and its legislative history make clear the section is concerned solely with “temporary access” for construction purposes. (See Palos Verdes Estates, supra, 583 F.3d at p. 725 [agreeing the Legislature‘s use of phrase “‘time, place and manner’ in which rights-of-way ‘are accessed‘” “can refer only to when, where, and how telecommunications service providers gain entry to the public rights-of-way“].)
Enactment of section 7901.1 was premised on an understanding that the section 7901 franchise “provide[s] the telephone corporations with the right to construct and maintain their facilities. Local government has limited authority to manage or control that construction. [¶] . . . [¶] . . . This bill is intended to bolster the [cities‘] abilities with regard to construction management and to send a message to telephone corporations that cities have authority to manage their construction, without jeopardizing the telephone corporations’ statewide franchise.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 621 (1995–1996 Reg. Sess.) as amended May 3, 1995, pp. 1, 3, italics added.)
The legislative history of section 7901.1 also provides: “To encourage the statewide development of telephone service, telephone corporations have been given state franchises to build their networks. This facilitates construction by minimizing the ability of local government to regulate construction by telephone corporations. Only telephone companies have statewide franchises; energy utilities and cable television companies obtain local franchises. [¶] . . . [¶] . . . Cities interpret their authority to manage telephone company construction differently. Telephone corporations represent their rights under state franchise differently as well, sometimes taking the extreme position that cities have absolutely no right to control construction. This lack of clarity causes frequent disputes. Among the complaints of the cities are a lack of ability to plan maintenance programs, protect public safety, minimize public inconvenience, and ensure adherence to sound construction practices. Cities are further concerned that multiple street cuts caused by uncoordinated construction shortens the life of the streets, causing increased taxpayer costs, as described in a recently commissioned study.” (Assem. Com. on Utilities and Commerce, Rep. on Sen. Bill No. 621 (1995–1996 Reg. Sess.) as amended July 7, 1995, p. 2, italics added.)
If we were to accept Plaintiffs’ construction of section 7901.1, we would necessarily ignore this legislative history and, more importantly, eliminate the
We understand section 7901.1 as affirming and clarifying a subset of the local government powers, reserved under section 7901, to regulate telephone lines in the right-of-way. Even if the meaning of “all entities” (
III. Disposition
The judgment is affirmed. The City is to recover its costs on appeal.
Simons, Acting P. J., and Needham, J., concurred.
A petition for a rehearing was denied October 13, 2016, and the opinion was modified to read as printed above. Appellant‘s petition for review by the Supreme Court was granted December 21, 2016, S238001.