T-MOBILE WEST LLC et al., Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents.
S238001
IN THE SUPREME COURT OF CALIFORNIA
April 4, 2019
3 Cal.App.5th 334
First Appellate District, Division Five, A144252; San Francisco City and County Superior Court, CGC-11-510703
T-MOBILE WEST LLC v. CITY AND COUNTY OF SAN FRANCISCO
S238001
Opinion of the Court by Corrigan, J.
By ordinance the City and County of San Francisco (the City) requires wireless telephone service companies to obtain permits to
I. BACKGROUND
Plaintiffs are telecommunications companies. They install and operate wireless equipment throughout the City, including on utility poles located along public roads and highways.1 In January 2011, the City adopted ordinance No. 12-11 (the Ordinance),2 which requires “any Person seeking to construct, install, or maintain a Personal Wireless Service Facility in the Public Rights-of-Way to obtain” a permit. (S.F. Pub. Works Code, art. 25, § 1500, subd. (a).) In adopting the Ordinance, the board of supervisors noted that the City “is widely recognized to be one of the world‘s most beautiful cities,” which is vital to its tourist industry and an important reason that residents and businesses locate there. Due to growing demand, requests from the wireless industry to place equipment on utility poles had increased. The board opined that the City needed to regulate the placement of this equipment to prevent installation in ways or locations “that will diminish the City‘s beauty.” The board acknowledged that telephone corporations have a right, under state law, “to use the public rights-of-way to install and maintain ‘telephone lines’ and related facilities required to provide telephone service.” But it asserted that local governments may “enact laws that limit the intrusive effect of these lines and facilities.”
The Ordinance specifies areas designated for heightened aesthetic review. (See S.F. Pub. Works Code, art. 25, § 1502.) These include historic districts and areas that have “‘good‘” or “‘excellent‘” views or are adjacent to parks or open spaces.*
(Ibid.) The Ordinance establishes various standards of aesthetic compatibility for wireless equipment. In historic districts, for example, installation may only be approved if the City‘s planning department
Plaintiffs sought declaratory and injunctive relief. The operative complaint alleged five causes of action, only one of which is at issue.4 It alleges the Ordinance and implementing regulations are preempted by
The trial court ruled that
A. Section 7901 Does Not Preempt the Ordinance
1. Preemption Principles
Under the California Constitution, cities and counties “may make and enforce within [their] limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.” (
“[L]ocal legislation that conflicts with state law is void.” (City of Riverside, supra, 56 Cal.4th at p. 743, citing Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897.) A conflict exists when the local legislation ” ’ ” ‘duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication.’ ” ’ ” (Sherwin-Williams, at p. 897.) Local legislation duplicates general law if both enactments are coextensive. (Ibid., citing In re Portnoy (1942) 21 Cal.2d 237, 240.) Local legislation is contradictory when it is inimical to general law. (Sherwin-Williams, at p. 898, citing Ex parte Daniels (1920) 183 Cal. 636, 641-648.) State law fully occupies a field “when the Legislature ‘expressly manifest[s]’ its intent to occupy the legal area or when the Legislature ‘impliedly’ occupies the field.” (O‘Connell v. City of Stockton (2007) 41 Cal.4th 1061, 1068 (O‘Connell), citing Sherwin-Williams, at p. 898.)
The party claiming preemption has the burden of proof. (Big Creek Lumber, supra, 38 Cal.4th at p. 1149.) “[W]hen local government regulates in an area over which it traditionally has exercised control, such as the location of particular land uses, California courts will presume” the regulation is not preempted unless there is a clear indication of preemptive intent. (Ibid., citing IT Corp. v. Solano County Bd. of Supervisors (1991) 1 Cal.4th 81, 93.) Ruling on a facial challenge to a local ordinance, the court considers the text of the measure itself, not its application to any particular circumstances or individual. (San Francisco Apartment Assn. v. City and County of San Francisco (2016) 3 Cal.App.5th 463, 487, citing Pieri v. City and County of San Francisco (2006) 137 Cal.App.4th 886, 894, which in turn cites Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084.)6
2. Analysis
The parties agree that
Preliminarily, plaintiffs’ argument appears to rest on the premise that the City only has the power to regulate telephone line construction based on aesthetic considerations if
We also disagree with plaintiffs’ contention that
Plaintiffs assert the case law supports their statutory construction. For example, City of Petaluma v. Pac. Tel. & Tel. Co. (1955) 44 Cal.2d 284 (Petaluma) stated that the “franchise tendered by [
Similarly, Pac. Tel. & Tel. Co. v. City of Los Angeles (1955) 44 Cal.2d 272 (City of Los Angeles), held that the “authority to grant a franchise to engage in the telephone business resides in the state, and the city is without power to require a telephone company to obtain such a franchise unless the right to do so has been delegated to it by the state.” (Id. at pp. 279-280.)
But these cases do not go as far as plaintiffs suggest. Each addressed the question whether a telephone corporation can be required to obtain a local franchise to operate. (See Pacific Telephone I, supra, 51 Cal.2d at p. 767; Petaluma, supra, 44 Cal.2d at p. 285; City of Los Angeles, supra, 44 Cal. 2d at p. 276; County of Inyo, supra, 53 Cal.App. at p. 425.) None considered the distinct question whether a local government can condition permit approval on aesthetic or other considerations that arise under the local police power. A permit is, of course, different from a franchise. The distinction may be best understood by considering the effect of the denial of either. The denial of a franchise would completely bar a telephone corporation from operating within a city. The denial of a permit, on the other hand, would simply prevent construction of lines in the proposed manner at the proposed location.
A few published decisions have tangentially addressed the scope of the inherent local police power to regulate the manner and location of telephone line installations. Those cases cut against plaintiffs’ proposed construction.
In Pacific Tel. & Tel. Co. v. City & County of San Francisco (1961) 197 Cal.App.2d 133 (Pacific Telephone II), the City argued
This court, too, has distinguished the power to grant franchises from the power to regulate the location and manner of installation by permit. In Visalia, supra, 149 Cal. 744, the city adopted an ordinance that (i) authorized a telephone company to erect telegraph poles and wires on city streets, (ii) approved the location of poles and wires then in use, (iii) prohibited poles and wires from interfering with travel on city streets, and (iv) required all poles to be of a uniform height. (Id. at pp. 747-748.) The city asserted its ordinance operated to grant the company a ” ‘franchise,’ ” and then attempted to assess a tax on the franchise. (Id. at p. 745.) The company challenged the assessment. It argued that, because the ordinance did not create a franchise, the tax assessment was invalid. (Id. at pp. 745-746.) We concluded the ordinance did not create a local franchise. (Visalia, at p. 750.) By virtue of its state franchise, “the appellant had the right, of which the city could not deprive it, to construct and operate its lines along the streets of the city.” (Ibid.) “[N]evertheless it 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 plaintiff‘s placing and maintaining its poles and wires as to prevent unreasonable obstruction of travel.” (Id. at pp. 750-751, italics added.) “[T]he ordinance in question was not intended to be anything more . . . than the exercise of this authority to regulate.” (Id. at p. 751)10
Plaintiffs argue the italicized language above shows that local regulatory authority is limited to preventing travel obstructions. But the quoted language is merely descriptive, not prescriptive. Visalia involved an ordinance that specifically prohibited interference with travel on city streets, and
Having delineated the right granted by
“The ‘contradictory and inimical’ form of preemption does not apply unless the ordinance directly requires what the state statute forbids or prohibits what the state enactment demands.” (City of Riverside, supra, 56 Cal.4th at p. 743, citing Big Creek Lumber, supra, 38 Cal.4th at p. 1161.) “[N]o inimical conflict will be found where it is reasonably possible to comply with both the state and local laws.” (City of Riverside, at p. 743.) As noted,
The argument that the Legislature occupied the field by implication likewise fails. Field preemption generally exists where the Legislature has comprehensively regulated in an area, leaving no room for additional local action. (See, e.g., American Financial Services Assn. v. City of Oakland (2005) 34 Cal.4th 1239, 1252-1257; O‘Connell, supra, 41 Cal.4th 1061, 1068-1074.) Unlike the statutory schemes addressed in American Financial and O‘Connell,
City of Riverside, supra, 56 Cal.4th 729, is instructive. There, the question was whether state statutes designed to enhance patient and caregiver access to medical marijuana preempted a local zoning law banning dispensaries within a city‘s limits. (Id. at pp. 737, 739-740.) An early enactment had declared that physicians could not be punished for recommending medical marijuana and that state statutes prohibiting possession and cultivation of marijuana would not apply to patients or caregivers. (Id. at p. 744.) A subsequent enactment established a program for issuing medical marijuana identification cards and provided that a cardholder could not be arrested for possession or cultivation in permitted amounts. (Id. at p. 745.) We concluded that the “narrow reach of these statutes” (ibid.) showed they did not “expressly or impliedly preempt [the city‘s] zoning provisions” (id. at p. 752).
Preemption was not implied because the Legislature had not tried “to fully occupy the field of medical marijuana regulation as a matter of statewide concern, or to partially occupy this field under circumstances indicating that further local regulation will not be tolerated.” (City of Riverside, supra, 56 Cal.4th at p. 755.) While state statutes took “limited steps toward recognizing marijuana as a medicine,” they described “no comprehensive scheme or system for authorizing, controlling, or regulating the processing and distribution of marijuana for medical purposes, such that no room remains for local action.” (Ibid.) Moreover, there were significant local interests that could vary by jurisdiction, giving rise to a presumption against preemption. (Ibid.)
Similarly, here, the Legislature has not adopted a comprehensive regulatory scheme. Instead, it has taken the limited step of guaranteeing that telephone corporations need not secure a local franchise to operate in the state or to construct local lines and equipment. Moreover, the statute leaves room for additional local action and there are significant local interests relating to road use that may vary by jurisdiction.
Finally, plaintiffs’ briefing raises arguments that sound in the theory of obstacle preemption. Under that theory, a local law would be displaced if it hinders the accomplishment of the purposes behind a state law. This court has never said explicitly whether state preemption principles are coextensive with the developed federal conception of obstacle preemption. (See, e.g., Great Western Shows, Inc. v. County of Los Angeles (2002) 27 Cal.4th 853, 867-868; cf. City of Riverside, supra, 56 Cal.4th at pp. 763-765 (conc. opn. of Liu, J.).) But assuming for the sake of argument that the theory applies, we conclude there is no obstacle preemption here.
The gist of plaintiffs’ argument is that
Finally, we think it appropriate to consider the Public Utilities Commission‘s (PUC) understanding of the statutory scheme. In recognition of its expertise, we have consistently accorded deference to the PUC‘s views concerning utilities regulation. The PUC‘s “interpretation of the Public Utility Code ‘should not be disturbed unless it fails to bear a reasonable relation to statutory purposes and language.’ ” (Southern California Edison Co. v. Peevey (2003) 31 Cal.4th 781, 796, quoting Greyhound Lines, Inc. v. Public Utilities Com. (1968) 68 Cal.2d 406, 410-411.) Here, the PUC has made determinations about the scope of permissible regulation that are on point.
Consistent with these statutes, the PUC‘s default policy is one of deference to municipalities in matters concerning the design and location of wireless facilities. In a 1996 opinion adopting the general order governing wireless facility construction, the PUC states the general order “recognize[s] that primary authority regarding cell siting issues should continue to be deferred to local authorities. . . . The [PUC‘s] role continues to be that of the agency of last resort, intervening only when a utility contends that local actions impede statewide goals . . . .” (Re Siting and Environmental Review of Cellular Mobile Radiotelephone Utility Facilities (1996) 66 Cal.P.U.C.2d 257, 260; see also Re Competition for Local Exchange Service (1998) 82 Cal.P.U.C.2d 510, 544.)12 The order itself “acknowledges that local citizens and local government are often in a better position than the [PUC] to measure local impact and to identify alternative sites. Accordingly, the [PUC] will generally defer to local governments to regulate the location and design of cell sites . . . .” (PUC, General order No. 159-A (1996) p. 3 (General Order 159A), available at <http://docs.cpuc.ca.gov/PUBLISHED/Graphics/611.PDF> [as of April 3, 2019].)
The exception to this default policy is telling: the PUC reserves the right to preempt local decisions about specific sites “when there is a clear conflict with the [PUC‘s] goals and/or statewide interests.” (General Order 159A, supra, at p. 3.) In other words, generally the PUC will not object to municipalities dictating alternate locations based on local impacts,13 but it will step in if statewide goals such as “high quality, reliable and widespread cellular services to state residents” are threatened.
(General Order 159A, at
Plaintiffs argue our construction of
In sum, neither the plain language of
B. The Ordinance Does Not Violate Section 7901.1
Plaintiffs next contend that, even if not preempted, the Ordinance violates
Plaintiffs argue the plain language of
Plaintiffs’ arguments are unpersuasive.
However, the legislative history shows that
To accept plaintiffs’ construction of
III. DISPOSITION
The judgment of the Court of Appeal is affirmed.
CORRIGAN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion T-Mobile West LLC v. City and County of San Francisco
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 3 Cal.App.5th 334
Rehearing Granted
Opinion No. S238001
Date Filed: April 4, 2019
Court: Superior
County: San Francisco
Judge: James J. McBride
Counsel:
Wiley Rein, Joshua S. Turner, Matthew J. Gardner, Megan L. Brown, Meredith G. Singer; Davis Wright Tremaine, Martin L. Fineman, T. Scott Thompson and Daniel P. Reing for Plaintiffs and Appellants.
Janet Galeria; Jenner & Block, Scott B. Wilkens, Matthew S. Hellman, Adam G. Unikowsky, Erica L. Ross and Leonard R. Powell for the Chamber of Commerce of the United States of America, the California Chamber of Commerce, the San Francisco Chamber of Commerce, the Bay Area Council and the Silicon Valley Leadership Group as Amici Curiae on behalf of Plaintiffs and Appellants.
Mayer Brown, Hans J. Germann, Donald M. Falk and Samantha Booth for Pacific Bell Telephone Company and AT&T Mobility, LLC, as Amici Curiae on behalf of Plaintiffs and Appellants.
Crowell & Moring, Emily T. Kuwahara and Colin Proksel for American Consumer Institute Center for Citizen Research as Amicus Curiae on behalf of Plaintiffs and Appellants.
Wilkinson Barker Knauer, Christine M. Crowe and Craig E. Gilmore for CTIA-The Wireless Association and the Wireless Infrastructure Association as Amici Curiae on behalf of Plaintiffs and Appellants.
Dennis J. Herrera, City Attorney, Yvonne R. Meré, Chief of Complex and Affirmative Litigation, Christine Van Aken, Chief of Appellate Litigation, William K. Sanders, Erin B. Bernstein and Jeremy M. Goldman, Deputy City Attorneys, for Defendants and Respondents.
Rutan & Tucker, Jeffrey T. Melching and Ajit Singh Thind for League of California Cities, California State Association of Counties, International Municipal Lawyers Association and the States of California and Nevada Chapter of the National Association of Telecommunications Officers and Advisors as Amici Curiae on behalf of Defendants and Respondents.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Joshua S. Turner
Wiley Rein
1776 K Street, N.W.
Washington, D.C. 20006
(202) 719-7000
Jeremy M. Goldman
Deputy City Attorney
1 Dr. Carlton B. Goodlett Place, Room 234
San Francisco, CA 94102-4682
(415) 554-6762