Metropolitan News-Enterprise


Thursday, December 12, 2013


Page 1


Ninth Circuit Rules U.S. Law Doesn’t Preempt Local Voters From Voting Down Phone Antenna Construction


By JUSTIN LEVINE, Staff Writer


The federal Telecommunications Act of 1996 does not preempt the City of Huntington Beach from requiring a company to obtain voter approval before constructing a mobile telephone antenna on its city-owned park property, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Residents of Huntington Beach passed Measure C, a charter amendment, in 1990. It bars any structure costing more than $100,000 from being built in any park or beach without prior approval from a majority of voters and city council members.

In September 2007, the city approved zoning permits for the T-Mobile wireless phone company to construct mobile phone antennas at two of its parks. In April 2009, the city suspended its permits after learning that the costs of construction would be over $100,000 for each antenna, far in excess of T-Mobile’s originally stated budget.

T-Mobile sued the city in response. U.S. District Judge Gary Klausner ruled that Measure C’s provisions violated the Telecommunications Act, which requires a local government to act on requests to construct wireless facilities “within a reasonable period of time” and to provide a written explanation “supported by substantial evidence” in the event of a denial.

Klausner held that because Measure C failed to comply with these procedural requirements, it was preempted by the federal law. At the same time, he allowed Hunting Beach to conduct an “advisory” election on T-Mobile’s antenna construction. Voters in the city rejected a proposal to allow the construction by 56.4%.

After the voters’ rejection, the city appealed Klausner’s ruling, arguing that the Telecommunications Act did not preempt Measure C because the market participant doctrine shielded decisions about use of its own property from federal preemption. It also alternatively argued that Measure C was not preempted because it was consistent with the federal law’s procedural requirements.

The Ninth Circuit reversed, but on alternative basis. It ruled that the requirements imposed by Measure C fell outside the Telecommunication Act’s preemptive scope altogether since it was not part of the city government’s zoning and land use decision-making process.

Writing for a unanimous panel, Judge Sandra Ikuta said that § 332(c)(7) of the act, “functions to preserve local land use authorities’ legislative and adjudicative authority subject to certain substantive and procedural limitations.”

Analyzing the text of the statute, Ikuta said that the act preempts a local land use authority’s legislative regulations if they fail to incorporate the requirements of § 332(c)(7)(B)(i) and (iv), which prevents local and state governments from prohibiting personal wireless services, unreasonably discriminating against providers of equivalent services or regulating them on the basis of the environmental effects of radio frequency emissions when they otherwise comply with federal regulations.

She also said that the Act preempts local land use authorities’ adjudicative decisions under § 332(c)(7)(B)(ii) and (iii) if the procedures for making such decisions do not meet the minimum requirements of replying to construction requests within a reasonable time and providing a written evidentiary record in the case of a denied permit.

After considering the preemptive clauses in the Telecommunications Act, Ikuta said that none of them applied to Measure C because it was “not the sort of local land use regulation or decision that is subject to [its] limitations.”

She wrote:

“Unlike a legislative land use regulation, Measure C does not classify public and private property or impose design and use restrictions on the different classifications. Indeed, Measure C does not prevent the City from agreeing to any sort of construction or use of public land, provided that the City obtains public approval. Nor was Measure C promulgated by the local governmental authorities (i.e., the City Council or Planning Commission) that are authorized by law to engage in such legislative land use decision making. Measure C simply provides a mechanism for the City, through the voters, to decide whether to allow construction on its own land. It does not regulate or impose generally applicable rules on ‘the placement, construction, and modification of personal wireless service facilities,’...and so the substantive limitations imposed by these subsections are inapplicable.”

She said that Measure C was not the kind of local land use decision that fulfills an adjudicative function, and therefore the act’s requirements of providing timely decisions with written explanations for permit denials were inapplicable.

“By its terms, the [Act] applies only to local zoning and land use decisions and does not address a municipality’s property rights as a landowner,” Ikuta concluded. Because Measure C was “non-regulatory and non-adjudicative behavior akin to an action by a private land owner,” she said, it fell outside the parameters of the federal law’s preemptive scope.

The appeals court remanded the case back to the district court and did not address Hunting Beach’s argument regarding the market participant exception to federal preemption doctrine.

The case is Omnipoint Communications, Inc. v. City of Huntington Beach, 10-56877.


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