Cities May Bar Phone Poles Based on Aesthetics

Wednesday, March 21, 2018

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Court of Appeal:

Cities May Bar Phone Poles Based on Aesthetics

First District Says New Lines May Be Ordered to Be Placed Underground to Avoid Unsightliness But Where Poles Already Exist, It’s Unreasonable to Restrict Adding Thin Cables to Them

By a MetNews Staff Writer

—AP

Cities may bar installation of new telephone poles for aesthetic reasons, the Court of Appeal has decided.

A local governmental entity may require telephone companies to install new lines underground based on aesthetic concerns, the First District Court of Appeal has held, but declared that it was unreasonable for the City of Livermore to bar the addition of a half-inch thick cable to poles that already existed.

The opinion reverses a decision by the Alameda Superior Court denying a writ of mandate sought by Pacific Bell Telephone Co. ordering that the city issue it the permit needed to entwine fiber optic cables on existing lines. Livermore gave it the choice of either placing the cables below surface or doing what it wanted to—stringing them from poles—but conditioned on it paying “in lieu,” the cost of a subterranean installation.

Building on precedent, the opinion, by Presiding Justice William R. McGuiness of Div. Three, appears to find that a municipality could declare all telephone poles and lines to be eyesores and prohibit construction of any new ones. Despite its potential scope if citable as precedent, the opinion was not certified for publication.

‘Visual Clutter”

Livermore, with a population of about 90,000, has indicated its desire to deter erection of new phone poles. It declared in the city council resolution denying Pacific Bell’s permit application that it wanted to “set a precedent” against increasing “visual clutter...as new lines are added over time.”

The opinion notes a previous First District case which, in a footnote, alludes to a San Francisco electrical code provision which, it recites, “prohibits the construction of poles and overhead wires in certain areas” of the city/county. McGuiness does not specifically address the prospect of all new phone poles in a city or county being outlawed for “aesthetic” reasons.

Although filed Dec. 28, the opinion was not transmitted to the Judicial Council for posting on its website until Monday. That delay in a First District opinion becoming public was considerably less than one which occurred when, in the wake of the 1906 San Francisco fire, a decision did not surface until two years later.

Statute in Issue

McGuiness wrote:

“It has long been recognized that the maintenance of a telecommunications network is primarily a matter of statewide rather than local concern. Consequently, California generally affords telephone companies the right to install and maintain lines along public roads without the need to obtain a grant of authority from a local legislative body….Nevertheless, local governments retain some power over the construction and placement of telephone lines.”

He cited Public Utilities Code §7901 which provides:

“Telegraph or telephone corporations may construct lines of telegraph or telephone lines along and upon any public road or highway, along or across any of the waters or lands within this State, and may erect poles, posts, piers, or abutments for supporting the insulators, wires, and other necessary fixtures of their lines, 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 jurist, citing precedent, said:

“ ‘Incommode’ as used in section 7901 encompasses aesthetic concerns as well as traffic flow and safety issues.”

Pacific Bell contended that because the statute refers to “poles,” it may erect poles, unimpeded by local authorities. McGuiness responded:

“Section 7901 simply provides that a telephone company may construct the necessary infrastructure to support a telecommunications network, but it does not necessarily guarantee that the infrastructure will take a particular form, such as aboveground wires and poles. For example, section 7901 mentions that telephone companies may erect ‘piers’ and ‘abutments’ as well as ‘poles,’ but it is plainly not the case that telephone companies have a right to construct piers and abutments when those structures serve no purpose. The same is true of poles, which are unnecessary when telephone lines are placed underground.”

Having agreed with Livermore that a city may deny permits for telephone poles, McGuiness declared that the permit application in issue was wrongfully spurned. The resolution denying the application “does not contain any finding that Pacific Bell’s proposed installation of fiber optic cable, considered alone, would degrade the aesthetics of the neighborhood or materially contribute to visual clutter,” he wrote, explaining:

“Pacific Bell’s application involved entwining a small fiber optic cable with preexisting, larger copper telephone lines strung across three existing poles, which carried not only telephone lines but also cable television and electrical wires. There was no evidence before the City, much less substantial evidence, that neighborhood aesthetics would be degraded by the addition a small fiber optic cable to the existing telecommunications infrastructure. We observe that the option offered by the City of allowing Pacific Bell to pay a deposit in lieu of undergrounding the fiber optic cable undercuts the argument that undergrounding is necessary to preserve the neighborhood’s aesthetics.”

The case is Pacific Bell Co. v. City of Livermore, A136714.