Palos Verdes Estates Wins Cell Tower Appeal Against Sprint in Ninth Circuit Ruling 1

Sprint cannot install two proposed cell towers in the city of Palos Verdes Estates, the Ninth Circuit Court ruled yesterday, reversing a lower court ruling which the city appealed.

Sprint originally applied to install ten towers; the city granted eight of the applications but denied two: one because it would be on a narrow residential street, the other because it would be located on one of the four main entrances to the city.

The court ruled that the city’s aesthetic objections were consistent with its zoning practices, and that Sprint had not proved denial would cause a “significant gap in coverage” or specified why it could not upgrade existing infrastructure which the company claimed needed to be replaced.

According to the published opinion:

Sprint acknowledged that it already served four thousand customers in the City with its existing network but stated that the proposed WCFs were nonetheless needed to replace its existing infrastructure.

It describes a city staff “drive test” through the city confirming adequate coverage, and Sprint’s subsequent lawsuit on the grounds that the city council had violated provisions of the Federal Telecommunications Act of 1996. A lower court ruled in Sprint’s favor, but based its decision on an interpretation of California, not federal, law. The Ninth Circuit opinion disagrees with the application of the relevant California code, and notes that:

This determination was premised on a legal conclusion that California law prohibits the City from basing its decision on aesthetic considerations.

The Ninth Circuit’s discussion of the Telecom Act’s scope and provisions is especially timely given the FCC’s recent announcement that it would help the wireless industry override local zoning restrictions. In this decision, the court says:

On the one hand, the statute is intended to “encourage the rapid deployment of new telecommunications technologies.”

…On the other hand, it seeks “to preserve the authority of State and local governments over zoning and land use matters.”

…this Court may not overturn the [City’s] decision on ‘substantial evidence’ grounds if that decision is authorized by applicable local regulations and supported by a reasonable amount of evidence.”

…Thus, we must determine (1) whether the City’s decision was authorized by local law and, if it was, (2) whether it was supported by a reasonable amount of evidence. Both requirements are satisfied here.

…The district court erred in concluding that the City’s consideration of aesthetics was invalid under the [Public Utilities Code]. The California Constitution gives the City the authority to regulate local aesthetics, and neither PUC § 7901 nor PUC § 7901.1 divests it of that authority.