From the Board Agenda posted online:

Recommendation as submitted by Supervisor Ridley-Thomas: Direct the Interim Director of Planning, in coordination with the Acting County Counsel, to prepare an ordinance amending the County Code that is consistent with State and Federal law regarding the regulation of wireless telecommunication facilities, including the recent court rulings, to maintain the maximum amount of discretion allowed for controversial cases but allow for streamlined policies and permitting procedures for non-controversial projects; also take into consideration, among other things, aesthetic concerns, service gaps and needs and other relevant issues related to the permitting of wireless telecommunication facilities; direct the Interim Director of Planning to present the proposed ordinance to the Planning Commission for its review and consideration, make a recommendation to the Board on an ordinance, and report back in 90 days with a status report.

The motion itself cites the Ninth Circuit’s Sprint v. County of San Diego ruling and Palos Verdes Estates v. Sprint ruling, court interpretations Glendale has drawn on for its draft ordinance. In two recent community meetings on the subject, Glendale’s outside consultant and legal counsel have explained these rulings and their implications for cities with aesthetic and proliferation concerns related to wireless towers.

When Glendale Organized Against Cell Towers formed last year, the core committee contacted a Windsor Hills/View Park group which had been fighting a cell tower installation in the middle of its neighborhood. Part of unincorporated LA County and in Supervisor Mark Ridley-Thomas’ 2nd District, the neighborhood shared resources with Glendale and this year prevailed as the county denied the disputed permit application.

Court says cities have the right to bar telecommunications towers, in Monday’s LA Times, discussed the recent Ninth Circuit Court of Appeals case Palos Verdes Estates v. Sprint, which Sunroom Desk reported on earlier.

The Glendale News-Press published Cell-tower ordinance could still be better, a community commentary by John McMahon which appeared Wedneday, the day of the first scheduled community meeting to discuss the city’s draft wireless ordinance.

The News-Press followed up the next day with a report on the first community meeting.

Also on Thursday, the Orange County Register published a brief report on a La Habra Planning Commission approval of a roof-mounted wireless facility, which concluded “There was a lot of community opposition to the tower.”

Saturday, the Pasadena Star-News reported that a Tiny cell phone antenna still has Pasadena residents on edge. This “tiny” site sparked the controversy in Pasadena that led to a two-year moratorium and a new ordinance that just went into effect. “Yes, it is inconspicuous, only because we fought to have all the accessory equipment under-grounded,” a resident involved in the fight commented.

A further comment she offered as a comparison with Glendale: “There is no requirement by the City of Pasadena to have the Wireless companies maintain or verify that any of these cell sites comply with the FCC standards for EMF emissions…[while] in the first draft of the Glendale wireless ordinance there wil be annual 3rd party checks to verify that the cell sites comply to the FCC standard for EMF emissions.”

At Brand Park tonight at 6:30 p.m., the city will host the second of three community meetings to present the draft wireless ordinance . Now is the time to review and offer comments on the city’s rules for wireless installations.

Those federal and state laws clearly have an excellent grasp over local efforts to control wireless facilities siting.

Glendale public works counsel Christina Sansone, city consultant Jonathan Kramer, and outside counsel Jeff Melching explained how the Telecom Act of 1996, the California Public Utilities Code, and court of appeals rulings have severely limited or left ambiguous how municipalities can regulate placements.

The Glendale ordinance was drafted to give the city more leeway to judge permit applications, but offers limited protection against public right-of-way installations in residential areas. Glendale Organized Against Cell Towers committee members urged the city last night to improve those parts of the ordinance by incorporating setback provisions similar to those in San Diego County (upheld by the Ninth Circuit Court of Appeals).

Two more community meetings will be held so residents and the community can learn about and comment on the draft ordinance. The Glendale News Press has a report on last night’s meeting here.

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.

A brief submitted in favor of Sprint’s petition to appeal the Ninth Circuit’s Sprint v. County of San Diego decision (which the Supreme Court declined to review), by PCIA (the wireless infrastructure association), California Wireless Association, and Newpath Networks, devotes two long paragraphs to Glendale’s 2009 wireless moratorium, its staff report, and its reliance on the Ninth Circuit Sprint decision, and says:

In its report to the Council, city staff made the following assertion about the effects of Sprint II in that it “…create[s]…an opportunity to review and analyze existing ordinances and the current state of the law so that…the City may safeguard Residential Areas from the intrusion of incompatible and potentially disruptive uses through the development of a new ordinance relating to…Wireless Facilities.”…The Glendale Report notes that “many cities have become engaged in comprehensive reviews of their zoning and right-of-way ordinances in order to consider stricter requirements for placements of wireless antennas.“

The subtitle and arguments that precede this passage make it obvious the wireless industry believes this is a bad thing.

PCIA’s comments to the FCC on the National Broadband Plan dwell on community tower siting delays, and also deplore the Ninth Circuit Sprint v. County of San Diego and other court rulings, arguing that

Since this time, numerous communities have taken the opportunity to enact moratoria and more burdensome regulations…For example a local newspaper report of a recent Glendale, CA, moratorium states that the Supreme Court’s decision “could make it harder for companies to challenge Glendale’s upcoming ordinance,” and notes that “[o]n June 8, the City Council extended a moratorium on new cellular antennas in residential areas for an additional year while a new ordinance regulating the equipment is drafted.”

At the beginning of summer 2009, Sunroom Desk reported that the U.S. Supreme Court refused to hear Sprint’s appeal of a Ninth Circuit ruling allowing the County of San Diego to enforce its wireless ordinance.

Toward the end of July 2009, though, the Ninth Circuit ruled in a separate case, T-Mobile USA Inc. v. City of Anacortes, Washington, that “[a local government is] required to show the existence of some potentially available and technologically feasible alternative to the proposed location” once the wireless carrier meets its burden of proof regarding alternative locations.

According to the Anacortes decision, “We conclude that because the City failed to adequately rebut T-Mobile’s prima facie showing that no other location was available and feasible, the district court properly found that the denial of the permit constituted an effective prohibition of coverage.”

T-Mobile in this case had evaluated and rejected numerous alternative sites, while the city hadn’t proposed an acceptable alternative. The Ninth Circuit Anacortes decision, in contrast to the San Diego County decision, constrains local governments by requiring them to identify a less intrusive alternative to a proposed wireless installation, where previously the burden was entirely on the applicant.

One legal analysis of the case is here.

Glendale Organized Against Cell Towers and Glendale city staff have been closely following these legal developments over the summer. Stay tuned for the announcement of a draft wireless ordinance for Glendale.

Meanwhile, Hollywood residents opposed to a cell site installation in their neighborhood have petitioned 4th District Councilmember Tom LaBonge to “consider a wireless Moratorium (a temporary ‘time out’ like they have done in Glendale, Pasadena and other cities) to allow time to study the issue and draft or revise a/the Wireless Ordinance to provide the strongest protections for citizens allowed under state and federal laws.”

Residents organized after learning of an approved 9-panel T-Mobile cell site permit for installation on the roof of the 7100 Hillside Avenue apartments.

Congratulations to the County of San Diego, San Diego County Counsel Tom Bunton, and municipalities and community groups around the country who have been waiting for this affirmation of local zoning rights!

Glendale Organized Against Cell Towers and Glendale city staff working on this city’s wireless ordinance have been awaiting this case’s outcome. According to San Diego County Counsel Tom Bunton, the decision was not unexpected since the U.S. Solicitor General had recommended denial, and the outcome actually narrows telecom providers claims to preemption of local ordinances for both wireless and wireline installations.

As the Ninth Circuit Court decision stands, providers will have to comply with local ordinances requiring proof they actually need an installation instead of claiming they don’t have to comply because any restriction might have the effect of prohibiting telecommunications service.

Glendale Organized Against Cell Towers was pleased with the opinion. The community group and the city have been waiting to see if rights granted to municipalities to enforce restrictions on wireless installations might be threatened by a Supreme Court review.

The case has been litigated through the court system since 2003, with the Ninth Circuit Court reversing its previous decisions in this area and insisting that the cellular provider prove that denial of a permit would actually result in a prohibition of service. The previous standard allowed a company to claim that a denial “may” result in a prohibition of service.

The U.S. Solicitor General seemed to have the same problem with these claims, which were not backed by any specific proof.

Glendale Organized Against Cell Towers based its appeal for a strong wireless ordinance on the September 2008 Ninth Circuit Court of Appeals ruling in this case.

At its March 20, 2009 private conference, the Supreme Court denied most petitions outright, but it postponed a definite decision on three cases, referring them instead to the U.S. Solicitor General for comments. Two of the three cases involved telecommunications companies, including the Sprint PCS v. County of San Diego Case (Docket #08-759). The court order reads:

The Solicitor General is invited to file briefs in these cases expressing the views of the United States.

Glendale Organized Against Cell Towers and other community groups throughout the U.S. have cited a Ninth Circuit Court decision allowing San Diego to enforce its ordinance. Sprint seeks to have the U.S. high court overturn this decision.

San Diego County has fought Sprint PCS on this case in the court system since 2003.

The SCOTUSblog reports:

The U.S. Solicitor General was asked to submit reactions to Level 3 Communications v. St. Louis (08-626) and Sprint Telephony v. San Diego County (08-759), the cases on preemption of local regulation of wireless and fiber optic services. In those cases, two federal Circuit Courts rejected the companies’ argument that the local controls were preempted by federal law — the Telecommunications Act of 1996. The issue in both cases is the scope of a preemption clause in the 1996 Act.