April 4, 2019, the California Supreme Court published an opinion supporting municipal authority to make regulations on so-called ‘small cell’ PROW (public right of way, aka ROW) towers and uses of the public’s right-of-way. This opinion affirms the 2016 appellate court ruling.
This opinion seems to go far beyond mere aesthetic standards — the focus of the lawsuit by T-Mobile West LLC — affirming the exercise of municipalities’ full police powers to regulate small cell towers in the public’s right of way, including that municipalities do have discretionary power.
These rulings have bearing on Smart Meters in California because of the affirmation of local policing powers. The Supreme Court and appellate court decisions repudiate CPUC claims of exclusive jurisdiction over utilities made during the Smart Meter roll-out.
An amicus brief was filed May 11, 2017 on behalf of the League of California Cities, California State Association of Counties, the International Municipal Lawyers Association, and SCAN NATOA, Inc. written by Jeffrey T. Melching and Ajit Singh Thind of Rutan and Tucker, LLP with valuable additional information.
These decisions give cities and counties the backbone and legal cover to create and enforce rules and ordinances to protect the public, the environment, and public land. These decisions are vital documents for local officials and decision-makers. Hopefully as well, they will provide support for actions in other states and countries.
Much of the discussion in the Court’s opinion focused on California Public Utilities Code 7901 and 7901.1, the broad definition of the word “incommode” in that section, and the Constitutionally-granted policing powers and “powers of control” of municipalities.
“But travel is not the sole use of public roads; other uses may be incommoded beyond the obstruction of travel. (T-Mobile West, at pp. 355-356.) For example, lines or equipment might generate noise, cause negative health consequences, or create safety concerns. All these impacts could disturb public road use, or disturb its quiet enjoyment.”
I am not an attorney. As a member of the public, I have the right and responsibility to discuss the people’s law. To get legal advice on this decision, consult with an attorney.
Excerpts the California Supreme Court opinion (underlining is mine):
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.” (Cal. Const., art. XI, § 7.) General laws are those that apply statewide and deal with matters of statewide concern. (Eastlick v. City of Los Angeles (1947) 29 Cal.2d 661, 665.) The “inherent local police power includes broad authority to determine, for purposes of the public health, safety, and welfare, the appropriate uses of land within a local jurisdiction’s borders.” (City of Riverside v. Inland Empire Patients Health & Wellness Center, Inc. (2013) 56 Cal.4th 729, 738 (City of Riverside); see also Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139, 1151 (Big Creek Lumber).) The local police power generally includes the authority to establish aesthetic conditions for land use. (Ehrlich v. City of Culver City (1996) 12 Cal.4th 854, 886; Disney v. City of Concord (2011) 194 Cal.App.4th 1410, 1416.)
The parties agree that section 7901 grants telephone corporations a statewide franchise to engage in the telecommunications business. (See Western Union Tel. Co. v. Visalia (1906) 149 Cal. 744, 750 (Visalia).) Thus, a local government cannot insist that a telephone corporation obtain a local franchise to operate within its jurisdiction. (See Visalia, ta p. 751; see also Pac. Tel. & Tel. Co. v. City and County of S.F.(1959) 51 Cal.2d 766, 771 (Pacific TelephoneI) The parties also agree that the franchise rights conferred are limited by the prohibition against incommoding the public use of roads, and that local governments have authority to prevent those impacts.
…the City has inherent local police power to determine the appropriate uses of land within its jurisdiction. That power includes the authority to establish aesthetic conditions for land use….
We also disagree with plaintiffs’ contention that section 7901’s incommode clause limits their right to construct [telephone] lines only if the installed lines and equipment would obstruct the path of travel. Contrary to plaintiffs’ argument, the incommode clause need not be read so narrowly. As the Court of Appeal noted, the word “ ‘incommode’ ” means “ ‘to give inconvenience or distress to: disturb.’ ” (T-Mobile West, supra, 3 Cal.App.5th at p. 351, citing Merriam-Webster Online Dict., available at <http://www.merriam-webster.com/dictionary/incommode> [as of April 3, 2019].)8 The Court of Appeal also quoted the definition of “incommode” from the 1828 version of Webster’s Dictionary. Under that definition, “incommode” means “ ‘[t]o give inconvenience to; to give trouble to; to disturb or molest in the quiet enjoyment of something, or in the facility of acquisition.’ ” (T-Mobile West, supra, 3 Cal.App.5th at p. 351, citing Webster’s Dict. 1828—online ed., available at <http://www.webstersdictionary1828.com/Dictionary/incommod e> [as of April 3, 2019].) For our purposes, it is sufficient to state that the meaning of incommode has not changed meaningfully since section 7901’s enactment.9 Obstructing the path of travel is one way that telephone lines could disturb or give inconvenience to public road use. But travel is not the sole use of public roads; other uses may be incommoded beyond the obstruction of travel. (T-Mobile West, at pp. 355-356.) For example, lines or equipment might generate noise, cause negative health consequences, or create safety concerns. All these impacts could disturb public road use, or disturb its quiet enjoyment.
The “right of telephone corporations to construct telephone lines in public rights-of-way is not absolute.” (City of Huntington Beach v. Public Utilities Com. (2013) 214 Cal.App.4th 566, 590 (City of Huntington Beach).) Instead, it is a “ ‘limited right to use the highways . . . only to the extent necessary for the furnishing of services to the public’” (Ibid., quoting County of L.A. v. Southern Cal.Tel.Co. (1948) 32 Cal.2d 378, 387:…
The gist of plaintiffs’ argument is that section 7901’s purpose is to encourage technological advancement in the state’s telecommunications networks and that, because enforcement of the Ordinance could hinder that purpose, the Ordinance is preempted. But no legislation pursues its objectives at all costs. (Pension Ben. Guar. Corp. v. LTV Corp. (1990) 496 U.S. 633, 646-647.) Moreover, the Legislature made clear that the goal of technological advancement is not paramount to all others by including the incommode clause in section 7901, thereby leaving room for local regulation of telephone line installation.
The state Constitution vests principal regulatory authority over utilities with the PUC, but carves out an ongoing area of municipal control. (Cal. Const., art. XII, § 8.) A company seeking to build under section 7901 must approach the PUC and obtain a certificate of public necessity. (§ 1001; see City of Huntington Beach, supra, 214 Cal.App.4th at p. 585.) The certificate is not alone sufficient; a utility will still be subject to local control in carrying out the construction. Municipalities may surrender to the PUC regulation of a utility’s relations with its customers (§ 2901), but they are forbidden from yielding to the PUC their police powers to protect the public from the adverse impacts of utilities operations (§ 2902).
Footnote 13: Among the PUC’s express priorities regarding wireless facility construction is that “the public health, safety, welfare, and zoning concerns of local government are addressed.” (General Order 159A, supra, at p. 3)
It is eminently reasonable that a local government may: (1) control the time, place, and manner of temporary access to public roads during construction of equipment facilities; and (2) regulate other, longer term impacts that might incommode public road use under Section 7901. Thus, we hold that section 7901.1 only applies to temporary access during construction and installation of telephone lines and equipment…
California Supreme Court opinion, T-Mobile West LLC et al. v City and County of San Francisco et al, April 4, 2019
Amicus brief by League of California Cities, California State Association of Counties, International Municipal Lawyers Association and SCAN NATOA, Inc., T-Mobile West LLC et al. v City and County of San Francisco et al, May 11, 2017
Appellate decision 9-16, T-Mobile West LLC et al. v City and County of San Francisco et al., September 15, 2016
California Public Utilities Code
7901. 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.
7901.1. (a) It is the intent of the Legislature, consistent with Section 7901, that municipalities shall have the right to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed.
(b) The control, to be reasonable, shall, at a minimum, be applied to all entities in an equivalent manner.
(c) Nothing in this section shall add to or subtract from any existing authority with respect to the imposition of fees by municipalities.
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2901. Any municipal corporation may retain or surrender to the [Public Utilities] commission the powers of control vested in it to supervise and regulate the relationship between any one or more classes of public utilities, and their present or prospective customers, consumers, or patrons, and, if it has retained such powers over any class of public utilities, may thereafter surrender such powers to the commission.
2902. This chapter shall not be construed to authorize any municipal corporation to surrender to the commission its powers of control to supervise and regulate the relationship between a public utility and the general public in matters affecting the health, convenience, and safety of the general public, including matters such as the use and repair of public streets by any public utility, the location of the poles, wires, mains, or conduits of any public utility, on, under, or above any public streets, and the speed of common carriers operating within the limits of the municipal corporation.
2903. Unless the context otherwise requires, the definitions and general provisions set forth in this article govern the construction of this chapter.
2904. “Municipal corporation” means a city and county or incorporated city.
2905. “Legislative body” means the board of supervisors, municipal council, commission, or other legislative or governing body of a municipal corporation.
2906. “Powers of control” means all powers of control vested in a municipal corporation to supervise and regulate (a) the relationship between public utilities and their present or prospective customers, consumers, or patrons. The term does not include the powers of control vested in any municipal corporation to supervise and regulate the relationship between such public utilities and the general public in matters affecting the health, convenience, and safety of the general public, including matters such as the use and repair of public streets by any public utility, the location of the poles, wires, mains, or conduits of any public utility, on, under, or above any public streets, and (b) the speed of common carriers operating within the limits of the municipal corporation.