Sprint Telephony Pcs v. County of San Diego

44 Cal.Rptr.3d 754

140 Cal.App.4th 748

SPRINT TELEPHONY PCS, Plaintiff and Appellant, v. COUNTY OF SAN DIEGO et al., Defendants and Respondents.

No. D045957.

Court of Appeal, Fourth District, Division 1.

June 20, 2006.

Buchanan Ingersoll, Daniel T. Pascucci and Nathan R. Hamler, San Diego, for Plaintiff and Appellant.

Ledoux Esquire Inc., Stephen R. Ledoux and Andrew D. Mastin, San Francisco, for T-Mobile USA, Inc., as Amicus Curiae on behalf of Plaintiff and Appellant.

John J. Sansone, County Counsel, and Thomas D. Bunton, Senior Deputy County Counsel, for Defendants and Respondents.

Jennifer B. Henning for California State Association of Counties, as Amicus Curiae on behalf of Defendants and Respondents.

Dennis J. Herrera, City Attorney (San Francisco), Burk E. Delventhal, Chief Government Team Deputy, Owen J. Clements, Chief of Special Litigation, Theresa L. Mueller, Chief Energy and Telecommunications Deputy, and William K. Sanders, Deputy City Attorney, for League of California Cities and City and County of San Francisco as Amicus Curiae on behalf of Defendants and Respondents.

McDONALD, J.

Local governments, reacting to the rapid expansion of wireless cellular communications and accompanying infrastructure, have adopted ordinances to regulate the placement and aesthetics of wireless cellular telephone towers and ancillary equipment through a discretionary permitting process. The Wireless Telecommunications Ordinance (WTO) adopted by defendant County of San Diego (County), the enforceability of which is challenged in this appeal by plaintiff Sprint Telephony PCS, L.P. (Sprint), prescribes an approval process for applications to install cellular telephone infrastructure, including equipment that will be installed in a public right of way (ROW) within County's jurisdiction. In this action, Sprint argues the WTO is invalid under Public Utilities Code section 7901,¹ asserting that section 7901 prevents local governments from regulating the installation of telecommunications equipment in the ROW except insofar as is necessary to accommodate the public's right to use the ROW.² County contends the rights conferred by section 7901 do not apply to cellular telephone equipment at all, or alternatively, the statutory scheme preserves to local governments the power to regulate the location and appearance of equipment placed in the ROW. The trial court upheld the validity of the WTO, and this appeal followed.

I FACTUAL BACKGROUND

A. The Relevant Statutory Scheme

Section 7901 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 language of section 7901 has evolved to reflect some of the technological advances in communications. "The predecessor of [section 7901], Civil Code section 536, was first enacted in 1872 as part of the original Civil Code. [Citation.] The language was identical to the current section except that there was no reference to telephone corporations reading `"Telegraph corporations may construct lines of telegraph along and upon," etc.' [Citation.] The reason for this omission was that the telephone was completely unknown in 1872, not having been invented until 1875. [Citation.] [¶] In 1905, Civil Code section 536 was re-enacted to add telephone corporations and telephone lines to the statute. [Citation.] In 1951, Civil Code section 536 became [section 7901]. The language of section 7901 remains as it was in 1905." (Anderson v. Time Warner Telecom of California (2005) 129 Cal. App.4th 411, 419, 28 Cal.Rptr.3d 289.)

The Public Utilities Code, of which section 7901 is a part, has also undergone an evolutionary process. Shortly after telephone corporations and telephone lines were added to section 7901's predecessor statute, the California Constitution was amended to vest in the Public Utilities Commission (PUC) "the exclusive jurisdiction to supervise and regulate public utilities." (Pacific Tel. & Tel. Co. v. City of Los Angeles (1955) 44 Cal.2d 272, 280, 282 P.2d 36.) Thereafter, the Legislature in 1915 enacted the Public Utilities Act, which required among other things that (1) a telephone corporation that sought to construct telephone lines would first be required to obtain a "certificate [of] public convenience and necessity" (CPCN) from the PUC (Public Utilities Act § 50, subd. (a), (Stats.1915, p. 148)(repealed)), and (2) a telephone corporation that sought to exercise the right to a franchise would first be required to obtain a CPCN from the PUC (id. at subd. (b)). The Public Utilities Act, providing definitions for terms "when used in this act," defined a telephone corporation as every corporation owning or operating a telephone line within the state for compensation (id. at § 2, subds. (a), (t)), and defined a telephone line to include "all conduits, ducts, poles, wires, cables, instruments and appliances, and all other real estate, fixtures, and personal property owned, controlled, operated or managed in connection with or to facilitate communication by telephone . . . ." (Id. at § 2, subds. (a), (s).) The absence of any reference to wireless communications from the initial definition of telephone corporations or telephone lines is understandable because wireless forms of communication were then in their infancy.³

In 1951, the Legislature repealed the Public Utilities Act and incorporated many of its provisions into Part 1 of the Public Utilities Code. (See Stats.1951, ch. 764, § 201 et seq., p. 2027 et seq.) The Legislature continued the requirement that a telephone corporation seeking to embark on new service first obtain a CPCN from the PUC. (§ 1001.) The new law, which provided that many definitions imported from the former Public Utilities Act would "govern the construction of [Part 1 of Division 1 of the Public Utilities Code]" (§ 203), imported without change the definition of a telephone corporation formerly contained in the Public Utilities Act. (§ 234.) The Legislature also imported the definition of a telephone line formerly contained in the Public Utilities Act, but amended that definition to add the clause "whether such communication is had with or without the use of transmission wires."⁴ (§ 233.)

As part of the same enactment, the Legislature also moved former Civil Code section 536 into Division 4 of the Public Utilities Code. Former section 536 became section 7901 without any change to the statutory language. (See Stats.1951, ch. 764, p. 2194, § 7901.)

In 1995, the Legislature adopted section 7901.1, which specified it was "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." (Stats.1951, ch. 764, § 7901, subd. (a), p. 2194.)

B. The County's WTO

General Requirements

In 2003 County enacted the WTO, the stated purpose of which is "to establish comprehensive guidelines for the placement, design and processing of wireless telecommunications facilities in all zones within the County of San Diego." The WTO, which added sections 6980 through 6991 to County's Zoning Ordinance (ZO), establishes a four-tier structure for processing applications for the installation of wireless facilities. (ZO § 6985.) Tier 1 applies to applications for wireless facilities that are invisible or have very low visual impacts. Tier 2 applies to applications for low visibility facilities in commercial, industrial or special purpose zones, or to facilities in any of the zones that are covered by a "Wireless Community Master Plan" (ZO §§ 6985, 6983). Tier 4 applies to noncamouflaged towers greater than 60 feet in height, or 15 feet above the maximum height limit in the zone, whichever is lower, and all facilities in residential and rural zones except those within Tiers 1 and 2. Tier 3 is a residual category that applies to all facilities other than those meeting the criteria of Tiers 1, 2, or 4. (ZO § 6985.) The WTO's permitting process applies to applications to install wireless facilities in a ROW.

The WTO requires all applicants to submit detailed information regarding the proposed wireless facility. Among other things, applicants are required to provide: (1) a map showing all the applicant's existing sites in the local service network associated with the gap the facility is meant to close (ZO § 6984(A)); (2) a visual impact analysis (including photographic simulations) showing the maximum silhouette, viewshed analysis, color and finish palette and proposed screening (id. at subd. (B)); (3) evidence that establishes the proposed facilities have been designed to the minimum height required from a technological standpoint for the proposed site (subd. (C)(1)); (4) the anticipated maintenance and monitoring program for the antennas, back-up equipment and landscaping (subd. (C)(2)); (5) noise and acoustical information (subd. (C)(3)); (6) a plan showing all proposed landscaping, screening and proposed irrigation (subd. (C)(5)); and (7) a letter stating the applicant's willingness to allow other carriers to co-locate on their facilities (subd. (C)(9)). Furthermore, County may "require additional information based upon specific project factors." (Id. at § 6984.)

The WTO also imposes general and design regulations, including the requirements that the facilities be "camouflaged" in residential and rural locations, and be designed to visually blend into the surrounding area in a manner "consistent with community character and existing development," to be "compatible with existing architectural elements,...