T-Mobile W. LLC v. City of S.F.

6 Cal.5th 1107

438 P.3d 239

245 Cal.Rptr.3d 412

T-MOBILE WEST LLC et al., Plaintiffs and Appellants,

v.CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents.

S238001

Supreme Court of California.

April 4, 2019

Wiley Rein, Joshua S. Turner, Matthew J. Gardner, Megan L. Brown, Meredith G. Singer ; Davis Wright Tremaine, Martin L. Fineman, San Francisco, T. Scott Thompson and Daniel P. Reing for Plaintiffs and Appellants.

Janet Galeria ; Jenner & Block, Scott B. Wilkens, Matthew S. Hellman, Adam G. Unikowsky, Erica L. Ross and Leonard R. Powell for the Chamber of Commerce of the United States of America, the California Chamber of Commerce, the San Francisco Chamber of Commerce, the Bay Area Council and the Silicon Valley Leadership Group as Amici Curiae on behalf of Plaintiffs and Appellants.

Mayer Brown, Hans J. Germann, Donald M. Falk, Palo Alto, and Samantha Booth for Pacific Bell Telephone Company and AT&T Mobility, LLC, as Amici Curiae on behalf of Plaintiffs and Appellants.

Crowell & Moring, Emily T. Kuwahara, Los Angeles, and Colin Proksel for American Consumer Institute Center for Citizen Research as Amicus Curiae on behalf of Plaintiffs and Appellants.

Wilkinson Barker Knauer, Christine M. Crowe and Craig E. Gilmore for CTIA-The Wireless Association and the Wireless Infrastructure Association as Amici Curiae on behalf of Plaintiffs and Appellants.

Dennis J. Herrera, City Attorney, Yvonne R. Meré, Chief of Complex and Affirmative Litigation, Christine Van Aken, Chief of Appellate Litigation, William K. Sanders, Erin B. Bernstein and Jeremy M. Goldman, Deputy City Attorneys, for Defendants and Respondents.

Rutan & Tucker, Jeffrey T. Melching, Costa Mesa, and Ajit Singh Thind for League of California Cities, California State Association of Counties, International Municipal Lawyers Association and the States of California and Nevada Chapter of the National Association of Telecommunications Officers and Advisors as Amici Curiae on behalf of Defendants and Respondents.

Opinion of the Court by Corrigan, J.

By ordinance the City and County of San Francisco (the City) requires wireless telephone service companies to obtain permits to install and maintain lines and equipment in public rights-of-way. Some permits will not issue unless the application conforms to the City’s established aesthetic guidelines. Plaintiffs assert a facial challenge urging that (1) the ordinance is preempted by state law and (2) even if not preempted, the ordinance violates a state statute. The trial court and the Court of Appeal rejected both arguments. We do likewise.

I. BACKGROUND

Plaintiffs are telecommunications companies. They install and operate wireless equipment throughout the City, including on utility poles located along public roads and highways.¹ In January 2011, the City adopted ordinance No. 12-11 (the Ordinance),² which requires "any Person seeking to construct, install, or maintain a Personal Wireless Service Facility in the Public Rights-of-Way to obtain" a permit. (S.F. Pub. Works Code, art. 25, § 1500, subd. (a).) In adopting the Ordinance, the board of supervisors noted that the City "is widely recognized to be one of the world’s most beautiful cities," which is vital to its tourist industry and an important reason that residents and businesses locate there. Due to growing demand, requests from the wireless industry to place equipment on utility poles had increased. The board opined that the City needed to regulate the placement of this equipment to prevent installation in ways or locations "that will diminish the City’s beauty." The board acknowledged that telephone corporations have a right, under state law, "to use the public rights-of-way to install and maintain ‘telephone lines’ and related facilities required to provide telephone service." But it asserted that local governments may "enact laws that limit the intrusive effect of these lines and facilities."

The Ordinance specifies areas designated for heightened aesthetic review. (See S.F. Pub. Works Code, art. 25, § 1502.) These include historic districts and areas that have " ‘good’ " or " ‘excellent’ " views or are adjacent to parks or open spaces. (Ibid .) The Ordinance establishes various standards of aesthetic compatibility for wireless equipment. In historic districts, for example, installation may only be approved if the City’s planning department determines that it would not "significantly degrade the aesthetic attributes that were the basis for the special designation" of the building or district. (S.F. Pub. Works Code, art. 25, § 1502; see also id ., §§ 1508, 1509, 1510.) In "view" districts, proposed installation may not "significantly impair" the protected views.³ (S.F. Pub. Works Code, art. 25, § 1502.)

Plaintiffs sought declaratory and injunctive relief. The operative complaint alleged five causes of action, only one of which is at issue.⁴ It alleges the Ordinance and implementing regulations are preempted by section 7901 and violate section 7901.1. Under section 7901, "telephone corporations may construct ... 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."⁵ According to plaintiffs, section 7901 preempted the Ordinance to the extent it allowed the City to condition permit approval on aesthetic considerations.

Section 7901.1 sets out the Legislature’s intent, "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." (§ 7901.1, subd. (a).) But section 7901.1 also provides that, to be considered reasonable, the control exercised "shall, at a minimum, be applied to all entities in an equivalent manner." (§ 7901.1, subd. (b).) Plaintiffs alleged the Ordinance violated subdivision (b) of section 7901.1 by treating wireless providers differently from other telephone corporations.

The trial court ruled that section 7901 did not preempt the challenged portions of the Ordinance and rejected plaintiffs’ claim that it violated section 7901.1. The Court of Appeal affirmed. ( T-Mobile West , supra , 3 Cal.App.5th at pp. 339, 359, 208 Cal.Rptr.3d 248.)

II. DISCUSSION

A. Section 7901 Does Not Preempt the Ordinance

1. Preemption Principles

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, 177 P.2d 558.) 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, 156 Cal.Rptr.3d 409, 300 P.3d 494 ( City of Riverside ); see also Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139, 1151, 45 Cal.Rptr.3d 21, 136 P.3d 821 ( 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, 50 Cal.Rptr.2d 242, 911 P.2d 429 ; Disney v. City of Concord (2011) 194 Cal.App.4th 1410, 1416, 124 Cal.Rptr.3d 58.)

"[L]ocal legislation that conflicts with state law is void." ( City of Riverside , supra , 56 Cal.4th at p. 743, 156 Cal.Rptr.3d 409, 300 P.3d 494, citing Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897, 16 Cal.Rptr.2d 215, 844 P.2d 534.) A conflict exists when the local legislation " ‘ " ‘duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication.’ " ’ " ( Sherwin-Williams , at p. 897, 16 Cal.Rptr.2d 215, 844 P.2d 534.) Local legislation duplicates general law if both enactments are coextensive. ( Ibid ., citing In re Portnoy (1942) 21 Cal.2d 237, 240, 131 P.2d 1.) Local legislation is contradictory when it is inimical to general law. ( Sherwin-Williams , at p. 898, 16 Cal.Rptr.2d 215, 844 P.2d 534, citing Ex parte Daniels (1920) 183 Cal. 636, 641-648, 192 P. 442.) State law fully occupies a field "when the Legislature ‘expressly manifest[s]’ its intent to occupy the legal area or when the Legislature ‘impliedly’ occupies the field." ( O’Connell v. City of Stockton (2007) 41 Cal.4th 1061, 1068, 63 Cal.Rptr.3d 67, 162 P.3d 583 ( O’Connell ), citing Sherwin-Williams , at p. 898, 16 Cal.Rptr.2d 215, 844 P.2d 534.)

The party claiming preemption has the burden of proof. ( Big Creek Lumber , supra , 38 Cal.4th at p. 1149, 45 Cal.Rptr.3d 21, 136 P.3d 821.) "[W]hen local government regulates in an area over which it traditionally has exercised control, such as the location of particular land uses, California courts will presume" the regulation is not preempted unless there is a clear indication of preemptive intent. ( Ibid ., citing IT Corp. v. Solano County Bd. of Supervisors (1991) 1 Cal.4th 81, 93, 2 Cal.Rptr.2d 513, 820 P.2d 1023.) Ruling on a facial challenge to a local ordinance, the court considers the text of the measure itself, not its application to any particular circumstances or individual. ( San Francisco Apartment Assn. v. City and County of San Francisco (2016) 3 Cal.App.5th 463, 487, 207 Cal.Rptr.3d 684, citing Pieri v. City and County of San Francisco (2006) 137 Cal.App.4th 886, 894, 40 Cal.Rptr.3d 629, which in turn cites Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084, 40 Cal.Rptr.2d 402, 892 P.2d 1145.)⁶

2. Anal...