[RTC List] Court ruling allows local regulation of cell towers

[Sean McLaughlin]

For those in the 9th Circuit...


*Court ruling allows regulation of cell towers*
Bob Egelko, Chronicle Staff Writer <mailto:begelko at sfchronicle.com>
Friday, September 12, 2008
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/09/11/BAAT12SF2D.DTL

*(09-11) 17:42 PDT SAN FRANCISCO* -- A federal appeals court reversed 
itself Thursday and said cities and counties can regulate the location 
and appearance of wireless towers and poles, a ruling that could revive 
a dormant San Francisco ordinance.

The Ninth U.S. Circuit Court of Appeals in San Francisco upheld San 
Diego County's limits on the placement, size and design of towers and 
poles that are needed for companies to provide cell phone service and 
wireless Internet connections. The court also voted 11-0 to discard a 
standard it had established in 2001 that barred local governments from 
adopting any restrictions that "may have the effect of prohibiting" 
wireless services.

Federal courts in the nine-state circuit have relied on the 2001 ruling 
to overturn restrictions on telecommunications structures in several 
communities, including San Francisco and Berkeley. The court said 
Thursday that it had misinterpreted federal law when it issued the 
earlier ruling, and that local governments can regulate wireless towers 
and poles as long as they don't actually prohibit wireless service 
within their borders or create a "significant gap in service coverage."

San Diego County's 2003 ordinance was intended to keep unsightly 
structures out of neighborhoods. It required poles to be camouflaged in 
residential areas, set height limits, required companies to submit a 
"visual impact analysis," and allowed a zoning board to deny an 
application if it was inconsistent with the character of the community. 
Two courts had overturned the ordinance, based on the 2001 appellate 
standard, before Thursday's ruling reinstated it.

The new ruling gives cities and counties "the ability to even-handedly 
control the environment in our neighborhoods," with no exemption for 
wireless companies, said attorney William Marticorena, president of the 
California-Nevada chapter of a national association of 
telecommunications regulators. "There isn't some special place for the 
telecom operators to put the 50-foot-tall red monopole (cellular tower) 
in front of city hall."

Thomas Bunton, a deputy county counsel who represented San Diego County, 
said the ruling allows local governments to hold public hearings and 
require wireless towers and poles to be concentrated in certain areas 
and camouflaged to fit in with their surroundings.

Lawyers for Sprint, which challenged the San Diego County ordinance, and 
Verizon, which filed supporting arguments, were unavailable for comment.

In San Francisco, Deputy City Attorney William Sanders said the ruling 
could restore portions of a 2007 law that a federal judge struck down in 
June.

The ordinance required wireless companies to seek a city permit before 
locating transmitters or other installations near a park, a historic 
landmark or a building with architectural importance, or on a street 
that the city has designated as scenic.

U.S. District Judge Marilyn Hall Patel, citing the appeals court's 2001 
decision, ruled that the ordinance was invalid because it allowed public 
hearings in permit disputes and failed to set precise standards for 
denying a permit. San Francisco supervisors have already drafted a new 
ordinance to comply with the ruling, but the city now has the option of 
asking Patel to reconsider in light of Thursday's decision, Sanders said.

The 2001 decision was also the basis of a January 2006 appeals court 
ruling that allowed Qwest Communications to install a fiber link to the 
Lawrence Berkeley National Laboratory over the city of Berkeley's 
objections. The court said in 2006 that Berkeley's ordinance, which 
required telecommunications companies to pay a fee or go through an 
extensive permit process, had the effect of denying service.

Marticorena, who took part in the Berkeley case, said Thursday's ruling 
won't affect Qwest, which has installed its link, but will allow 
Berkeley and other cities to take another look at their regulations.


-- 
Sean McLaughlin
Executive Director
Access Humboldt
P.O. Box 157, Eureka, CA 95502
tel: 707-476-1798
dir: 707-476-2873
fax: 707-476-1702
cel: 707-616-2381
e: sean at accesshumboldt.net
web:  accesshumboldt.net

"Local Voices Through Community Media"


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