Last week’s California appeals court decision affirming local authority to deny permits for wireless facilities, and other telecoms infrastructure, on aesthetic grounds also went a long way towards clarifying what criteria and considerations cities can use when managing use of the public right of way.
The California public utilities code has two sections with different standards for telecoms project review. The first section (7901), which has a hundred year history, says telephone companies may…
Construct…telephone lines along and upon any public road or highway…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.
The second section (7901.1), enacted about 20 years ago, adds…
Municipalities shall have the right to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed.
In their dispute with the City and County of San Francisco, T-Mobile and partners claimed that the first section meant that they had an unlimited right to plant equipment in the public right of way and the second section meant that the City only had authority to regulate how the construction was done.
The appeals court did not buy that argument. The three judges agreed that the second section only related to construction activities – for example, a city can set specific times for when roads may be blocked – but the first section is what defines the limits that local governments can place on the design and other characteristics of the facilities being built.
In other words, a city can make a judgement as to whether or not, say, a proposed cell site would “incommode the public use of the road”. At least up to a point – the court said that discretion is not limitless. But it can be invoked if a project would “unreasonably subject the public use to inconvenience or discomfort; to unreasonably trouble, annoy, molest, embarrass, inconvenience; to unreasonably hinder, impede, or obstruct the public use”.
This appeals court almost certainly won’t have the last say. The case could go to the California supreme court, or eventually land in a federal court. And, as the appeals court judges themselves said, “of course, if the Legislature disagrees with our conclusions, or wishes to grant the wireless industry further relief from local regulation, it remains free to amend sections 7901 and 7901.1”.