According to California’s First Appellate District Court, “local government maintains the right to exercise reasonable control as to the time, place, and manner” regarding tower and small cell deployment. The ruling handed down last week is in response to the suit brought by various companies, T-Mobile, Crown Castle and ExteNet, who argued a local municipality could not prohibit tower or small cell construction based on aesthetic reasons.
A case in San Francisco brought by T-Mobile in 2011 was the impetus for the suit requiring towercos and carriers to get a permit before the construction or modification of any facility in the public right-of-way. An ordinance read: “The City does not intend to regulate the technologies used to provide personal wireless services. However, the City needs to regulate placement of such facilities in order to prevent telecommunications providers from installing wireless antennas and associated equipment in the City’s public rights-of-way either in manners or in locations that will diminish the City’s beauty.” (editorial emphasis added).
The San Francisco ordinance cited in the ruling said: “The City’s beauty is vital to the City’s tourist industry and is an important reason for businesses to locate in the City and for residents to live here. Beautiful views enhance property values and increase the City’s tax base. The City’s economy, as well as the health and well-being of all who visit, work or live in the City, depends in part on maintaining the City’s beauty.”
T-Mobile countered that the ruling conflicted with a state law that allowed developers to build on public property “in such manner and at such points as not to incommode the public use.”
The case is indicative of the growing tensions, many cited in Inside Towers, about access to public right-of-ways, the growing demand for small-cell deployment and local control over zoning issues.