Agenda - Planning Commission - 03/06/2014

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Zoning Bulletin January 25, 2014 ( Volume 8 I Issue 2 Citation: Omnipoint Communications, Inc. v. City of Huntington Beach, 2013 WL 6486240 (9th Cir. 2013) The Ninth Circuit has jurisdiction over Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. NINTH CIRCUIT (CALIFORNIA) (12/4/13)—This case addressed the issue of whether the federal Telecommunications Act of 1996 preempted a city initiative requiring voter approval before constructing mobile telephone antennae on city -owned park property. The Background/Facts: In July 2007, Omnipoint Communications, Inc. (doing business as "T-Mobile") submitted two applications to the Planning and Building Department of the City of Huntington Beach, California (the "City"). T-Mobile sought to construct wireless antennae in two City -owned parks. The Planning and Building Department ap- proved the wireless permits. T-Mobile also obtained related Site License Agreements with the City. After construction commenced, however, lo- cal residents protested their opposition. At a special meeting to address residents' concerns, it was deteiuiined that, because the construction costs for each wireless facility exceeded $100,000, a City initiative known as "Measure C" applied. Measure C required that before any structure costing more than $100,000 could be built on or in any City - owned park, an affirmative vote of at least a majority of the electors vot- ing on the proposed project at a general or special election must be obtained. Instead of seeking voter approval, T-Mobile filed a complaint in federal district court. Among other things, T-Mobile asserted that the federal Telecommunications Act of 1996 (Pub.L. No. 104-104, 110 Stat. 56) (the "TCA") preempted the City's decision to require compliance with Measure C. The district court agreed with T-Mobile. It held that because the voter approval process required by Measure C did not meet procedural require- ments of the TCA (i.e., process application within reasonable time and explain reason for denial supported by substantial evidence), then the City could not use Measure C as a reason to deny T-Mobile's applica- tions or to delay decision making. The City appealed. It argued that the TCA did not preempt its deci- sion to require compliance with Measure C. DECISION: Judgment of district court reversed, and matter remanded. The United States Court of Appeals, Ninth Circuit, agreed with the City. It held that the TCA did not preempt the City's decision to require compliance with Measure C. In so holding, the court explained that the TCA is intended to encour- age the development of telecommunications technologies, including wireless telephone services. The court further explained the preemptive © 2014 Thomson Reuters 3