Agenda - Planning Commission - 09/07/2006

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Z.B. August 10, 2006 -:- Page 3 The Court found that the Corps' expansive interpretation of the phrase "navi- gable wa~ers" was not "based on a permissible construction" of the Act. The Act was not meant to impose federal jurisdiction over channels through which water flowed intermittently or that provided drainage for rainfall periodically. Further, the specific wording of the Act implied that it did.not refer to water in general, but "more narrowly to water 'as found in streams... oceans, rivers and lakes. ", The Court found that the Act conferred jurisdiction only over "relatively permanent bodies of water." The Court found that. a wetland could not be considered "adjacent" to a permanent body of water based merely on a hydrological connection, stating that "only those wetlands with a continuous surface connection to bodies that are 'waters of the United States' in their own right, so that there is no clear demarca- tion between the two, are 'adjacent' to such waters and covered by the Act" Because the 6th Circuit applied an incorrect standard to determine if the wetlands were covered "waters of the United States," the Court sent both cases back for further proceedings. .~ ( t,_ Telecommunications - Ordinance allows city to deny cell phone-tower permits based on aesthetics Company argues ordinance contradicts state code Citation: Sprint PCS Assets, LLC v. City of La Canada Flintridge, 9th U.S. Circuit Court of Appeals, No. 05-55014 (2006) The 9th U.S. Circuit has jurisdiction over Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. CALIFORNIA (05/23/06) - Sprint PCS Assets, LLC, applied for two permits to construct a cell phone tower in the city of La Canada Flintridge. The city, citing . a 2001 ordinance granting it the authority to deny permit applications for tele- communications towers solely on aesthetic grounds, denied both applications. Sprint sued the city, claiming that the ordinance violated the Telecommuni- cations Act of 1996 (Act) and the California Public Utilities Code. The utilities code stated in relevant part that telephone companies could "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 to not incommode the public use of the road or highway or interrupt the navigation of waters," The court noted that there was substantial evidence that - under the ordi- nance- the pennits were denied properly, and it found in the city's favor without a trial. Sprint appealed the decision to the 9th U.S. Circuit Court of Appeals. DECISION: Reversed. The California Constitution stated that a local law in conflict with general law would be preempted by state law. In this case, the state utilities code granted broad authority to telephone companies to install necessary fixtures, as long as they did not interfere with the public use of roads and waterways. ,,". ~. @2006 Quinlan Publishing Group. Any reproduction is prohibited. For more information please call (617) 542-0048. 91