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City Can't Bar Cell Towers on Looks Only, Court Says

La Canada Flintridge's ban is rejected. Service providers say the ruling will help boost coverage.

January 18, 2006|James S. Granelli | Times Staff Writer

Cellphone towers may be ugly, but that's not reason enough for cities to block their construction, a federal appeals court ruled Tuesday.

In the nation's first appellate ruling on an increasingly contentious local issue, the U.S. 9th Circuit Court of Appeals struck down parts of a La Canada Flintridge law that had allowed the city to withhold building permits on public rights of way for purely aesthetic reasons.

Similar ordinances in cities across California and the nation have slowed efforts by wireless companies to offer better coverage and advanced services they say their 200 million customers demand. Municipal officials counter that they have a responsibility to protect their residents from a proliferation of unsightly infrastructure.

Unlike telephone or cable lines, cellphone transmitters can't be buried underground and need to be high enough to relay signals without obstruction. And they're seemingly everywhere. By June, service providers had installed 178,025 cell sites nationwide -- adding more than 15,000 a year for the last four years.

"Would you want these things in your backyard?" said La Canada Flintridge's appellate lawyer, Scott J. Grossberg.

"The residents didn't want them. The city didn't want them. I wouldn't want them in my backyard."

La Canada Flintridge officials have not decided whether they will ask the Supreme Court to review the case, which echoes past efforts of municipalities to regulate other urban eyesores such as tall pole-mounted signs one wag dubbed "litter on a stick."

The wireless industry cheered the three-judge panel's unanimous decision, saying it should make it easier for service providers to expand their networks at a time when growth in the number of new cellphone subscribers is slowing. To win customers, cellular companies pitch better reception and new services, such as video and e-mail, which require more towers and antennas.

Cities nationwide have been rejecting tower permits based on aesthetics, prompting some providers to dress up their gear as giant trees or hide them in church steeples to pass visual muster.

The appearance of cellular transmitters varies widely. Some are little more than antennas on top of buildings. Others are massive free-standing poles topped with an array of gear.

Last fall, some residents in the village of Cayuga Heights, N.Y., near Ithaca, formally objected to plans by Verizon Wireless to build a tower, saying the views from their homes would be ruined. In the farmlands northeast of Minneapolis-St. Paul, neighbors of dairy farmer Jeff Vollrath are objecting to a deal he made with Sprint Nextel Corp. to erect a 199-foot tower, complaining about the "ugliness" and the threat to property values as urban sprawl creeps out to them. And in Delaware, residents in Glasgow are fighting a plan to build a 150-foot tower, disguised as a giant cross, at the Good Shepherd Baptist Church.

"Cities are very demonstrative in wanting sites hidden. And minimizing the aesthetic effects is a company goal as well," said John J. Flynn III, who represented Sprint against La Canada Flintridge before the appeals court.

"This has been an issue of great importance and intense feelings."

California, the nation's biggest telecommunications market, has been particularly problematic for wireless companies, said John Walls, a spokesman for the industry trade group Cellular Telecommunications and Internet Assn.

"We've had significant problems with getting towers along major highways in California," Walls said. "That resistance has been legally diminished by this decision."

The case began in 2001, when Sprint wanted to upgrade equipment installed on two existing power poles on busy residential streets. La Canada Flintridge officials approved Sprint permits at two other locations, but the city and the company couldn't find a compromise on the residential sites.

Cities and wireless providers watched the La Canada Flintridge case as a test of municipal power.

"Ultimately, cities and service providers knew the courts were going to have to intervene," Flynn said.

Sprint sued, arguing that state law gave it the right to install its equipment on public rights of way as long as it didn't affect public use of roads. The city countered that state law granted it the power to regulate the time, place and manner -- essentially the aesthetics -- of such improvements and that it had a right to ensure public safety.

U.S. District Judge David O. Carter said the city failed to make its case on public safety grounds, but he agreed that La Canada Flintridge was within its rights to deny Sprint's permits for aesthetic reasons.

The appellate court disagreed. The judges held that La Canada Flintridge's ordinance conflicted with sections of the California Utilities Code, which the court said gave companies "broad authority to construct telephone lines and other fixtures" along public rights of way.

Said La Canada Flintridge Mayor Anthony Portantino: "This is a pretty important decision on land use and local control. We thought this was a place for reasonable controls."

Many states have similar utilities laws. Although the decision applies only to California law, lawyers said other courts nationwide would give it weight when considering similar cases.

That, wireless advocates and foes agreed, would probably mean more towers.

Cingular Wireless, Verizon Wireless and Sprint are rushing to install high-speed gear in their networks. And T-Mobile USA, the fourth-largest provider, committed itself last year to an aggressive plan for building its system.

"This is a situation where it really is: When is enough enough?" Grossberg said. "Does everyone have the right to come in and upgrade just because there's new technology? When will all this stop?"

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