Opinion
A145430
11-09-2017
EXTENET SYSTEMS (CALIFORNIA), LLC, Plaintiff and Appellant, v. CITY OF BURLINGAME, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. CIV508756)
ExteNet Systems (California), LLC (ExteNet) appeals from the denial of its petition for a writ of administrative mandate, the denial of its motion for summary adjudication, and the grant of the City of Burlingame's (City) motion for summary adjudication. It raises a potpourri of issues, contending the City's decision to deny six of its eight requested encroachment permits for the siting of certain wireless carrier facilities (WCFs) (1) was not based on substantial evidence; (2) was an abuse of discretion; (3) violated articles XI and XII of the California Constitution, Government Code section 815.6, and 47 United States Code section 253; (4) was preempted by Public Utilities Code sections 701, 1001, 1002, 7901, and 7901.1; (5) was in excess of any authority granted to the City under section 2902; and (6) violated the federal constitutional guarantees of due process and equal protection. The crux of ExteNet's appeal is that the City erred in all of these ways by denying its requested permits based on aesthetic considerations. We disagree with its various contentions, and affirm.
All statutory citations are to the Public Utilities Code unless otherwise specifically designated.
I. BACKGROUND
A. The Parties
ExteNet is a telephone corporation authorized to construct distributed antenna system (DAS) networks as a full facilities-based competitive local exchange carrier, pursuant to a certificate of public convenience and necessity granted by the California Public Utilities Commission (Commission). It provides infrastructure in the form of DAS networks to wireless service providers, like T-Mobile. A DAS network is composed of nodes, also known as wireless communication facilities (WCFs). Each node in the network is connected to all of the other nodes via fiber optic cable. The fiber optic cable runs back to an off-site location where a wireless service provider's equipment can connect it to the provider's overall network.
According to ExteNet's somewhat more technically detailed description, "[t]he sole purpose of a DAS network is to combine antennas and optical fiber in order to transport wireless voice and data communication signals. . . . [¶] . . . [¶] A single DAS network generally consists of one hub and multiple nodes. . . . [¶] The hub is a central equipment room . . . [¶] . . . linked to the nodes by fiber optic cable lines. The nodes are typically comprised of small, low-power antennas[.] . . . [¶] Each node is typically located on existing or replacement utility poles or light standards. . . . [¶] The nodes are more or less evenly spaced at multiple points along the public rights-of-way."
At issue in this appeal is the City's denial of six of a total of eight DAS site permits sought by ExteNet in 2010. Before those denials, two wireless providers had successfully obtained encroachment permits from the City, one by AT&T in 2007 and one by T-Mobile in 2009. The City did not have regulations in place that covered encroachments by telecommunications providers. When the permit process for T-Mobile in 2009 resulted in community complaints, especially about aesthetics and lack of community outreach and notification, the City adopted guidelines for "Permit, Location, Design and Public Notification Requirements Associated with Telecommunications Provider's Placement of Facilities On Utility Poles Located Within the City's Right-of-Way" (ROW Regulations), thereby setting forth a permitting process to engage the community more effectively than it was able to do prior to adoption of the ROW Regulations. Among other things, the ROW Regulations, which governed the ExteNet permit approval process in 2010, provided that any person could appeal to the City council a staff level decision (e.g., by the City engineer) to grant a permit for the installation of WCFs. Further, the ROW Regulations specifically allowed the City to consider aesthetics when deciding WCF site permit applications.
In the context of this case, a siting permit is the same as an encroachment permit because to be able to "site" the node at a particular location, ExteNet must, of course, simultaneously have permission from the City to "encroach" upon its public right-of-way.
B. Procedural History of the Underlying Administrative Decision
On September 28, 2010, ExteNet applied for WCF site permits allowing placement of DAS network antennas on eight utility poles in the City's residential neighborhoods. Invoking its recently adopted ROW Regulations, the City sought public comment on ExteNet's applications. Almost all of the public comments were critical of the applications, and many raised aesthetic concerns. Attempting to respond to these criticisms, ExteNet worked with the City to modify its plans over the next few months, and it eventually obtained tentative approval from the City engineer in February 2012 for all eight nodes. Disappointed with the engineer's decision, in March two residents appealed it to their City council. The hearing on the appeal took place on April 16, 2012, where, during the appellant residents' presentation and the public comment portion of the hearing, the City council gathered input from residents, including more aesthetic criticisms. For instance, one resident referred to a node that would be placed near her home as a "piece of junk." Based on the continuing reservations expressed by community members about the aesthetics of ExteNet's proposed WCF sites, the City council unanimously disagreed with the engineer's decision in part, overturning six of the eight node site permits.
During this process, ExteNet also heard from and corresponded with many residents, in an attempt to allay their concerns. On July 26, 2011, ExteNet's director of municipal relations relayed her understanding to one resident: "yes, [the City] has the right and obligation to review carefully and make decisions based on aesthetic impacts."
C. The Litigation
Given the need for more than two nodes, the denial of six of eight site permits effectively blocked ExteNet from implementing an operable DAS network in the City. Although the council members expressed a desire to engage further with ExteNet to find a workable solution, ExteNet chose instead to bring suit, seeking declaratory and injunctive relief, an administrative writ of mandate, and damages for negligence per se and interference with contractual relations. On cross-motions for summary adjudication, the court issued an order adverse to ExteNet on all claims and entered judgment in favor of the City on April 14, 2015. ExteNet filed a timely notice of appeal.
II. DISCUSSION
Grouped procedurally, ExteNet raises three groups of issues on appeal: (1) whether the trial court erred in denying a writ of administrative mandate, (2) whether the court erred in denying its motion for summary adjudication, and (3) whether the court erred in granting the City's motion for summary adjudication. We address its contentions below.
A. Writ of Administrative Mandate
ExteNet fails to articulate precisely its basis for attacking the trial court's denial of its petition for a writ of administrative mandate, although it does present some arguments related to Code of Civil Procedure section 1094.5, subdivision (a), the statutory provision governing administrative writs. We conclude the trial court properly denied ExteNet's petition for a writ of administrative mandate.
Although, as the City points out, ExteNet did not properly file a petition for a writ of administrative mandate, for purposes of our analysis we may (and here, do) construe the operative pleadings, its third amended complaint and its motion for adjudication on all issues therein, together, to be a petition for a writ of administrative mandate. (Cf. Owens v. Superior Court (1959) 52 Cal.2d 822, 827 ["If the facts justify such relief it is immaterial that defendant has prayed for the wrong remedy, and we treat his petition as one for a writ of mandate."].)
1. Standard of Review
In administrative mandate proceedings, except where fundamental vested rights are concerned, the trial court reviews the agency's decisions on issues of law de novo and reviews the agency's factual determinations for substantial evidence in support of those findings in the administrative record. (Code Civ. Proc., § 1094.5, subds. (b) and (c); Schafer v. City of Los Angeles (2015) 237 Cal.App.4th 1250, 1260-1261.) ExteNet has not suggested that fundamental vested rights are involved here. "An appellate court in a case not involving a fundamental vested right reviews the agency's decision, rather than the trial court's decision, applying the same standard of review applicable in the trial court." (Id. at p. 1261.) Thus, the appellate court performs the same function as the trial court. (Id. at pp. 1260-1261; accord, Department of Health Care Services v. Office of Administrative Hearings (2016) 6 Cal.App.5th 120, 140.) For purposes of our review, evidence is "substantial" if it is " ' " ' "reasonable in nature, credible, and of solid value." ' " ' " (Schafer, at p. 1260.) One witness's testimony may suffice. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614 (Mix); Doe v. Regents of University of California (2016) 5 Cal.App.5th 1055, 1074 (Doe).) We are authorized to overturn the City's decision only if no reasonable person could have reached the same conclusion. (Doe, at p. 1073; accord, Kutzke v. City of San Diego (2017) 11 Cal.App.5th 1034, 1040.) "The trier of fact's determination [of a witness's credibility] will be interfered with on appeal only when it appears that the witness'[s] testimony is inherently so improbable as to be unworthy of belief." (Wilson v. State Personnel Bd. (1976) 58 Cal.App.3d 865, 877 (Wilson), italics added.) That requires deference to the City's assessment of credibility, for the trial court "does not act as a trier of fact" in administrative mandate. (Schafer, at p. 1260.)
We begin with a " 'presumption that the record contains evidence to sustain the [City's] findings of fact. [Citation.] . . . [Citation.] The burden is on [ExteNet] to prove the [City's] decision is neither reasonable nor lawful.' " (Los Altos El Granada Investors v. City of Capitola (2006) 139 Cal.App.4th 629, 648 (Capitola); Donley v. Davi (2009) 180 Cal.App.4th 447, 455-456.) ExteNet has not met this burden. "Because we are reviewing a denial of a requested [siting] permit, it is not necessary to determine that each finding by the [City] was supported by substantial evidence. As long as the [City] made a finding that any one of the necessary elements enumerated in the ordinances was lacking [(e.g., lacking appropriate amount of consideration for aesthetic concerns)], and this finding was itself supported by substantial evidence, the [City's] denial of [ExteNet's] application must be upheld." (Desmond v. County of Contra Costa (1993) 21 Cal.App.4th 330, 336-337 (Desmond).)
2. The Trial Court Properly Denied the Writ of Mandate
ExteNet argues the City council abused its discretion by "reversing" the City engineer's tentative decision to grant ExteNet the permits it requested. Specifically, ExteNet contends the City failed to follow its own municipal code and regulations, and requests that this court (as it did with the trial court) require the City to follow what ExteNet contends is the proper interpretation of those provisions. In our view, ExteNet misreads the Burlingame Municipal Code (BMC) and the ROW Regulations, and simply seeks to have us read the record differently than the City did, ignoring the deference the City is due under the substantial evidence standard.
In general, we construe municipal codes and local regulations according to our independent judgment. (Citizens for Responsible Equitable Environmental Development v. City of San Diego (2010) 184 Cal.App.4th 1032, 1040-1041 (Citizens).) But we give some degree of deference to a city's interpretation of its own municipal code; exactly how much deference we give is " 'fundamentally situational' " and depends on the individual facts—a case-by-case test set out by the Supreme Court in Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 6-15. (Citizens, at p. 1041.) We afford greater deference if the City " ' "has expertise and technical knowledge, especially where the legal text to be interpreted is technical, obscure, complex, open-ended, or entwined with issues of fact, policy, and discretion[,]" ' " "where there are 'indications of careful consideration by senior agency officials[,]' " and where there is " 'evidence that the agency "has consistently maintained the interpretation in question, especially if [it] is long-standing[.]" ' " (Citizens, at pp. 1041-1042.)
Here, the municipal code provisions and regulations are not " ' "technical, [etc.]" ' " nor have they been " ' "consistently maintained . . . [or] long-standing." ' " (Citizens, supra, 184 Cal.App.4th at pp. 1041-1042.) Nonetheless, they are " ' "entwined with issues of fact, policy, and discretion," ' " and they, in our view, were adopted after " 'careful consideration by [City] officials.' " (Id. at p. 1041.) Thus, while exercising our own independent judgment, we give the City's interpretation of its own codes and regulations substantial deference. (Ibid.)
a. The City Followed Its Municipal Code
Three provisions of the BMC are implicated here. First, BMC section 12.10.040, subdivision (f) provides that "[a]ny encroachment permit issued under this chapter [i.e., by the City engineer] shall be revocable by the [C]ity upon written notice." (Italics added.) Second, BMC section 12.10.050 provides that "[a]ny decision of the [C]ity engineer concerning an encroachment permit may be appealed by the applicant to the [C]ity council. Such appeal shall be made in writing within five (5) days after written notice of the decision of the [C]ity engineer is sent to the applicant. Additionally, all decisions of the [C]ity engineer shall be reported to [C]ity council and shall not be final until the conclusion of the [C]ity council meeting at which such report is received." (Italics added.) And third, BMC section 12.10.060 provides that, "[i]n the event that an appeal is taken, the matter shall be referred to the [C]ity council for [a] hearing. At the conclusion of the hearing the [C]ity council shall make its order approving, modifying or reversing the action of the [C]ity engineer. The decision of the [C]ity council shall be final and conclusive." (Italics added.)
ExteNet reads BMC sections 12.10.050 and 12.10.060 to mean only the applicant can appeal the City engineer's decision. And since it was in fact two residents, not ExteNet, who appealed the engineer's decision, ExteNet argues the City violated its own laws by allowing the appeal to proceed at all. We are not persuaded. BMC section 12.10.050 gives a right of appeal to a disappointed applicant, but there is no reason to conclude that the ability to seek review is exclusive to applicants. Section 12.10.060 does not (explicitly or implicitly) state that "an appeal" means only "an appeal under BMC section 12.10.050." And although the BMC does not specifically grant anyone but the applicant a right to appeal the engineer's decision, the ROW Regulations in fact do. (ROW Regs., § E ["[A]ny person may appeal the approval or denial of the permit."].) To the extent there is any contradiction between the BMC and the regulations, "[t]he City Attorney reconciled the provisions by interpreting the BMC to allow an appeal by any party to the City Council," a construction which we believe deserves deference. (See Citizens, supra, 184 Cal.App.4th at pp. 1041-1042.) Moreover, ExteNet's reading downplays BMC section 12.10.040, subdivision (f), which unequivocally states that, even if the encroachment permit is (provisionally) granted (by the City engineer or council), it is at all times "revocable . . . upon written notice." ExteNet received adequate notice here.
As the City argues, we also note that the City engineer's approval of ExteNet's application was a tentative decision. Thus, in one sense, given the provisional nature of the engineer's decision, it is illogical to think of the council's decision here as a "reversal" of the engineer's decision, or even a "revocation" of ExteNet's then-approved permits, because, procedurally, the council was simply making a decision in the first instance, not undertaking review of a prior decision.
b. The City Followed Its ROW Regulations
Among the grounds the City relied upon in denying ExteNet's permits was aesthetics. Without expressly mounting an attack on the use of aesthetics as a proper ground for decision, ExteNet argues that the City failed to follow its own ROW Regulations, and specifically, that the City denied its application on various unauthorized grounds, citing a laundry list of bases for the City's decision. Because this line of argument boils down to a contention that the City council's decision was not supported by substantial evidence, we will affirm if the record supports any one ground for the City's denial. (Desmond, supra, 21 Cal.App.4th at pp. 336-337.) Even if the City improperly relied on other grounds in its decision (an issue we need not, and do not, reach), we conclude that the record supports reliance on aesthetics alone as a proper basis for its decision. Any error in its reliance on other grounds was harmless. (See Sun State Towers LLC v. Cty. of Coconino (D. Ariz., Oct. 25, 2017, No. CV-17-08075-PCT-GMS) 2017 U.S. Dist. LEXIS 176541, pp. *8-9.)
ExteNet argues the City improperly considered and "require[d] (1) proof of a significant gap in service as a necessary precondition to approval, (2) a demonstration of the applicant's status as a common carrier, (3) consideration of locations outside the public right-of-way including public utility easements, (4) evidence of finalized customer contracts [and] (5) use of alternative technologies to neutral host DAS."
c. There Is Substantial Evidence to Support the City's Decision
The City received a large number of public comments expressing aesthetic objections to the proposed DAS network nodes. These objections are sufficient to provide substantial record evidence for the City's denials. (Cf. Mix, supra, 14 Cal.3d at p. 614; Doe, supra, 5 Cal.App.5th at p. 1074.) ExteNet invites us to give this chorus of objections no weight, by applying what it characterizes as a standard of "reasonableness," a test for which it supplies no authority. ExteNet rather floridly insists that the objections raised here reflect "an irrational public fear hidden under an overstated concern for aesthetics having an undue influence on local politicians who misused their own process in order to ensure that the network would not be constructed." That characterization points up why it would be ill-advised for us to announce some new test of "reasonableness" whenever aesthetic concerns are in play in administrative decision-making. The notion is at odds with the deference built in to our usual standards of judicial review in this setting. Since the testimony of a single witness, if believed by the trier of fact, can be substantial evidence (see Mix, at p. 614; Doe, at p. 1074), and since none of the public input relied upon by the City seems to us "inherently so improbable as to be unworthy of belief" (see Wilson, supra, 58 Cal.App.3d at p. 877), we must conclude that the record here supports the City's permit denials.
Were we to accept ExteNet's proposed standard of evaluating aesthetic concerns according to our own sense of "reasonableness," we wonder what evidence would suffice to support the City's permit denials? Since the time of Aristotle, philosophers have understood aesthetics to be largely subjective in nature. (See, e.g., Beauty (Oct. 5, 2016) Stanford Encyclopedia of Philosophy <https://plato.stanford.edu/entries/beauty/> [as of November 9, 2017].) ExteNet suggests that an approach focused solely on subjective standards, if "[t]aken to its extreme . . . would allow [, e.g.,] Beverly Hills to require all telephone poles to be covered in gold and encrusted with diamonds." Maybe so, but that is not what occurred here. At the back of ExteNet's argument for a "reasonableness" standard, implicitly, is the suggestion that the City engaged in arbitrary and standardless decisionmaking. We do not see it.
The City set forth in its ROW Regulations various design factors it would consider in making its decision about aesthetics, including "placement, screening, and camouflage," as well as compatibility with existing "architectural elements." (ROW Regs., § A, subd. (2)(b).) The ROW Regulations also express a preference for the "smallest and least visible antennas" feasible in light of technical requirements. (Ibid.; see also id., § A, subd. (2)(c) [colors must "match or blend with the primary background"]; id, § A, subd. (2)(e) ["equipment shall be camouflaged"]; id, § A, subd. (2)(g) ["Where appropriate, facilities shall be installed so as to maintain and enhance existing landscaping on the site . . . ."]; see also id, § A, subd. (2)(k) ["The [C]ity shall retain the authority to limit the number of antennas and/or related equipment to be located at any site and adjacent sites in order to prevent negative visual impact associated with multiple facilities."].) The City's inclusion of such objective criteria, we believe, provided a safeguard against wholly subjective and arbitrary decisionmaking, and shaped the City's specific decision in this case. So long as a municipality announces in advance that aesthetic criteria will be taken into account in regulatory decisionmaking, as the City did here, and so long as its decision passes muster under the applicable standard of judicial review and adheres to the state and federal constitutions, as the decision under review does, our task in scrutinizing what it has decided is at an end.
B. Summary Adjudication
We next address the trial court's summary adjudication rulings. In granting summary adjudication to the City and denying it to ExteNet, we conclude the trial court ruled correctly.
1. Standard of Review
Unlike summary judgment, which disposes of the entire complaint, "[s]ummary adjudication motions are restricted to an entire cause of action, an affirmative defense, a claim for punitive damages, or an issue of duty." (Travelers Indemnity Co. v. Maryland Casualty Co. (1996) 41 Cal.App.4th 1538, 1542.) Still, "[m]otions for summary adjudication are procedurally identical to motions for summary judgment." (Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281, 1290.) "A trial court properly grants summary [adjudication] where no triable issue of material fact exists and the moving party is entitled to [adjudication] as a matter of law." (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476; see also Code Civ. Proc., § 437c, subd. (f).) We review the trial court's decisions on both parties' motions for summary adjudication de novo, "considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports." (Merrill, at p. 476.)
"In performing our de novo review, we must view the evidence in a light favorable to [ExteNet] as the losing party [citation], liberally construing [its] evidentiary submission while strictly scrutinizing [the City's] own showing, and resolving any evidentiary doubts or ambiguities in [ExteNet's] favor." (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769; accord, Y.K.A. Industries, Inc. v. Redevelopment Agency of City of San Jose (2009) 174 Cal.App.4th 339, 352-353.) "If summary [adjudication] was proper on grounds other than those articulated by the trial court, the appellate court must nevertheless affirm." (Barton v. Elexsys Internat., Inc. (1998) 62 Cal.App.4th 1182, 1187-1188, italics added (Barton).)
"Although our review of a summary [adjudication] is de novo, it is limited to issues which have been adequately raised and supported in [ExteNet's] brief[s]. [Citations.] Issues not raised in an appellant's brief are deemed waived or abandoned." (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.) "Since [ExteNet] ha[s] not addressed the court's summary adjudication of [its] causes of action" related to negligence per se and intentional interference with contractual relations, as the City points out, "we do not address the merits of those causes of action." (Ibid.; accord, Tisher v. California Horse Racing Bd. (1991) 231 Cal.App.3d 349, 361.) We review questions of statutory interpretation and preemption de novo, following traditional principles of statutory interpretation (Coyne v. City and County of San Francisco (2017) 9 Cal.App.5th 1215, 1224 [preemption]; Hardesty v. Sacramento Metropolitan Air Quality Management Dist. (2011) 202 Cal.App.4th 404, 420 [statutory construction]), which require us "to ascertain the intent of the Legislature so as to effectuate the purpose of the law" (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387).
2. The Trial Court Properly Ruled on Both Parties' Motions for Summary Adjudication
ExteNet raises a number of issues challenging the trial court's rulings on both parties' motions for summary adjudication. We disagree with all of its arguments, as explained below.
a. No Violation of the California Constitution, Articles XI and XII
In its opening brief, ExteNet states a general contention: "the City did not act within its legitimate authority under the California Constitution." But the two sections to which it points in support of this proposition do not help ExteNet (see Cal. Const., art. XII, §§ 5 & 8); nor do other provisions ExteNet conveniently disregards, minimizes, or ignores (see Cal. Const., Art. XI, §§ 5, 7 & 9). ExteNet's argument is essentially that the City encroached upon the Commission's purportedly exclusive authority under article XII to grant WCF siting permits.
ExteNet's arguments related to the California Constitution at times conflate with its arguments related to sections 2902, 7901, and 7901.1, which we discuss in sections II.B.2.b and II.B.2.c, post, of this opinion. To the extent differences are discernable, we distinguish these respective lines of argument in our discussion as is necessary.
Article XII, section 5 of the California Constitution provides that "[t]he Legislature has plenary power, unlimited by the other provisions of this constitution but consistent with this article, to confer additional authority and jurisdiction upon the [C]ommission, to establish the manner and scope of review of [C]ommission action in a court of record, and to enable it to fix just compensation for utility property taken by eminent domain." Section 8 further provides, in relevant part, that "[a] city, county, or other public body may not regulate matters over which the Legislature grants regulatory power to the Commission."
Far from demonstrating how the City has encroached upon power the Legislature has conferred upon the Commission, ExteNet has shown only that the Commission has given its approval of the DAS networks, and has exempted the equipment from review under the California Environmental Quality Act. But this does not mean the Legislature has given the Commission exclusive authority over these permits. And ExteNet points to no authority stating that once the Commission makes a decision on the considerations over which it has authority, a municipality like the City is thereby stripped of all power related to the permit application. Indeed, as we discuss below, the Legislature has time and again provided municipalities with the right to control some aspects of the application process. (See, e.g., §§ 2902, 7901 & 7901.1.) Such a balance between the powers the Legislature has granted the Commission and those left to the municipalities is understandable given the seemingly competing nature between article XII, sections 5 and 8, and Article XI, sections 5, subdivision (a) (cities can exercise all powers within their charters, limited by state laws), 7 (cities may exercise general police powers), and 9 (cities can regulate public works) of the California Constitution—as well as between different statutory provisions of the Public Utilities Code. (See City of Huntington Beach v. Public Utilities Com. (2013) 214 Cal.App.4th 566, 590-591 (Huntington Beach).) We next turn to consider whether these statutory provisions are at odds with the constitutional provisions noted by ExteNet.
b. No Preemption by Sections 7901 and 7901.1
ExteNet contends the City's decision to deny its permit application was pre-empted by sections 7901 and 7901.1. Section 7901 allows "[t]elegraph or telephone corporations [to] construct lines . . . along and upon any public road or highway . . . and [to] erect poles . . . for supporting the . . . 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." ExteNet argues section 7901 does not allow the City to consider aesthetic impacts because "incommode," as used in the statute, means only blocking the ability to travel. Further, ExteNet argues the City did not act reasonably because it failed to treat ExteNet "in an equivalent manner," compared to AT&T (in 2007) and T-Mobile (in 2009), under section 7901.1, subdivision (b). These arguments were rejected in T-Mobile West LLC v. City and County of San Francisco (2016) 3 Cal.App.5th 334, review granted Dec. 21, 2016, S238001 (T-Mobile), which we find persuasive, and, as explained below, will follow.
Section 7901.1, subdivisions (a) and (b) provide in full: "(a) It is the intent of the Legislature, consistent with Section 7901, that municipalities shall have the right to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed. [¶] (b) The control, to be reasonable, shall, at a minimum, be applied to all entities in an equivalent manner."
In T-Mobile, the city of San Francisco, in an effort to maintain its property values and the beauty of its scenic vistas, enacted an ordinance requiring anyone seeking to construct telecommunications equipment (e.g., wireless facilities) in the public right-of-way to obtain a site-specific permit. (T-Mobile, supra, 3 Cal.App.5th at pp. 339-341, rev. granted.) The ordinance specifically "authorize[d] consideration of aesthetics" in making permitting decisions. (Id. at p. 339.) A few months later, the plaintiffs, who included ExteNet, sued San Francisco for declaratory and injunctive relief, arguing, among other things, the ordinance on its face violates and is preempted by sections 7901 and 7901.1. (Id. at p. 342.) After losing at the trial court, the plaintiffs appealed. (Id. at p. 344.)
Our colleagues in Division Five determined that the ordinance, on its face, does not conflict with and is not preempted by sections 7901 and 7901.1. (T-Mobile, supra, 3 Cal.App.5th at p. 344, rev. granted.) The court's opinion was in two parts: (1) sections 7901 and 7901.1 do not impliedly preempt the municipal ordinance (id. at pp. 346-356), and (2) the ordinance does not directly conflict with (and thus is not preempted by) section 7901.1, subdivision (b) (id. at pp. 356-358). In part one of its opinion, the court agreed with the City: the "plain meaning of the term 'incommode' is broad enough 'to be inclusive of concerns related to [aesthetics].' " (Id. at p. 344.) In so holding, the court rejected the "[p]laintiffs' position . . . that 'incommode' means only physical obstruction of travel in the public right-of-way." (Id. at p. 351; see also id. at p. 355.) After reviewing pertinent provisions and histories of the California Constitution (discussed in section II.B.2.a, ante) and relevant statutes, the court concluded that "[t]elegraph and telephone corporations have long been granted the right (franchise) to construct their lines along and upon public roads and highways throughout the state . . . subject to regulation to ensure such lines do not 'incommode' the public's use of those roads and highways." (Id. at p. 347, citations omitted.)
T-Mobile's primary authority for this argument in T-Mobile, and ExteNet's here as well, consists of two cases, one of which relies on the other for authority. (See Pacific Telephone & Telegraph Co. v. City & County of San Francisco (1961) 197 Cal.App.2d 133, 146, quoting Western Union Tel. Co. v. City of Visalia (1906) 149 Cal. 744, 750,751.) Notably, though, the latter case, Visalia, was decided almost fifty years prior to the enactment of section 7901 in 1951. (See Stats. 1951, ch. 764, vol. 1, p. 2194.)
In part two of its opinion, the court found the ordinance did not implicate section 7901.1, subdivision (b) because the City's ordinance "is not a regulation of '. . . construction—but is instead a regulation that permits Wireless Facilities to be installed in the public right-of-way subject to certain siting criteria.' " (T-Mobile, supra, 3 Cal.App.5th at p. 357, original italics; see also id. at pp. 344, 353.) The court construed the term "accessed" in subdivision (a) to be "concerned solely with 'temporary access' for construction purposes," based on its review of the section's legislative history, which included committee analyses and reports attached to the enacting statutes, as well as debates on the Legislature floor. (Id. at p. 358, citing Sprint PCS Assets v. City of Palos Verdes Estates (2009) 583 F.3d. 716, 725 (Palos Verdes Estates).) Based on its construction of subdivisions (a) and (b), the court concluded section 7901.1 "does not apply to the [o]rdinance." (T-Mobile, at p. 344, rev. granted.)
We see no reason to disagree with the panel's thorough treatment of this issue in T-Mobile: "incommode" under section 7901 encompasses far more than physical blockages to travel, and includes aesthetic concerns; and section 7901.1, subdivision (b) does not implicate the City's decision here because ExteNet does not argue it was treated differently for purposes of temporary construction. (See T-Mobile, supra, 3 Cal.App.5th at pp. 344-358, rev. granted.) This case, to be sure, differs procedurally from T-Mobile since ExteNet appeals from the denial of a group of site permits in a specific factual setting and thus its preemption challenge comes before us as applied, while the T-Mobile court addressed a facial preemption challenge. But that makes no difference to the result here, since, as we note above, the record supports the City's decision to deny ExteNet's site permits.
c. Section 2902 Applies
ExteNet deems section 2902 to be "deadwood," contending it applies only to certain types of municipal elections. We do not read the section so narrowly, given its broad language and the construction given it by the courts.
Section 2902 provides, in relevant part, that Chapter 1 of Part 3 of Division 1 of the Public Utilities Code "shall not be construed to authorize any municipal corporation to surrender to the [C]ommission its powers of control to supervise and regulate the relationship between a public utility and the general public in matters affecting the health, convenience, and safety of the general public, including matters such as the use and repair of public streets by any public utility [and] the location of the poles, wires, mains, or conduits of any public utility, on, under, or above any public streets . . . ." Taking sections 2902, 7901, and 7901.1 together, "the Public Utilities Code," as we read it, "specifically contemplates potential conflicts between the rights of telephone corporations to install telephone lines in the public right-of-way and the rights of cities to regulate local matters such as the location of poles and wires." (Huntington Beach, supra, 214 Cal.App.4th at p. 591.) Hence, "[i]nstead of preempting local regulation," as ExteNet argues, "the statutory scheme (§§ 2902, 7901, 7901.1) and the above authority [including Huntington Beach] suggest the Legislature intended the state franchise would coexist alongside local regulation." (T-Mobile, supra, 3 Cal.App.5th at p. 349, rev. granted.) Thus, we conclude section 2902 indeed applies to this case and supports the finding that the City retains its general police powers (see § 2902).
d. No Violation of Government Code Section 815.6
ExteNet argues the City was not entitled to summary adjudication under Government Code section 815.6, on the theory that the City violated some "mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury." We disagree.
"[Government Code] [s]ection 815.6 has three discrete requirements which must be met before governmental liability may be imposed under [that provision]: (1) an enactment must impose a mandatory duty; (2) the enactment must be meant to protect against the kind of risk of injury suffered by the party asserting section 815.6 as a basis for liability; and (3) breach of the mandatory duty must be a proximate cause of the injury suffered." (San Mateo Union High School Dist. v. County of San Mateo (2013) 213 Cal.App.4th 418, 428-429 (San Mateo).) Failing to prove any one of these three requirements would defeat ExteNet's claim the City failed to carry out some supposed mandatory duty. (See ibid.) " ' "Whether an enactment creates a mandatory duty is a question of law: 'Whether a particular statute is intended to impose a mandatory duty, rather than a mere obligation to perform a discretionary function, is a question of statutory interpretation for the courts.' " ' " (Id. at pp. 428-429.) We construe this requirement " 'strictly, [and will] find[ ] a mandatory duty only if the enactment "affirmatively imposes the duty and provides implementing guidelines." ' " (Id. at p. 429.)
ExteNet fails to demonstrate what mandatory duty the City had, which is the first requirement for imposing liability on the City under Government Code section 815.6; and anyway, ExteNet does not point to "an enactment that is designed to protect against the risk of a particular kind of injury," which is the second requirement. To the extent ExteNet contends (1) its alleged deprivation of property rights or interests as "a particular kind of injury," and (2) the "enactment" imposing such mandatory duty derived from either one or more of the constitutional or statutory provisions cited throughout its briefs (i.e., Cal. Const., arts. XI & XII; Public Util. Code, §§ 701, 1001, 1002, 2902, 7901 & 7901.1; BMC §§ 12.10.040-12.10.060), we believe our discussion above concerning each of these provisions suffices to resolve the issues it raises here. Thus, ExteNet has not demonstrated how the "particular kind of injury" requirement is satisfied, and has not identified a "mandatory duty" on the part of the City, "which is ultimately dispositive" against imposing liability on the part of a City under Government Code section 815.6. (San Mateo, supra, 213 Cal.App.4th at p. 428.)
Furthermore, ExteNet seems to argue that 47 United States Code section 253, discussed in section II.B.2.e, post, creates "a mandatory duty to avoid prohibition of the provision of any telecommunication service." Even if federal law did impose on the City some mandatory duty, the City did not violate any such duty, as we explain below.
e. No Violation of 47 United States Code Section 253
ExteNet argues the City's denial of six of its eight site permits had the actual effect of prohibiting its ability to provide telecommunications services, in violation of 47 United States Code section 253 (section 253). Although we see no basis to question ExteNet's assertion that the realities of engineering a successful DAS network make it impossible to operate such a network with just two nodes, we cannot agree that the City's decision violated federal law in denying its site permits.
To begin with, ExteNet's analysis largely disregards the foundational authority preserved by 47 United States Code section 332(c)(7)(A): "Except as provided in this paragraph, nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities." 47 United States Code section 332(c)(7)(B) specifies certain exceptions, including that local governments "shall not unreasonably discriminate among providers of functionally equivalent services," and "shall not prohibit or have the effect of prohibiting the provision of personal wireless services." (47 U.S.C. § 332(c)(7)(B)(I) & (II).) By expressly providing for the power of local governments, federal law is consistent with state law in reserving to local authorities questions relating to placement and appearance of telecommunications systems. It is important to recognize this as the starting point of analysis, for ExteNet's argument turns on certain exceptions to recognized local power over "placement, construction, and modification of personal wireless service facilities." (47 U.S.C. § 332(c)(7)(A).)
Two provisions of section 253 are most specifically pertinent. First, section 253(a), similarly to 47 U.S.C. section 332(c)(7)(B)(II), provides that "[n]o State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service." Second, section 253(c) provides that "[n]othing in this section affects the authority of a State or local government to manage the public rights-of-way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis, if the compensation required is publicly disclosed by such government." "Thus, section 253(a) states the general rule and section 253(c) provides the exception—a safe harbor functioning as an affirmative defense—to that rule." (Level 3 v. City of St. Louis, Mo. (8th Cir. 2007) 477 F.3d 528, 532 (Level 3).)
Under the Level 3 analysis, we begin with section 253(a). The Ninth Circuit has held that " 'a plaintiff suing a municipality under section 253(a) must show actual or effective prohibition, rather than the mere possibility of prohibition.' " (Palos Verdes Estates, supra, 583 F.3d at p. 728, original italics, quoting Sprint Telephony PCS, L.P. v. County of San Diego (9th Cir. 2008) 543 F.3d 571, 578 (en banc).) Assuming it is true ExteNet cannot construct its DAS network with just two nodes, ExteNet has not persuaded us the City's decision was an outright prohibition, instead of "the mere possibility of prohibition." (See Palos Verdes Estates, at p. 728.) After all, the City council members expressly asked ExteNet to reapply, showing their desire to continue working with the company to find a more agreeable solution. Or, as the trial court put it, ExteNet was "given the opportunity to [reapply], but chose not to" do so, and instead chose to initiate this lawsuit. Hence, the City did not violate section 253(a).
Then, even if the City's denial did meet the standard of "effect[ively]" prohibiting ExteNet from pursuing its telecommunications services, in violation of section 253(a), we look next to the "safe harbor" provision in section 253(c). (See Level 3, supra, 477 F.3d at p. 532.) ExteNet contends if section 253(c) were to apply, the City's "manage[ment] [of] the public rights-of-way" when it considered ExteNet's application was not "on a competitively neutral and nondiscriminatory basis," as it argues section 253(c) commands. We are not persuaded. We read section 253(c) to have essentially two parts, with the first including the phrase "manage the public rights-of-way," and the second to be all of the clauses after the disjunctive "or" immediately thereafter. The phrase "on a competitively neutral and nondiscriminatory basis" is most naturally read as an independent clause qualifying the broader language "to require fair and reasonable compensation from telecommunications providers . . . for use of public rights-of-way on a nondiscriminatory basis." (See § 253(c).) After all, if we read the provision as ExteNet urges, it would read something like, "to manage the public rights-of-way . . . for use of public rights-of-way," which seems awkward, somewhat nonsensical, and, even if sensible, would make the second use of the phrase "rights-of-way" mere surplusage or unnecessarily redundant. Thus, we are unwilling to adopt ExteNet's interpretation of this statute. (See Dyna-Med, supra, 43 Cal.3d at pp. 1386-1387.) As a result, ExteNet has not, and cannot, argue the City failed to treat it "on a competitively neutral and nondiscriminatory basis" when it "require[d] fair and reasonable compensation from" ExteNet (when it applied for its siting permits). (See § 253(c).) And even if there were enough prohibitory effect here to create a problem under section 253(a), the City may still find refuge in the "safe harbor" of section 253(c). (See Level 3, supra, 477 F.3d at p. 532.)
Moreover, the last clause of section 253(c), "if the compensation required is publicly disclosed by such government" clearly can apply only to the second part of this provision, not the first—which confirms both (1) this provision is meant to have essentially two parts, and (2) everything after the disjunctive "or" (i.e., the second part of the provision) is meant to be read together, independent from the first part.
f. No Violation of the Equal Protection Guarantee Under the Fourteenth Amendment
ExteNet argues the City's actions violated the guarantee of equal protection under the United States Constitution. Within the cluster of arguments that ExteNet presents, this one appears to us to be an argument of last resort, and understandably so. It has no merit.
We construe ExteNet's equal protection argument to be one of that rare category of "[c]lass-of-one equal-protection claims," which are " 'an application of [the] principle' that the seemingly arbitrary classifications of a group or individual by a governmental unit requires a rational basis." (See Integrity Collision Center v. City of Fulshear (5th Cir. 2016) 837 F.3d 581, 587 (Fulshear), citing Engquist v. Oregon Dept. of Agriculture (2008) 553 U.S. 591, 602.) We will assume arguendo there is here " 'a clear standard against which departures, even for a single plaintiff, could be readily assessed.' " (Fulshear, at p. 587.)
We find ExteNet has failed to show a difference in treatment, compared to other companies. First, we note ExteNet was not excluded from installing its DAS network, for, as noted above, the City invited ExteNet to re-apply. (See Fulshear, supra, 837 F.3d at pp. 587-588.) Thus, ExteNet's claim fails there. Second, we further note ExteNet has not shown how it was treated differently from other companies at the same time. Although ExteNet tries to show differences in prior treatment of T-Mobile in 2009 and AT&T in 2007, when the City granted those companies' permits, the City had not yet adopted its ROW Regulations. And during ExteNet's application process, no other provider finished applying. Since this is the sole point ExteNet relies on, its argument must fail, because surely a municipality is empowered to change its regulations from time to time (see generally Cal. Const., art. XI, §§ 5, 7 & 9)—and all the more so here: the City learned from the 2009 decision that its lack of clear regulations upset its residents. Thus, ExteNet has failed to show how it was treated differently by the City's decision.
Although T-Mobile did apply for a second round of five permits, in 2010 it dropped its applications, and we cannot speculate as to how it might have been treated differently in the outcome compared to ExteNet.
Furthermore, even if ExteNet had been treated differently, we need only find the City acted with a rational basis—the lowest standard of review for constitutional claims. (See Fulshear, supra, 837 F.3d. at p. 587.) We think that, for all the reasons discussed throughout this opinion, the City had a rational basis (aesthetics) for making its decision. (See City Council v. Taxpayers for Vincent (1984) 466 U.S. 789, 805 ["It is well settled that the state may legitimately exercise its police powers to advance [a]esthetic values."]; see also Honolulu Weekly, Inc. v. Harris (9th Cir. 2002) 298 F.3d 1037, 1045 ["[T]he Supreme Court . . . ha[s] found that aesthetics can be a substantial government interest."].)
ExteNet argues we should apply a heightened standard of review because it believes the City's decision necessarily implicated ExteNet's free speech rights. But ExteNet has not shown how its own free speech rights have been violated, nor how free speech was implicated here at all.
g. Other Arguments: Economic and Technical Need, Due Process
Finally, ExteNet argues the City impermissibly required it to prove economic and technical need, because such purported requirements are, it contends, preempted by sections 701, 1001, and 1002. But the purported requirements of proving economic and technical need are beside the point because we can uphold the City's decision on only one finding. (See Desmond, supra, 21 Cal.App.4th at pp. 336-337; Barton, supra, 62 Cal.App.4th at pp. 1187-1188.) Here, as stated above, we uphold the City's decision on aesthetic grounds.
ExteNet also argues the residents were not entitled to a hearing pursuant to the guarantee of due process. Its rationale is that, "[a]s a matter of law, affixing small equipment boxes to an existing utility pole in a developed urban area does not result in a ' "significant" or "substantial" deprivation[ ] of property' [of the residents living nearby] so as to trigger constitutional due process rights." (Robinson v. City & County of San Francisco (2012) 208 Cal.App.4th 950, 963.) But none of the residents, nor the City, argued ExteNet's boxes were so large as to trigger due process rights, thus entitling residents to a hearing. Rather, the City properly relied on BMC sections 12.10.040 through 12.10.060, its ROW Regulations, and sections 2902, 7901, and 7901.1, to hold a hearing after receiving two residents' appeal of the engineer's decision, and then relied on aesthetic grounds to make a different decision. ExteNet's argument therefore fails.
ExteNet moved this court to take judicial notice of an electronic version of a map of the San Francisco Bay Area from the 2010 U.S. Census, which it argues "proves" the City is indeed "urban" within the meaning of Robinson. We deny the motion, since the Census map does not "prove" what ExteNet claims it does and is otherwise immaterial to our analysis.
ExteNet attempts to raise for the first time in its reply brief issues related to unlawful takings. We "will not consider points raised for the first time in a reply brief." (REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500.)
III. DISPOSITION
The trial court's judgment is affirmed in all respects.
/s/_________
Streeter, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Rivera, J.