Opinion
A136714
12-28-2017
PACIFIC BELL TELEPHONE CO., Plaintiff and Appellant, v. CITY OF LIVERMORE et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG11607409)
It has long been recognized that the maintenance of a telecommunications network is primarily a matter of statewide rather than local concern. Consequently, California generally affords telephone companies the right to install and maintain lines along public roads without the need to obtain a grant of authority from a local legislative body. (See Pac. Tel. & Tel. Co. v. City & County of S.F. (1959) 51 Cal.2d 766, 768 (Pacific Telephone I).) Nevertheless, local governments retain some power over the construction and placement of telephone lines. Among other things, Public Utilities Code section 7901 specifies that local governments retain the authority to ensure that poles and lines do not "incommode the public use of the road . . . ." In this appeal, we are asked to decide the scope of a city's authority under section 7901 to regulate the placement of telephone lines and, in particular, whether a city may require a telephone company to place new lines underground on the basis of aesthetic considerations.
Further statutory references are to the Public Utilities Code unless otherwise specified.
The dispute giving rise to this appeal has its origins in an application by Pacific Bell Telephone Co. (Pacific Bell) to install a one-half inch fiber optic cable across three existing utility poles in the City of Livermore (City). The City required Pacific Bell to place the new cable underground or, alternatively, pay a fee equivalent to the estimated cost of placing the cable underground as a condition of installing it on the existing poles. Pacific Bell unsuccessfully sought a writ of mandate to overturn the City's determination.
On appeal, Pacific Bell contends that cities and other local legislative bodies have no authority under section 7901 to regulate the placement of telephone lines based solely upon aesthetic considerations. Further, to the extent cities are permitted to regulate on the basis of aesthetics, Pacific Bell contends there is no evidence establishing that the bundling of a one-half inch fiber optic cable with existing telephone lines will impair the aesthetics of the street.
We conclude that a local legislative body has authority under section 7901 to regulate the installation of telephone lines on the basis of aesthetic concerns, in addition to concerns relating to traffic flow and safety. Nevertheless, we agree with Pacific Bell that the evidence before the City in this case was insufficient to justify its undergrounding decision on aesthetic grounds. Accordingly, we shall reverse the judgment and direct the issuance of a writ allowing Pacific Bell to bundle its fiber optic cable with the telephone lines on existing poles.
FACTUAL AND PROCEDURAL BACKGROUND
The City's Undergrounding Ordinance
The City's General Plan includes a policy to place utility lines underground in new developments and upon redevelopment. (City of Livermore General Plan, Community Character Element Objective CC-2.3, Policy P1.) It is also a City policy to place existing overhead utility lines underground through a program of phased conversion. (Ibid., Policy P2.)
Consistent with the General Plan's preference for placing utilities underground, section 4.02.090 of the City's Development Code, which we shall hereafter refer to as the "undergrounding ordinance," generally requires that new utilities for new construction projects be located underground. (Livermore Development Code, § 4.020.090(A).) It also lists a number of circumstances in which "[n]ew and existing aboveground utilities . . . shall be located underground," including when a project involves "[i]nstallation of and modifications to utilities." (Ibid.) The undergrounding ordinance affords the City Engineer the authority to waive the undergrounding requirement under specified circumstances, including when an installation is temporary or when undergrounding is impractical "because of topography, soil conditions, or other extraordinary physical constraints." (Ibid.,§ 4.02.090(C).) The undergrounding ordinance may also be waived as to appurtenant utility facilities such as transformers and meter cabinets. (Ibid.)
The undergrounding ordinance provides a "payment option" that allows a party otherwise required to place new utilities underground to pay a fee to the City in lieu of undergrounding when certain circumstances apply. (Livermore Development Code, § 4.02.090(B).) One such circumstance is when "[t]here would be no net decrease in utility poles required to support existing aboveground facilities after undergrounding was accomplished." (Ibid., § 4.02.090(B)(1)(a).) A party that wishes to pursue the payment option must submit a request to the City Engineer. (Ibid., § 4.02.090(B)(2).) If it is determined that the project is eligible for the payment option, the party must submit a cost estimate for undergrounding with supporting calculations prepared by a licensed electrical engineer. (Ibid., § 4.02.090(B)(3).) Payment must be made to the City at the time the permit issues, although the City Engineer may allow for a later payment if it is determined that a financial hardship exists. (Ibid., § 4.02.090(B)(4) & (5).) The "in lieu" fee is deposited into a separate account maintained by the City to be used only for future utility undergrounding projects. (Ibid., § 4.02.090(B)(8).)
An aggrieved party may appeal a decision issued pursuant to the undergrounding ordinance. (Livermore Development Code, § 4.02.090(D).) A decision is first appealed to the Planning Commission. (Ibid., § 9.15.020(B)(1).) A decision of the Planning Commission may be appealed to the City Council. (Ibid., § 9.15.020(B)(3).) An aggrieved party has a right to a public hearing on the appeal. (See Ibid., § 9.15.020(D).)
Pacific Bell's Application to Install Fiber Optic Cable on Existing Poles
Pacific Bell is in the process of upgrading its telephone network in California with fiber optic cables that will increase the speed and reliability of its existing data and voice services. As part of its upgrade process, Pacific Bell filed an application with the City for an encroachment permit. Pacific Bell sought to install an aboveground cabinet connected to a one-half inch fiber optic cable that would extend across three existing utility poles. The cable would be placed underground in the few feet between the cabinet and the nearest utility pole. Pacific Bell proposed to entwine the fiber optic cable with two preexisting, larger copper telephone lines that are strung on the poles. The existing utility poles carry not only telephone lines but also cable television and electrical wires.
In a letter responding to Pacific Bell's permit application, City engineering staff agreed that the cabinet could be placed aboveground. However, the City refused to allow the one-half inch cable to be placed across the existing poles. Instead, the City insisted that Pacific Bell install the cable underground. Complying with the City's demand would have required Pacific Bell to trench and bore two to three feet under the street for approximately 320 feet. The City did not require Pacific Bell to place any of the existing telephone or other utility lines underground. Rather, the undergrounding requirement was limited to the one-half inch cable that was proposed to be added. The City advised Pacific Bell that it could avoid the undergrounding requirement if it agreed to pay an "in lieu" fee equal to the estimated cost of placing the one-half inch cable underground.
Pacific Bell appealed the decision to the City's Planning Commission. City staff recommended denying the appeal. City staff noted that the permit application sought to "install and modify utilities" and therefore fell within the scope of the undergrounding ordinance. Although the undergrounding ordinance allows for a waiver of the undergrounding requirement when extraordinary physical constraints make it impractical to place the utilities underground, City staff observed that no such constraints existed here. City staff concluded that granting the appeal request would be inconsistent with the undergrounding ordinance as well as the City's General Plan, which generally requires that the installation of utilities be " 'aesthetically acceptable to the community.' "
At the public hearing before the Planning Commission, a commissioner observed that placing the new fiber optic cable underground would have no effect on the aesthetics of the affected street because the existing utility poles and lines would remain in place. According to that same commissioner, the decision would amount to locating one "tiny little cable" underground. Several commissioners suggested that the City urge Pacific Bell to forego undergrounding and instead pay the "in lieu" fee, which would provide the City with a better option to place the existing poles and lines underground at some later date. The Planning Commission unanimously denied the appeal.
Pacific Bell appealed to the City Council. In its appeal, Pacific Bell contended that the undergrounding ordinance was preempted by state law to the extent it was interpreted to require Pacific Bell to create an underground infrastructure adjacent to existing poles. It asserted that even if aesthetics were a valid basis to regulate the placement of utility lines, there was no evidence that the neighborhood aesthetics would be degraded by the addition of a small cable to the existing lines. Pacific Bell also argued that the City's attempt to impose an "in lieu" fee was preempted by state law that specifies the limited circumstances under which a utility may be forced to bear the cost of placing existing overhead lines underground.
At the hearing on its appeal to the City Council, Pacific Bell presented "before" and "after" photos of the overhead utility lines in the affected area to demonstrate that the fiber optic cable would be virtually indiscernible when bundled with the existing telephone lines. Pacific Bell's representative stated that he understood the City's preference for placing utilities underground for aesthetic purposes, but argued that placing a single small cable underground while leaving all existing, aboveground infrastructure in place would not serve that purpose. The City's representatives presented no evidence or argument to suggest that the addition of a bundled fiber optic cable in this instance would have a negative impact on the aesthetics of the surrounding neighborhood. Instead, the City's representative characterized the "aesthetic benefit" as avoiding a "catastrophic" precedent that would limit the City's ability to enforce the undergrounding ordinance in the future. In response to the contention that the purpose of the undergrounding ordinance would not be served by placing one small cable underground while leaving the preexisting aboveground utilities in place, the City's special counsel responded, "You have to start somewhere."
The City Council unanimously denied Pacific Bell's appeal. The resolution denying the appeal sets forth various findings, including that the proposed overhead installation would be inconsistent with the General Plan and the undergrounding ordinance. The resolution also contains findings that placing utilities underground generally enhances aesthetics by reducing visual clutter and promotes safety by reducing the threat of downed poles and lines. As set forth in the resolution's findings, granting the appeal would "set a precedent that would increase visual clutter . . . as new lines are added over time." The resolution does not contain any finding that Pacific Bell's proposed installation of fiber optic cable, considered alone, would degrade the aesthetics of the neighborhood or materially contribute to visual clutter.
Pacific Bell Files a Petition Seeking a Writ of Mandate
Following the City Council's denial of its appeal, Pacific Bell filed a verified petition for a writ of mandate and complaint for declaratory and injunctive relief against the City and the City Council. Pacific Bell sought a writ of mandate and a permanent injunction directing the City to grant its permit application as submitted so that it could install the one-half inch fiber optic cable on the existing poles without having to place the cable underground or pay an "in lieu" fee. Pacific Bell also sought a declaratory judgment that the City's application of the undergrounding ordinance is preempted by state law. It claimed the City has no authority to deny its application on aesthetic grounds. According to Pacific Bell, the only restriction on the placement of telephone lines under section 7901 is that they may not unreasonably obstruct travel or traffic. Pacific Bell also argued that the "in lieu" fee is preempted by the Public Utilities Commission's Tariff Rule 32, which governs the undergrounding of existing utilities. It further contended the "in lieu" fee violates Government Code section 50030, which specifies that any permit fee must be limited to the reasonable costs of providing the service for which the fee is charged.
As used throughout this opinion, the "City" refers to both the City of Livermore and its City Council.
The trial court denied Pacific Bell's petition for writ of mandate. The court concluded that the undergrounding ordinance is not preempted by state law. According to the court, statutory language in section 7901 authorizing regulation of telephone line placement so as not to "incommode the public use of the road" has been interpreted to encompass aesthetic concerns as well as concerns about obstructing travel and traffic flows. The court found that the City made a "quasi-legislative" finding in this case that it would not allow an exception to the undergrounding ordinance for installations that had a " 'minimal effect' " on public safety and aesthetics. The court concluded the City's action was not arbitrary or capricious.
The trial court also rejected Pacific Bell's challenges to the City's "in lieu" fee. It concluded Tariff Rule 32 is inapplicable to Pacific Bell's application to install a new fiber optic cable because it applies only to existing aboveground utilities. The court further reasoned that the "in lieu" fee did not violate Government Code section 50030 because (1) Pacific Bell could avoid paying the fee by placing the fiber optic cable underground in compliance with the undergrounding ordinance, and (2) the fee is based on Pacific Bell's own estimate of the cost of placing the line underground and therefore does not exceed the reasonable cost of providing the service for which the fee is charged.
Following entry of judgment in favor of the City, Pacific Bell timely appealed.
DISCUSSION
I. Standard of Review
This appeal is from a judgment denying a writ of mandate. Pacific Bell sought a traditional writ of mandate (Code Civ. Proc., § 1085), or, in the alternative, an administrative writ of mandate (Code Civ. Proc., § 1094.5). The standard we apply in reviewing the challenged City decision turns upon the proper characterization of the action. (See Woods v. Superior Court (1981) 28 Cal.3d 668, 678-679 (Woods) [contrasting standards of review applicable to traditional and administrative writs of mandate].)
A writ of mandate is also referred to as a writ of mandamus. (See Code Civ. Proc., § 1084.)
In its order denying the writ petition, the trial court concluded that Pacific Bell's writ petition is in the nature of a challenge to a quasi-legislative act and therefore is properly reviewed under standards applicable to a traditional writ of mandate, which is also referred to as an "ordinary" writ of mandate. For the reasons that follow, we disagree with the trial court and conclude that Pacific Bell's writ petition is properly characterized as one seeking an administrative writ of mandate pursuant to Code of Civil Procedure section 1094.5.
A party seeking review of a public agency decision may bring an administrative mandate action under Code of Civil Procedure section 1094.5 if the challenged decision was " 'made as a result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in a public agency . . . ." (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 566.) In contrast to an administrative writ of mandate, a traditional writ of mandate under Code of Civil Procedure section 1085 "seeks to enforce a mandatory and ministerial duty to act on the part of an administrative agency or its officers." (Los Angeles County Professional Peace Officers' Assn. v. County of Los Angeles (2004) 115 Cal.App.4th 866, 869.) Traditional "mandate will not issue if the duty is not plain or is mixed with discretionary power or the exercise of judgment." (Ibid.)
Ordinarily, quasi-legislative acts are reviewed by traditional mandate and quasi-judicial acts are reviewed by administrative mandate. (Western States Petroleum Assn. v. Superior Court, supra, 9 Cal.4th at pp. 566-567.) "Generally speaking, a legislative action is the formulation of a rule to be applied to all future cases, while an adjudicatory act involves the actual application of such a rule to a specific set of existing facts." (Strumsky v. San Diego County Employees Ret. Ass'n. (1974) 11 Cal.3d 28, 34-35, fn. 2.) A discretionary decision to grant or deny a permit would ordinarily be characterized as a quasi-judicial act that is subject to review under rules applicable to administrative writs of mandate. (See Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4th 1519, 1525.) However, when a governmental official has a ministerial, non-discretionary duty to issue a permit but refuses to do so, a challenge to the denial should be pursued by a traditional mandate petition. (See Palmer v. Fox (1953) 118 Cal.App.2d 453, 455-456 [traditional mandate used to compel city engineer to issue erroneously denied building permit].)
In concluding that the City's action here was not quasi-judicial, the trial court reasoned that Pacific Bell's appeal did not call for the exercise of judgment or discretion, which is the "hallmark of the adjudicative process." (Langsam v. City of Sausalito (1987) 190 Cal.App.3d 871, 880 (Langsam).) The trial court emphasized that Pacific Bell's appeal did not challenge the decision on a basis over which the City had discretion pursuant to the undergrounding ordinance, such as whether the undergrounding requirement might be waived because of extraordinary physical constraints. Instead, according to the court, Pacific Bell sought a " 'minimal effect' " exception to the undergrounding ordinance based upon the preemptive effect of state law.
As support for its conclusion, the trial court cited Langsam, supra, 190 Cal.App.3d 871. In Langsam, an owner of a movie theater applied for a permit to convert part of the building to office space. (Id. at p. 874.) A straightforward application of the applicable ordinances allowed the owner to undertake the conversion without adding any parking spaces. Nevertheless, the city denied the permit because the owner failed to provide additional offstreet parking. (Id. at p. 876.) The city argued that the relevant ordinance had to be "construed" to account for the practical consequences of the proposed change in use. (Id. at p. 877.) The Court of Appeal determined the city's interpretation was erroneous and directed the issuance of a writ ordering the city to issue the permit. (Id. at pp. 878, 882.) The appellate court also concluded the matter was properly treated as a traditional rather than an administrative mandate action. (Id. at p. 878.) In reaching that conclusion, the court observed that the city was compelled to perform a ministerial function and issue the permit because the unambiguous requirements of the ordinance had been satisfied. The decision did not call for an exercise of judgment. (Ibid.) In effect, the city had functioned in a quasi-legislative capacity by amending an existing law through the guise of an adjudicatory process. (Id. at p. 882.) The appellate court noted "the mere fact that an agency proceeding may contain certain characteristics of the judicial process does not convert the proceeding into a quasi-judicial function." (Id. at p. 879.)
Although the facts in Langsam bear some similarity to the facts in this case, we are not persuaded that the opinion's legal analysis applies under the circumstances presented here. Instead, our Supreme Court's decision in Woods, supra, 28 Cal.3d 668, dictates that we should apply administrative mandate standards in reviewing the challenged City decision. In Woods, the Supreme Court held that an assertedly invalid regulation may be reviewed by administrative mandate when the regulation is challenged as applied to the particular circumstances in an administrative hearing. (Id. at pp. 671-672.) There, because the nature of the challenge was to the validity of the regulations, and because the promulgation of regulations is a quasi-legislative rather than a quasi-adjudicative function, the agency whose decision was challenged contended that the appropriate remedy was limited to traditional rather than administrative mandate. (Id. at p. 676.) The Supreme Court disagreed, reasoning that just because "one of the issues involved an attack on the validity of administrative regulations [did not] transform an essentially adjudicatory determination into a 'quasi-legislative' one." (Id. at p. 676.) The agency also contended it was "compelled to enforce its own regulations" in an administrative hearing, irrespective of the regulations' invalidity, thereby making it a " 'useless act' " to challenge the validity of a regulation in an administrative hearing. (Id. at p. 680.) Again, the Supreme Court disagreed with the agency, holding that "an invalid regulation should be vulnerable to attack at the administrative level." (Id. at p. 680.) The court noted that an agency has the power to nullify an invalid regulation of its own making at an administrative hearing. (Id. at p. 680.) "Permitting administrators an opportunity to construe the challenged regulation in a manner to avoid their invalidation is preferable to requiring a court challenge." (Id. at p. 681.)
Here, Pacific Bell claimed the undergrounding ordinance is preempted by state law under the circumstances presented in its permit application. While it is true that the City lacked discretion under the express terms of the undergrounding ordinance to grant the relief sought by Pacific Bell, it is inaccurate to say that the City had no authority to construe its own ordinance in a way to avoid a result that is preempted by state law. Indeed, the City had a duty to construe and apply its undergrounding ordinance in manner consistent with state law. (See Woods, supra, 28 Cal.3d at p. 681.) It was asked to perform a quasi-judicial function in response to a particular set of facts. By contrast, in Langsam, there was no claim that the ordinance at issue was invalid or needed to be construed in a certain way to avoid invalidation. The city in Langsam failed to comply with its ministerial duty and effectively amended the ordinance by adding a requirement simply to achieve a desire outcome and not to comply with the law. Pacific Bell's appeal to the City falls squarely within the type of appeal process described in Woods. Langsam is inapposite. Accordingly, we apply standards applicable to administrative mandate in reviewing the City's decision.
The standard of review is set forth in section 1094.5, subdivision (b) of the Code of Civil Procedure: "The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." " 'Proceeding pursuant to an invalid regulation is not proceeding in the manner required by law." (Woods, supra, 28 Cal.3d at p. 678.) We review questions of law de novo. (Antelope Valley Press v. Poizner (2008) 162 Cal.App.4th 839, 851.)
Where, as here, the underlying case does not involve a fundamental vested right, "abuse of discretion is established if the court determines the findings are not supported by substantial evidence in the light of the whole record." (Code Civ. Proc., § 1094.5, subd. (c); see Young v. City of Coronado (2017) 10 Cal.App.5th 408, 418; Antelope Valley Press v. Poizner, supra, 162 Cal.App.4th at p. 851.) In a case such as this one that does not involve a fundamental vested right, " 'we review the administrative decision, not the superior court's decision." (Kolender v. San Diego County Civil Service Com. (2007) 149 Cal.App.4th 464, 470, italics omitted.)
II. Preemption
Pacific Bell contends the undergrounding ordinance is preempted by state law that purportedly grants it the right to erect poles and telephone lines along public roads. Specifically, it argues that the undergrounding ordinance conflicts with sections 7901 and 7901.1, which give municipalities limited authority over the placement and construction of telephone lines. According to Pacific Bell, a municipality's authority under sections 7901 and 7901.1 is limited to ensuring that telephone lines and poles do not interfere with traffic or pose a safety hazard. It contends that state law does not afford municipal governments the power to prohibit the construction of aboveground telephone poles and lines based solely on aesthetic concerns. Pacific Bell's preemption argument was rejected in T-Mobile West LLC v. City and County of San Francisco (2016) 3 Cal.App.5th 334, review granted December 21, 2016, S238001 (T-Mobile). As we explain, we find the analysis in T-Mobile persuasive and shall follow that opinion's holding.
Rule 8.1115(e)(1) of the California Rules of Court provides that a published Court of Appeal opinion in a case in which the Supreme Court has granted review "has no binding or precedential effect" but may nonetheless be cited for "persuasive value." One of the issues framed for review by the Supreme Court in T-Mobile is the following: "Is a local ordinance regulating wireless telephone equipment on aesthetic grounds preempted by Public Utilities Code section 7901, which grants telephone companies a franchise to place their equipment in the public right of way provided they do not 'incommode the public use of the road or highway or interrupt the navigation of the waters' ?"
In assessing whether a local ordinance is preempted by state law, we begin with the principal that "[a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances not in conflict with general laws." (Cal. Const., art. XI, § 7.) This constitutional authority, often referred to as the "police power," affords municipalities "the plenary authority to govern, subject only to the limitation that they exercise this power within their territorial limits and subordinate to state law." (Candid Enterprises, Inc. v. Grossmont Union High School Dist. (1985) 39 Cal.3d 878, 885.) Local legislation that is an otherwise valid exercise of a municipality's police power is preempted and void if it conflicts with state law. (Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897.)
Preemption analysis "consists of four questions, which in order of increasing difficulty may be listed as follows: (1) Does the ordinance duplicate any state law? (2) Does the ordinance contradict any state law? (3) Does the ordinance enter into a field of regulation which the state has expressly reserved to itself? (4) Does the ordinance enter into a field of regulation from which the state law has implicitly excluded all other regulatory authority?" (Bravo Vending v. City of Rancho Mirage (1993) 16 Cal.App.4th 383, 397.)
"A local ordinance duplicates state law when it is 'coextensive' with state law. [Citation.] [¶] A local ordinance contradicts state law when it is inimical to or cannot be reconciled with state law. [Citation.] [¶] A local ordinance enters a field fully occupied by state law in either of two situations—when the Legislature 'expressly manifest[s]' its intent to occupy the legal area or when the Legislature 'impliedly' occupies the field. [Citation.] [¶] When the Legislature has not expressly stated its intent to occupy an area of law, we look to whether it has impliedly done so. This occurs in three situations: when ' "(1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the" locality.' " (O'Connell v. City of Stockton (2007) 41 Cal.4th 1061, 1067-1068.)
Unless state legislation clearly reflects a preemptive intent, we presume that a state law does not preempt local regulation in an area over which a local government has traditionally exercised control. (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1242.) The party advancing a claim that a local regulation is preempted by state law has the burden of establishing preemption. (Ibid.)
We begin our analysis by recognizing that local governments traditionally exercise control over matters of aesthetics within their jurisdiction. It is well settled that a municipality's police power includes the authority to adopt ordinances for aesthetic reasons or that impose aesthetic conditions upon the issuance of permits. (See Erhlich v. City of Culver City (1996) 12 Cal.4th 854, 886 [aesthetic conditions imposed in connection with land use permits have long been considered valid exercise of city's police power]; Disney v. City of Concord (2011) 194 Cal.App.4th 1410, 1416 [police power authorizes adoption of ordinances for aesthetic reasons].) Thus, the question before us is not whether state law grants a local government discretionary regulatory power to take aesthetics into account when considering an application to install telephone lines. Rather, our inquiry is focused upon whether state law divests local governments of their constitutional powers to regulate on the basis of aesthetic considerations.
Telegraph and telephone companies have long been granted the right, or franchise, to construct their lines along and upon public roads and highways throughout the state. (See Pacific Telephone I, supra, 51 Cal.2d at pp. 770-771; Pacific Tel. & Tel. Co. v. City of Los Angeles (1955) 44 Cal.2d 272, 276.) Since 1951, section 7901 has provided: "Telegraph or telephone corporations may construct lines of telegraph or telephone lines along and upon any public road or highway, along or across any of the waters or lands within this State, and may 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 not to incommode the public use of the road or highway or interrupt the navigation of the waters." (Italics added.) In 1995, the Legislature enacted section 7901.1, which confirmed, "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." (§ 7901.1, subd. (a).)
Section 7901 was previously codified as Civil Code section 536. (See Pacific Tel. & Tel. Co. v. City of Los Angeles, supra, 44 Cal.2d at p. 276.) The statute was originally applied to telegraph companies. (Los Angeles County v. Southern California Tel. Co. (1948) 32 Cal.2d 378, 392.) The statute was amended in 1905 to apply to telephone companies as well as telegraph companies. (Ibid.)
Section 7901 has been characterized as constituting a " 'continuing offer extended to telephone and telegraph companies . . . which offer when accepted by the construction and maintenance of lines' [citation] gives a franchise from the state to use the public highways for the prescribed purposes without the necessity for any grant by a subordinate legislative body." (Pacific Telephone I, supra, 51 Cal.2d at p. 771.) "The offer was made for the purpose of providing the people of the state with statewide communication services" (id. at pp. 774-775), and was considered a matter of state concern, notwithstanding that the regulation of telephone lines in a municipality is also of special interest to the people of the municipality." (Pacific Tel. & Tel. Co. v. City & County of San Francisco (1961) 197 Cal.App.2d 133, 143 (Pacific Telephone II).)
There is no dispute that section 7901 prohibits a local government from entirely barring a telephone corporation from installing lines in the public right of way. (See Pacific Telephone I, supra, 51 Cal.2d at p. 774.) Moreover, municipalities may not charge franchise fees for the privilege of installing telephone lines in the public right of way. (City of Huntington Beach v. Public Utilities Com. (2013) 214 Cal.App.4th 566, 587.) But section 7901 does not grant unlimited rights to telephone companies to install lines in public rights of way. "The utility acquires only a limited right to use the streets to the extent necessary to furnish communications services to the public . . . ." (Pacific Tel. & Tel. Co. v. Redevelopment Agency (1977) 75 Cal.App.3d 957, 963.) The grant of authority is subject to the restriction that telephone installations may not "incommode the public use of the road or highway . . . ." (§ 7901.) Further, as stated in section 2902, a municipal corporation may not surrender "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 . . . location of the poles, wires, mains, or conduits of any public utility, on, under, or above any public streets . . . ." Thus, "the Public Utilities Code 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." (City of Huntington Beach v. Public Utilities Com., supra, 214 Cal.App.4th at p. 591.)
Section 2902 is in a chapter of the Public Utilities Code addressing the circumstances under which a municipal corporation may retain or surrender to the Public Utilities Commission certain vested powers over public utilities. (See § 2901 et seq.) Pacific Bell argues that section 2902 does not confer any powers upon municipal corporations. (See Southern California Gas Co. v. City of Vernon (1995) 41 Cal.App.4th 209, 218.) While it may be true that section 2902 does not confer any additional powers upon municipal corporations that they do not otherwise have, the statute confirms that municipal corporations possess the power to control the location of wires on or below the streets for purposes of advancing the "health, convenience, and safety of the general public . . . ." (§ 2902.)
Pacific Bell does not base its preemption claim on the ground the undergrounding ordinance is duplicative of state law. Nor does it contend the state has expressly or impliedly stated an intent to occupy the entire subject matter of telephone line regulation to the exclusion of any local action. Instead, it claims the undergrounding ordinance is inimical to and in "direct conflict" with state law. Pacific Bell contends that section 7901 by its plain terms allows telephone corporations to "erect poles" subject only to the restriction that they do not "incommode the public use" of public streets. It argues that a categorical rule preventing the installation of poles based on aesthetic concerns renders section 7901's authorization to erect poles a nullity.
Pacific Bell's legal argument turns upon whether the term "incommode the public use of the road" as used in section 7901 encompasses aesthetic concerns as well as issues involving traffic flow and safety. The principles that guide our interpretation of statutory language are well settled. When interpreting a statute, we must "determine the Legislature's intent so as to effectuate the law's purpose." (Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737.) "We first examine the statutory language, giving it a plain and commonsense meaning. We do not examine that language in isolation, but in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend. If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute's purpose, legislative history, and public policy." (Ibid.) "When attempting to ascertain the ordinary, usual meaning of a word, courts appropriately refer to the dictionary definition of that word." (Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111, 1121-1122.)
In T-Mobile, Division Five of this court concluded "section 7901 is a limited grant of rights to telephone corporations, with a reservation of local police power that is broad enough to allow discretionary aesthetics-based regulation." (T-Mobile, supra, 3 Cal.App.5th at pp. 346-347, rev. granted.) The court based its conclusion on an interpretation of the term "incommode the public use" as used in section 7901. (Id. at pp. 347-352.) The T-Mobile court relied in part upon Sprint PCS Assets, L.L.C. v. City of Palos Verdes Estates (9th Cir. 2009) 583 F.3d 716 (Palos Verdes Estates). In Palos Verdes Estates, the Ninth Circuit Court of Appeals found no conflict between the city's consideration of aesthetics and section 7901 in connection with the denial of applications to construct wireless facilities in the public right of way. (T-Mobile, supra, at p. 353.) "The key to that conclusion was the court's observation that article XI, section 7 of the California Constitution grants local government authority to regulate local aesthetics and 'neither [section] 7901 nor [section] 7901.1 divests it of that authority.' " (Ibid.) In construing the statutory language, the court in Palos Verdes Estates relied upon a dictionary definition of "incommode" meaning "to 'subject [it] to inconvenience or discomfort; to trouble, annoy, molest, embarrass, inconvenience' or '[t]o affect with inconvenience, to hinder, impede, obstruct (an action, etc.).' " (Palos Verdes Estates, supra, at p. 723.) The Palos Verdes Estates court also observed that " 'public use' of the rights-of-way is not limited to travel" and that "[i]t is a widely accepted principle of urban planning that streets may be employed to serve important social, expressive, and aesthetic functions." (Ibid.)
The court in T-Mobile found the Palos Verdes Estates opinion persuasive and concluded that an interpretation of "incommode the public use" that limits the term to concerns about traffic flow and safety is overly narrow. (T-Mobile, supra, 3 Cal.App.5th at pp. 354-355, rev. granted.) The T-Mobile court rejected claims that prior case law had interpreted the term to refer solely to an unreasonable obstruction or interference with traffic and ordinary travel, pointing out that the earlier cases did not consider the question of whether "aesthetic impacts of a particular telephone line installation could ever 'incommode the public use.' " (Id. at p. 353.) The court concluded that "[n]othing in section 7901 explicitly prohibits local government from conditioning the approval of a particular siting permit on aesthetic concerns." (Id. at p. 355.)
We see no reason to disagree with the court's thorough treatment of this issue in T-Mobile. "Incommode" as used in section 7901 encompasses aesthetic concerns as well as traffic flow and safety issues. Further, nothing in section 7901.1 changes our conclusion. First, section 7901.1 by its express terms was intended to be "consistent with Section 7901 . . . ." (§ 7901.1, subd. (a).) Second, the statute does not apply to the siting and placement of telephone lines. (See T-Mobile, supra, 3 Cal.App.5th at pp. 357-359, rev. granted.) Instead, section 7901.1 is concerned solely with local government regulation of temporary construction in the public right of way. (Id. at p. 358.)
At oral argument on appeal, Pacific Bell claimed that T-Mobile is not dispositive of the issue before this court. It argued that, irrespective of whether local governments have the power to regulate the placement of telephone lines based on aesthetic concerns, section 7901 by its plain terms grants a right to erect poles, which are necessarily placed aboveground. To the extent that Pacific Bell is suggesting that section 7901 grants telephone companies a right to erect poles without regard to whether they may unreasonably "incommode the public use of the road," we disagree. In Pacific Telephone II, supra, 197 Cal.App.2d at page 147, the court held that section 7901 encompasses the placement of telephone wires underground, even though the statute contains no reference to underground infrastructure and instead refers solely to "poles" and other aboveground structures. According to the court, "[a] sensible interpretation of [section 7901] is that it grants a franchise to telephone companies to construct and maintain in city streets the necessary equipment to enable the company to operate its business of providing communication . . . . The mere fact that in 1905 modern facilities were not in existence, should not prevent their use today." (Ibid.) Section 7901 simply provides that a telephone company may construct the necessary infrastructure to support a telecommunications network, but it does not necessarily guarantee that the infrastructure will take a particular form, such as aboveground wires and poles. For example, section 7901 mentions that telephone companies may erect "piers" and "abutments" as well as "poles," but it is plainly not the case that telephone companies have a right to construct piers and abutments when those structures serve no purpose. The same is true of poles, which are unnecessary when telephone lines are placed underground.
Pacific Bell cites Pacific Telephone II for the principle that the mere installation of poles and overhead lines, without more, does not "incommode the public use of the road" under section 7901. (See Pacific Telephone II, supra, 197 Cal.App.2d at p. 146.) But that decision also recognizes that there may be circumstances when installing poles and overhead lines amounts to an "unreasonable obstruction of the public use." (Ibid.) Indeed, Pacific Telephone II supports the notion that a local government may restrict the construction of poles and overhead lines under certain conditions. The Pacific Telephone II court noted that San Francisco "prohibit[ed] the construction of poles and overhead wires in certain areas of the city." (Pacific Telephone II, supra, 197 Cal.App.2d at p. 146, fn. 4.) There was apparently no dispute that San Francisco had the authority to prohibit poles in designated areas where "aerial construction would border on the absurd" as a result of the "great mass of telephone wires . . . ." (Id. at p. 147.) Thus, instead of guaranteeing telephone companies an unfettered right to erect poles and install overhead lines, as Pacific Bell claims, the decision in Pacific Telephone II acknowledges that cities may prohibit poles and overhead lines when their installation would unreasonably "incommode the public use of the road," either because of traffic flow, safety, or aesthetic concerns.
Therefore, we reject Pacific Bell's claim that the undergrounding ordinance is preempted by sections 7901 and 7901.1.
III. Substantial Evidence
Pacific Bell argues that, even if sections 7901 and 7901.1 permit municipalities to regulate on the basis of aesthetics, the trial court erred in denying the writ because the City's decision was not supported by substantial evidence that the installation of a fiber optic cable would impair the aesthetics of the street. We agree.
As noted above, an abuse of discretion is established if we determine that the City's findings are not supported by substantial evidence. (Code Civ. Proc., § 1094.5, subd. (c); see Young v. City of Coronado, supra, 10 Cal.App.5th at p. 418.) In Palos Verdes Estates, the Ninth Circuit Court of Appeals upheld a city's decision to deny permits to install wireless facilities where the denial was premised on aesthetic grounds, reasoning that the installation "would detract from the residential character of the neighborhood and that the [installation] would not be in keeping with the appearance of that main entrance to the City." (Palos Verdes Estates, supra, 583 F.3d at p. 726.) The court consequently found that the decision was supported by substantial evidence. (Ibid.) The court in T-Mobile was confronted with a facial challenge to an ordinance and therefore did not consider the sufficiency of the evidence supporting an administrative decision, but the court nonetheless addressed a concern that basing permitting decisions on aesthetics considerations would effectively nullify section 7901. (T-Mobile, supra, 3 Cal.App.5th at pp. 355-356, rev. granted.) The court observed that the question of whether a wireless facility "might aesthetically 'incommode' the public use of the right-of-way" turns upon the facility's location. (Id. at p. 356.) The T-Mobile court specifically noted that a permit applicant could pursue an as-applied challenge to the ordinance if a wireless permit were denied on aesthetic grounds "in an area already cluttered with other electrical and telecommunications equipment . . . ." (Ibid.)
Here, the circumstances closely resemble the hypothetical situation described in T-Mobile in which the project area is already cluttered with electrical and telecommunications equipment. Pacific Bell's application involved entwining a small fiber optic cable with preexisting, larger copper telephone lines strung across three existing poles, which carried not only telephone lines but also cable television and electrical wires. There was no evidence before the City, much less substantial evidence, that neighborhood aesthetics would be degraded by the addition a small fiber optic cable to the existing telecommunications infrastructure. We observe that the option offered by the City of allowing Pacific Bell to pay a deposit in lieu of undergrounding the fiber optic cable undercuts the argument that undergrounding is necessary to preserve the neighborhood's aesthetics.
The City does not even attempt to argue that the addition of a small fiber optic cable across three existing telephone poles, considered alone, has an aesthetic impact sufficient to justify the decision to place that one cable underground. Instead, it claims the "precedent-setting" nature of the decision justifies the denial of Pacific Bell's permit application. Pacific Bell argues that section 7901.1, subdivision (b) requires that the City's regulation "be applied to all entities in an equivalent manner," and it further claims that it is obliged under the equal protection clause to treat all similarly situated entities equally. In effect, the City claims that it will have no choice but to grant other applications to install overhead utility lines if it grants Pacific Bell's application. The argument is specious.
As discussed above, section 7901.1 addresses temporary construction and not the placement and siting of telephone lines. (See T-Mobile, supra, 3 Cal.App.5th at pp. 357-359, rev. granted.) Consequently, that statute's mandate to apply its provisions "in an equal manner" is inapplicable. Moreover, a prerequisite to a meritorious equal protection claim is a showing that two or more similarly situated groups have been treated in an unequal manner. (See Walgreen Co. v. City and County of San Francisco (2010) 185 Cal.App.4th 424, 434.) An applicant seeking to install overhead lines that will have a significant aesthetic impact is not similarly situated to an applicant, such as Pacific Bell, that seeks to install a fiber optic line across three existing poles. An equal protection claim under those circumstances would fail at the threshold. Simply put, the City's concern that granting Pacific Bell's application would set a precedent requiring it to grant other applications to install overhead lines is unwarranted.
The City also argues that, even if the addition of a single fiber optic cable is insignificant, it is appropriate to consider the cumulative impacts over time of adding overhead lines. As support for this proposition, the City cites to provisions in the California Environmental Quality Act (CEQA). (See Pub. Res. Code, § 21083, subd. (b)(2).) CEQA has no application here. As Pacific Bell points out, the City determined that the proposed installation of fiber optic cable is categorically exempt from CEQA. Furthermore, even if there were some basis for considering cumulative impacts, the City has not pointed to anything in the administrative record to suggest that additional overhead lines are planned or anticipated to be installed on the three telephone poles at issue. Speculation that additional overhead lines may be added in the future does not qualify as substantial evidence. (See People v. Wallace (2017) 15 Cal.App.5th 82, 93 ["Speculation is not substantial evidence."].)
We conclude the administrative record does not contain substantial evidence to support the City's findings regarding the aesthetic impact of Pacific Bell's proposed fiber optic cable installation.
In light of our conclusion, it is unnecessary to address Pacific Bell's arguments that the undergrounding ordinance conflicts with Tariff Rule 32 or that the option to pay a deposit in lieu of undergrounding violates Government Code section 50030.
DISPOSITION
The judgment is reversed. The trial court shall issue a writ of mandate directing the City to grant Pacific Bell's permit application as submitted. Pacific Bell shall be entitled to recover its costs on appeal.
/s/_________
McGuiness, P.J. We concur: /s/_________
Siggins, J. /s/_________
Margulies, J.
Associate Justice of the Court of Appeal, First Appellate District, Division One, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.