T-Mobile, NextG Networks of California and ExteNet have sued the City of San Francisco claiming that the city permitted more than 200 wireless facilities under one set of rules concerning the length of the terms and just recently decided to change those term limits. The wireless companies said the newly adopted Ordinance No. 12-11 and other Department of Public Works regulations are unlawful, because they prohibit actions that were previously permissible, violate other state codes, and include language preempted by Congress’ collocation-by-right legislation.
The complaint notes the number of wireless facilities permitted in recent years, including 44 permits for wireless deployments granted to T-Mobile from 2009 to 2011. NextG received permits and installed 186 facilities in the right of way and ExteNet received permits and installed 54 wireless facilities. All of which were permitted with the expectation of 10-year terms, including automatic renewals, according to the plaintiffs.
The wireless ordinance in question, however, changes the term limit to two years and does not provide for automatic renewals. The complaint says that this violates California Government Code Section 65964, which reads:
As a condition of approval of an application for a permit for construction or reconstruction … a city or county shall not …unreasonably limit the duration of any permit for a wireless telecommunications facility. Limits of less than 10 years are presumed to be unreasonable absent public safety reasons or substantial land use reasons.
The new regulations treat permit holders as if they were new installations when their permits expire, subject to California Environmental Quality Act (CEQA) review, and the possibility of denial. As a result, the permit holders “lose their vested property rights without due process of law.” Additionally, the plaintiffs claim that the city is preempted by the California Public Utilities Commission when it comes to implementation of the CEQA rules.
“DPW regulations require applicants to obtain approval under CEQA under the City Planning Department,” according to the complaint, [which] is preempted by, and violates, state law.”
On a different tack, the complaint said that certain language in the wireless ordinance is preempted by Section 6409a of Congress’ Middle Class Tax Relief and Job Creation Act of 2012, because it subjects applicants to a discretionary permitting process if they seek to replace current equipment with any equipment that is not of “substantially the same size, appearance and power.”
“However, [Section] 6409a preempts the city’s authority to use that standard or to consider the power or appearance, at all,” according to the lawsuit. “If replacement equipment does not ‘substantially change’ the ‘physical dimensions of the tower or base station’ the city has no discretion under [Section] 6409a to consider size, appearance or power.”