Omnipoint Communications, Inc. v. City of Huntington Beach

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OMNIPOINT COMMUNICATIONS, INC., Nos. 10-56877
a Delaware corporation, DBA T- 10-56944
Mobile,
Plaintiff-Appellee/ D.C. No.
Cross-Appellant, 2:09-cv-03777-
RGK-SS
v.
CITY OF HUNTINGTON BEACH a OPINION
public entity organized and existing
under the laws of the State of
California, CITY COUNCIL OF THE
CITY OF HUNTINGTON BEACH,
Defendants-Appellants/
Cross-Appellees.
Appeals from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued November 6, 2012
Resubmitted December 4, 2013
Pasadena, California
Filed December 11, 2013
2 OMNIPOINT V. CITY OF HUNTINGTON BEACH
Before: Susan P. Graber, Sandra S. Ikuta,
and Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Ikuta
SUMMARY*
Telecommunications Act of 1996
Reversing the district court’s judgment, the panel held
that the Telecommunications Act of 1996 did not preempt the
City of Huntington Beach’s decision to require a company to
obtain voter approval before constructing a mobile telephone
antenna on city-owned park property.
The panel held that 47 U.S.C. § 332(c)(7)(A) functions to
preserve local land use authorities’ legislative and
adjudicative authority subject to certain substantive and
procedural limitations. The panel held that § 332(c)(7) has
the following preemptive scope: (1) it preempts local land use
authorities’ regulations if they violate the requirements of
§ 332(c)(7)(B)(i) and (iv); and (2) it preempts local land use
authorities’ adjudicative decisions if the procedures for
making such decisions do not meet the minimum
requirements of § 332(c)(7)(B)(ii) and (iii).
The panel held that the City’s “Measure C,” which
amended the City charter to impose certain limits on the
City’s ability to authorize use of city-owned property, was not
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
OMNIPOINT V. CITY OF HUNTINGTON BEACH 3
a land use regulation or decision subject to the limitations of
§ 332(c)(7), but rather was a voter-enacted rule that the City
could not lease or sell city-owned property for certain types
of construction unless authorized by a majority of the
electors. Agreeing with the Second Circuit, the panel held
that Measure C, therefore, was not preempted by the
Telecommunications Act of 1996.
COUNSEL
Jennifer McGrath, City Attorney, and Scott F. Field (argued),
Assistant City Attorney, Huntington Beach, California, for
Defendants-Appellants/Cross-Appellees.
Martin L. Fineman (argued), Davis Wright Tremaine LLP,
San Francisco, California; John J. Flynn III and Benjamin Z.
Rubin, Nossaman LLP, Irvine, California, for Plaintiff-
Appellee/Cross-Appellant.
OPINION
IKUTA, Circuit Judge:
The City of Huntington Beach appeals the district court’s
determination that the Telecommunications Act of 1996, Pub.
L. No. 104-104, 110 Stat. 56 (codified as amended at U.S.C.
Titles 15, 18, and 47) (the TCA), preempted its decision to
require Omnipoint Communications, Inc. (doing business as
“T-Mobile”), to obtain voter approval before constructing
mobile telephone antennae on city-owned park property. T-
Mobile cross-appeals the district court’s denial of permanent
4 OMNIPOINT V. CITY OF HUNTINGTON BEACH
injunctive relief. We conclude that the City’s decision was
not preempted and consequently reverse the district court.
I
We first consider the preemptive scope of the TCA.
Because congressional intent “is the ultimate touchstone of
preemption analysis,” when “Congress adopts a statute that
provides a reliable indication of Congressional intent
regarding preemption, the scope of federal preemption is
determined by the statute.” Engine Mfrs. Ass’n v. S. Coast
Air Quality Mgmt. Dist., 498 F.3d 1031, 1040 (9th Cir. 2007)
(internal quotation marks omitted). Although congressional
intent “primarily is discerned from the language of the pre-
emption statute and the statutory framework surrounding it,”
also relevant are “the structure and purpose of the statute as
a whole, as revealed not only in the text, but through the
reviewing court’s reasoned understanding of the way in
which Congress intended the statute and its surrounding
regulatory scheme to affect . . . the law” and parties whose
actions are affected by the statute. Medtronic, Inc. v. Lohr,
518 U.S. 470, 486 (1996) (internal quotation marks and
citations omitted); see also Cipollone v. Liggett Grp., Inc.,
505 U.S. 504, 516 (1992) (explaining that Congress’s intent
to preempt “may be explicitly stated in the statute’s language
or implicitly contained in its structure and purpose” (internal
quotation marks omitted)). Therefore, we begin by assessing
the text of the relevant provisions of the TCA and their
historical and statutory context.
In 1996, Congress passed the TCA to encourage the
development of telecommunications technologies, including
wireless telephone services. City of Rancho Palos Verdes v.
Abrams, 544 U.S. 113, 115 (2005). Among other means to
OMNIPOINT V. CITY OF HUNTINGTON BEACH 5
this end, Congress enacted 47 U.S.C. § 332(c)(7), entitled
“[p]reservation of local zoning authority,” which “was
intended to minimize federal interference with State and local
land use decisions,” Kay v. City of Rancho Palos Verdes,
504 F.3d 803, 813 (9th Cir. 2007), while still reducing “the
impediments imposed by local governments upon the
installation of facilities for wireless communications, such as
antenna towers,” Abrams, 544 U.S. at 115.
As suggested by the title of § 332(c)(7), an understanding
of the mechanics of local governments’ zoning and land use
decision making is necessary to discern the section’s
preemptive scope. See Kay, 504 F.3d at 813. In general,
local governmental authorities, such as cities and counties,
establish local zoning boards, planning commissions, or
analogous entities to promulgate and enforce zoning and
other land use restrictions within their jurisdiction. Patrick J.
Rohan, Zoning and Land Use Controls § 1.02[1]–[2] (2012);
Julian Conrad Juergensmeyer & Thomas E. Roberts, Land
Use Planning and Development Regulation Law § 3.1 (3d ed.
2013); see also Williamson Cnty. Reg’l Planning Comm’n v.
Hamilton Bank, 473 U.S. 172, 176, 180–81 (1985). Local
land use decisions fall into two general categories. See Dolan
v. City of Tigard, 512 U.S. 374, 385 (1994) (contrasting
“[t]he sort of land use regulations” that “involved essentially
legislative determinations classifying entire areas of the city,”
with a city’s “adjudicative decision to condition petitioner’s
application for a building permit on an individual parcel”).
First, local land use authorities may recommend or enact
plans and zoning maps that affect the classification and use of
property generally. Juergensmeyer & Roberts, supra, at
§ 2:7. This is primarily a legislative function. See Rohan,
supra, at § 1.03[2][a]; Cal. Gov’t Code § 65301.5 (classifying
the adoption of a general plan as a legislative act). Second,
6 OMNIPOINT V. CITY OF HUNTINGTON BEACH
local land use authorities may exercise an adjudicative
function that involves applying land use rules to individual
property owners, including the consideration of requests for
waivers and variances. Juergensmeyer & Roberts, supra, at
§§ 5:1, 5:3.
In addressing land use regulations and decisions related
to the installation of wireless communication facilities, the
TCA closely tracks the typical division of land use decision
making. See Kay, 504 F.3d at 814 (noting that the text used
in § 332(c)(7) “closely mirrors” state laws relating to zoning
and permitting agency decisions). Congress began by
enunciating a general principle of preservation of local
authority:
Except as provided in this paragraph
[§ 332(c)(7)] nothing in this chapter[1] 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 U.S.C. § 332(c)(7)(A).
This preservation principle is subject to the limitations set
forth in the subsections of § 332(c)(7)(B). Two of the four
subsections, § 332(c)(7)(B)(i) and (iv), relate to the
promulgation of generally applicable legislative regulations.
Thus, § 332(c)(7)(B)(i) provides that the “regulation of the
1
Section 332(c)(7) is codified within chapter five of Title 47 of the
United States Code, which is entitled: “Wire or Radio Communication.”
See 47 U.S.C. §§ 151 et seq.
OMNIPOINT V. CITY OF HUNTINGTON BEACH 7
placement, construction, and modification of personal
wireless service facilities by any State or local government or
instrumentality thereof 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.” Id.
§ 332(c)(7)(B)(i)(I)–(II). Section 332(c)(7)(B)(iv) provides
that “[n]o State or local government or instrumentality
thereof may regulate the placement, construction, and
modification of personal wireless service facilities on the
basis of the environmental effects of radio frequency
emissions” where the facilities otherwise comply with federal
requirements. Id. § 332(c)(7)(B)(iv).
The other two subsections, § 332(c)(7)(B)(ii) and (iii),
refer to the procedures used by local land use authorities in
making adjudicative decisions. See Cellular Tel. Co. v. Town
of Oyster Bay, 166 F.3d 490, 494 (2d Cir. 1999) (noting that
the TCA “clearly establishes procedural requirements that
local boards must comply with in evaluating cell site
applications”). These subsections provide:
(ii) A State or local government or
instrumentality thereof shall act on any
request for authorization to place, construct,
or modify personal wireless service facilities
within a reasonable period of time after the
request is duly filed with such government or
instrumentality, taking into account the nature
and scope of such request.
(iii) Any decision by a State or local
government or instrumentality thereof to deny
a request to place, construct, or modify
8 OMNIPOINT V. CITY OF HUNTINGTON BEACH
personal wireless service facilities shall be in
writing and supported by substantial evidence
contained in a written record.
Id. § 332(c)(7)(B)(ii)–(iii). Under these subsections, local
zoning authorities must adopt administrative procedures
requiring timely, written decisions when adjudicating an
application for approval of a development project involving
“personal wireless service facilities.” Id. § 332(c)(7)(B)(ii);
see Kay, 504 F.3d at 814–15.
We conclude that § 332(c)(7)(A) functions to preserve
local land use authorities’ legislative and adjudicative
authority subject to certain substantive and procedural
limitations. This conclusion clarifies the scope of
§ 332(c)(7)(A)’s preemptive effect. Section 332(c)(7) does
not have a typical preemption clause that expressly preempts
state law, followed by a savings provision excepting certain
types of state enactments from preemption. Cf. 29 U.S.C.
§ 1144(a), (b)(2)(A) (stating that the provisions of ERISA
“shall supersede any and all State laws” as specified, except
as provided in the savings clause). Rather, § 332(c)(7) takes
the opposite approach: it begins with a savings clause, and
then makes the savings clause subject to exceptions. Thus
§ 332(c)(7) expressly preserves local land use decisions, such
as decisions regarding “placement, construction, and
modification” of wireless facilities, and then makes this
preservation principle subject to a proviso: “[e]xcept as
provided” in the rest of § 332(c)(7). Id. § 332(c)(7)(A)
(emphasis added). Although this approach reverses the order
of a typical preemption clause, it accomplishes the same goal:
by logical inference, Congress intended the proviso section to
preempt local land use authority that does not comply with
the requirements in § 332(c)(7)(B), while preserving local
OMNIPOINT V. CITY OF HUNTINGTON BEACH 9
zoning authority that complies with such requirements. See
MetroPCS v. City of S.F., 400 F.3d 715, 735–36 (9th Cir.
2005) (holding that the TCA preempts only those local
zoning decisions that conflict with the TCA’s “anti-
discrimination and anti-prohibition provisions” and not
decisions that are harmless to the FCC’s regulatory scheme).
Accordingly, we conclude that § 332(c)(7) has the following
preemptive scope: (1) it preempts local land use authorities’
regulations if they violate the requirements of
§ 332(c)(7)(B)(i) and (iv); and (2) it preempts local land use
authorities’ adjudicative decisions if the procedures for
making such decisions do not meet the minimum
requirements of § 332(c)(7)(B)(ii) and (iii).
II
We next consider the facts of this case, including the
pertinent legal framework for the City’s decisions.
A
This case implicates two different aspects of municipal
authority: the City’s authority to enter into licenses of city-
owned property, and the City’s responsibility for making and
implementing planning and zoning decisions. First, as a
charter city under California law, the City has plenary
authority to control municipal property. The California
constitution reserves to charter cities the authority to “make
and enforce all ordinances and regulations in respect to
municipal affairs, subject only to restrictions and limitations
provided in their several charters.” Cal. Const. art. 11, § 5(a);
see also Simons v. City of L.A., 63 Cal. App. 3d 455, 467–68
(1976). In 1990, an initiative known as Measure C amended
the city charter to impose certain limits on the City’s ability
10 OMNIPOINT V. CITY OF HUNTINGTON BEACH
to authorize use of city-owned property. This provision
states:
No . . . structure costing more than
$100,000.00 may be built on or in any park or
beach or portion thereof . . . unless authorized
by the affirmative votes of at least a majority
of the total membership of the City Council
and by the affirmative vote of at least a
majority of the electors voting on such
proposition at a general or special election at
which such proposition is submitted.2
According to the voter information pamphlet, which is “a
proper extrinsic aid” to interpreting an initiative, People v.
Lester, 220 Cal. App. 4th 291, 301 (2013), the purpose of
Measure C was to allow “the citizens of Huntington Beach to
have a direct vote in any future commercial development or
sale of the city’s parks and beaches,” so as to put control of
public park lands into the hands of the voters “and out of the
reach of developers and special interest groups.” By giving
the voters authority over construction on public lands,
Measure C operates as a limitation on the City’s otherwise
plenary authority over these lands.
Second, the City has obligations under state and local law
for making and implementing land use decisions. Although
charter cities are also exempt from many of the state local
planning and zoning regulations provisions, see Cal. Gov’t
2
Measure C is now codified in § 612(b) of the City’s charter, although
the cost of a structure that triggers the provision’s applicability has
increased to $161,000 and continues to be adjusted annually. See
Huntington Beach, Cal., Charter § 612(b).
OMNIPOINT V. CITY OF HUNTINGTON BEACH 11
Code §§ 65700, 65803, their legislative bodies “adopt general
plans which contain the mandatory elements” set by state law.
Id. § 65300; see also id. §§ 65302, 65700(b). The City has
established such a general plan, see Huntington Beach, Cal.,
Code § 201.06, and has also promulgated regulations to
implement its own zoning and subdivision code, id. § 201.02.
The City delegated the preparation and recommendation of
legislative land use determinations, such as amendments to
the general plan and zoning map, to a planning commission,
id. §§ 2.34.020, 202.10(D); see also id. §§ 247.08, 247.10,
subject to the City Council’s final authority to approve or
deny legislative determinations, id. § 202.10(A). The City
delegated its adjudicative land use decision-making authority
to administrative bodies, primarily the planning commission
and a zoning administrator. See id. § 202.10(D)–(E). These
administrative bodies adjudicate land use applications subject
to the City Council’s authority to act as a board of appeals.
Id. § 202.10(A).
The City’s decision-making process is subject to typical
administrative procedural requirements. As relevant here, the
planning commission, zoning administrator, or City Council
must render its decision on an application or appeal “in the
form of a written statement, minute order or resolution,”
which “shall be accompanied by reasons sufficient to inform
as to the basis for the decision.” Id. § 248.10(A). Further,
“[t]he reviewing body shall formulate its written findings
within five calendar days after the decision” and must provide
notice of its decision to the applicant and any other party that
requests such notice. Id. § 248.10(B), (C).
At the time of T-Mobile’s application in 2007, the City
Council had in place an ordinance establishing a procedure
for the adjudication of applications to construct and modify
12 OMNIPOINT V. CITY OF HUNTINGTON BEACH
wireless communication facilities within city limits. See id.
§ 230.96(C).3 Under the regulations, a person wishing to
install and operate a wireless communication facility, such as
an antenna, must submit a permit application to the Planning
and Building Department. Id. § 230.96(E)(1).4 After the
department confirms that the application is complete, the
applicant must obtain a wireless permit from the director of
the department or a conditional use permit from the zoning
administrator. Id. § 230.96(E)(2)–(3). The applicant can
appeal a denial of the permit to the planning commission. Id.
§ 230.96(E)(2)(d), (3)(c).5 The City Council is the final
arbiter of any appeal of the planning commission’s
adjudication of a permit application. Id. § 202.10(A).
B
In July 2007, T-Mobile submitted two applications to the
City’s Planning and Building Department for wireless permits
to construct wireless antennae in Harbour View Park and
Bolsa View Park. The applications identified the City as the
property owner of the parcel where the antennae would be
3
At the time of T-Mobile’s application, an earlier version of the
ordinance, Huntington Beach, Cal., Ordinance 3568, § 10 (Aug. 5, 2002),
was in effect. Because the subsequent amendments to this ordinance do
not change our analysis, we cite the current version of the ordinance to
avoid confusion.
4
The requirement that an application first be submitted to the Planning
and Building Department did not appear in the original ordinance. See id.
5
In the earlier version of the ordinance, § 202.10(D) of the zoning and
subdivision code established the planning commission’s authority to hear
appeals from the decisions of the director and zoning administrator. See
Huntington Beach, Cal., Code § 202.10(D).
OMNIPOINT V. CITY OF HUNTINGTON BEACH 13
located. Under the director’s authority, see Huntington
Beach, Cal., Code § 230.96(E)(2), the Planning and Building
Department approved T-Mobile’s requests for the two
wireless permits shortly thereafter, in August and September
2007.
After obtaining these permits, T-Mobile commenced lease
negotiations with the City, and ultimately entered into Site
License Agreements to lease space in each park for the
antennae. The agreements were executed by the City’s mayor
in December 2008 and approved unanimously by the City
Council in January 2009. Under the Site License
Agreements, the City, as owner of the property, authorized T-
Mobile to install and maintain its wireless facility on the
City’s premises, for which T-Mobile would pay a licensing
fee.
After obtaining the Site License Agreements, T-Mobile
applied to the City’s Building and Safety Department for
building permits to begin construction of the facilities. In its
applications, T-Mobile reported that the “Total Construction
Valuation” of the Bolsa View and Harbour View antennae
were $80,000 and $60,000, respectively. After the
department issued these building permits in April 2009, T-
Mobile began to construct the Harbour View site antenna.
After construction commenced at Harbour View, local
residents who opposed the construction commenced
aggressive protests that blocked activities at the site. T-
Mobile agreed to stop construction temporarily pending the
City’s efforts to resolve this unexpected public opposition. In
subsequent communications between T-Mobile and City
representatives, the City learned that the “total construction
value” of the projects that T-Mobile had reported on the
14 OMNIPOINT V. CITY OF HUNTINGTON BEACH
applications for building permits did not reflect the total
construction costs, which would substantially exceed
$100,000 for each antenna.
In April 2009, the City held a special meeting of the City
Council, at which residents spoke against the construction of
an antenna at the Harbour View location. At a subsequent
closed session, the City Council determined that, although T-
Mobile had valid land use and building permits and valid Site
License Agreements, T-Mobile still was required to obtain
voter approval under Measure C before it could proceed with
construction. Accordingly, on July 23, 2009, the City
Attorney sent T-Mobile a letter stating that the City
“continues to recognize the validity of the Site Licenses and
the Wireless Permits,” but because the construction costs for
each wireless facility exceeded $100,000, the City was
obliged to enforce Measure C. Therefore, the City Attorney
directed the Building and Safety Department to suspend the
building permits until T-Mobile obtained voter approval.
Instead of seeking voter approval, T-Mobile filed a
complaint in federal district court in May 2009 and moved for
preliminary injunctive relief to prevent the City from
requiring compliance with Measure C. T-Mobile argued that
the TCA barred the City from applying Measure C to T-
Mobile’s proposed projects. The City filed a motion to
dismiss on the ground that it had acted as a participant in the
market, rather than as a regulator, and therefore the “market
participant doctrine” shielded its decisions regarding the use
of its own property from federal preemption.
In October 2009, the district court denied the pretrial
motions submitted by T-Mobile and the City. First, it denied
T-Mobile’s motion for preliminary injunctive relief because
OMNIPOINT V. CITY OF HUNTINGTON BEACH 15
T-Mobile had not sufficiently demonstrated a likelihood of
irreparable harm. The court also rejected the City’s argument
that it could avoid the TCA’s preemptive effect because it had
acted as a market participant and not as a regulator, holding
that Measure C was a regulation in both form and substance.
T-Mobile and the City then filed cross-motions for partial
summary judgment. In July 2010, the district court denied
the City’s motion and granted T-Mobile’s motion in part.
The court held that the TCA required the City to process T-
Mobile’s applications for building permits within a
reasonable period of time, and to explain the reason for denial
of the applications in writing, supported by substantial
evidence. 47 U.S.C. § 332(c)(7)(B)(ii)–(iii). Because the
voter approval process required by Measure C did not meet
these procedural requirements, the court concluded that the
City could not use Measure C as a reason to deny T-Mobile’s
applications or to delay making a decision. The court gave
the City sixty days either to grant T-Mobile’s permit
applications, or to deny the applications in a manner that
complied with the procedural requirements of the TCA.
On remand from the district court, the City Council
followed the procedures set forth in the TCA to revoke the
permits for both antennae in August 2010.6 T-Mobile
challenged this permit revocation in a separate action,
Omnipoint Commc’ns d/b/a T-Mobile v. Huntington Beach,
6
In the November 2010 general election, the voters of Huntington
Beach disapproved construction of T-Mobile’s proposed antennae. On
November 12, 2010, the district court entered a final judgment granting T-
Mobile’s request for declaratory relief and denying its request for
injunctive relief pursuant to the July 9, 2010 order. The court also
dismissed T-Mobile’s remaining claims as moot.
16 OMNIPOINT V. CITY OF HUNTINGTON BEACH
C.D. Cal. Case No. CV10-1471-RGK (“T-Mobile II”), which
resulted in a settlement in March 2012 solely as to T-
Mobile’s application to construct an antenna at the Harbour
View site. The parties agreed that this action would proceed
with respect to T-Mobile’s application to construct an antenna
at the Bolsa View site.
On appeal, the City claims that the district court erred in
prohibiting it from delaying its decision on T-Mobile’s permit
applications until T-Mobile had obtained the approval of the
voters pursuant to Measure C. As it argued before the district
court, the City asserts that the TCA did not preempt its
decision to require compliance with Measure C, because the
market participant doctrine shields the City’s decisions about
use of its own property from federal preemption. In the
alternative, the City contends that its application of Measure
C is not preempted because it is consistent with the TCA’s
procedural requirements. On cross-appeal, T-Mobile claims
that the district court should have issued a permanent
injunction ordering the City to let T-Mobile resume
construction, and should not have remanded the case to the
City for reconsideration of T-Mobile’s permits. We have
jurisdiction under 28 U.S.C. § 1291.
III
Given our conclusion that the TCA preempts a local land
use authority’s legislative regulations if they fail to
incorporate the requirements of § 332(c)(7)(B)(i) and (iv),
and preempts its adjudicative decisions if the procedures for
making such decisions do not meet the minimum
requirements of § 332(c)(7)(B)(ii) and (iii), we begin with the
threshold question whether Measure C is such a regulation or
decision.
OMNIPOINT V. CITY OF HUNTINGTON BEACH 17
On its face, Measure C is not the sort of local land use
regulation or decision that is subject to the limitations of
§ 332(c)(7), but rather is a voter-enacted rule that the City
may not lease or sell city-owned property for certain types of
construction unless authorized by a majority of the electors.
Cf. Simons, 63 Cal. App. 3d at 468; Cal. Const. art. 11, § 5(a).
Unlike a legislative land use regulation, Measure C does not
classify public and private property or impose design and use
restrictions on the different classifications. Indeed, Measure
C does not prevent the City from agreeing to any sort of
construction or use of public land, provided that the City
obtains public approval. Nor was Measure C promulgated by
the local governmental authorities (i.e., the City Council or
Planning Commission) that are authorized by law to engage
in such legislative land use decision making. Measure C
simply provides a mechanism for the City, through the voters,
to decide whether to allow construction on its own land. It
does not regulate or impose generally applicable rules on “the
placement, construction, and modification of personal
wireless service facilities,” § 332(c)(7)(B)(i) and (iv), and so
the substantive limitations imposed by these subsections are
inapplicable.
Second, Measure C is not the sort of local land use
decision that fulfills an adjudicative function and that
therefore must meet the procedural constraints of
§ 332(c)(7)(B)(ii) and (iii). Rather, Measure C gives the
voters an unconstrained right to approve or disapprove a
proposed construction project on city-owned park lands, and
thus serves as a constraint on the City’s plenary power to
control the use of public lands. The voters need not consider
whether the project meets any particular criteria, and their
determination is not subject to review or appeal, unlike
adjudicative decisions by the City’s Planning Commission
18 OMNIPOINT V. CITY OF HUNTINGTON BEACH
and zoning administrator. Because Measure C merely
restrains the City’s actions as a property owner and does not
affect the City’s administrative procedures for approving or
denying a request “to place, construct, or modify personal
wireless service facilities,” § 332(c)(7)(B)(ii) and (iii), the
minimum procedural requirements established by these
sections are likewise inapplicable.
That the requirements imposed by Measure C are not part
of a local government’s zoning and land use decision-making
process is clear from the facts of this case. The City’s
adjudicative decision making in response to T-Mobile’s
applications was fully compliant with the TCA: both the
City’s Planning and Building Department and its Building
and Safety Department approved T-Mobile’s applications in
writing within a reasonable period of time. The City’s July
2009 letter to T-Mobile affirmed the validity of these
administrative decisions. But a building permit does not give
a builder the authority to begin construction on property
belonging to a third party; rather, the builder must secure the
third party’s permission. Here, the City’s authority to give
such permission via the Site License Agreement was limited
by Measure C. The Site License Agreement itself required T-
Mobile’s compliance with all “ordinances and regulations of
general application now in effect or subsequently enacted”
(which would include Measure C) as a condition of the
license. Thus, once it became clear that T-Mobile’s proposed
project triggered Measure C, T-Mobile lacked the necessary
land owner permission until Measure C’s requirements were
discharged. In other words, Measure C had an effect on
landowner approval, not on the City’s adjudicative process.
In sum, the voter-approval requirement imposed by
Measure C is outside the City’s framework for land use
OMNIPOINT V. CITY OF HUNTINGTON BEACH 19
decision making because it does not implicate the regulatory
and administrative structure established by the City’s general
plans and zoning and subdivision code. By its terms, the
TCA applies only to local zoning and land use decisions and
does not address a municipality’s property rights as a
landowner. Because the requirements imposed by Measure
C fall outside the TCA’s preemptive scope, the city charter
provision is not preempted by § 332(c)(7)(B).
The Second Circuit reached a similar conclusion in Sprint
Spectrum L.P. v. Mills, 283 F.3d 404, 407 (2d Cir. 2002). In
that case, a school district entered into a lease agreement
permitting Sprint to build an antenna on the roof of a public
high school, subject to specified limitations on levels of radio
emissions. Id. at 407–08. After Sprint informed the school
district that it would install equipment that exceeded those
limits, the district barred Sprint from commencing
construction. Id. at 410. Sprint sued, arguing that the school
district’s decision was preempted by § 332(c)(7)(B)(iv),
which prohibits local authorities from “regulat[ing] the
placement, construction, and modification of personal
wireless service facilities on the basis of the environmental
effects of radio frequency emissions.” 47 U.S.C.
§ 332(c)(7)(B)(iv).
The Second Circuit disagreed, holding that “the language
and structure of the TCA implicitly recognize that some
governmental decisions are not regulatory,” and thus are not
preempted by the TCA. Sprint Spectrum, 283 F.3d at 420.
Because § 332(c)(7)(B)(iv) does not preempt governmental
actions that involve the management of its own property, the
court concluded that the school district’s decisions relating to
leasing its roof was not preempted. Id. at 417–21.
20 OMNIPOINT V. CITY OF HUNTINGTON BEACH
As in Sprint Spectrum, the City’s exercise of its property
rights in accordance with Measure C here was non-regulatory
and non-adjudicative behavior akin to an action by a private
land owner. See id. Because the City’s determination that it
could not license T-Mobile’s use of the city-owned Bolsa
View Park without voter approval is not the type of zoning
and land use decision covered by § 332(c)(7), we conclude
that it was not preempted by that section.7 We reverse and
remand for proceedings consistent with this opinion.8
REVERSED AND REMANDED.
7
Because we decide on this basis, we need not address the City’s
argument that Measure C is not subject to preemption due to a free-
standing “market participant exception.” See Am. Trucking Ass’ns v. City
of L.A., 133 S. Ct. 2096, 2102 n.4, 2103–05 (2013) (holding that the Court
did not need to address whether “a freestanding ‘market-participant
exception’” limited the express terms of a preemption clause, because the
appellants had abandoned that argument, and concluding that the
regulation at issue was preempted by the plain terms of the federal
preemption clause).
8
Our disposition of the City’s appeal renders T-Mobile’s cross-appeal
seeking a permanent injunction moot.