Court says cities have right to bar cell towers
In Palos Verdes Estates, where the first home builders 80 years ago had to pass muster before an “art jury,” it came as little surprise when city fathers nixed wireless telecommunications contraptions that would clash with the community’s carefully nurtured ambience and obstruct ocean vistas.
“When you move to a community, you want cell coverage, but you also want beauty and aesthetics,” said attorney Scott J. Grossberg, who helped the city wage a legal battle against Sprint.
Earlier this month, the U.S. 9th Circuit Court of Appeals sided with the seaside community, ruling that city officials could bar the construction of unsightly cellular towers. The city’s victory was hailed by urban planners concerned about the proliferation of visual blight in the name of technological progress.
Like Palos Verdes Estates, San Francisco, San Diego County, La Canada Flintridge and other communities have fought the purveyors of cellular service in court on aesthetic grounds and, for the most part, have won. The recent legal disputes, planners say, could encourage telecommunications companies to develop more creative alternatives amenable to residents’ concerns -- or spur more litigation.
In its ruling the three-judge panel paid heed to the esoteric benefits of landscape unmarred by the accouterments of modern public utilities.
“The experience of traveling along a picturesque street is different from the experience of traveling through the shadows of a WCF [wireless communications facility], and we see nothing exceptional in the city’s determination that the former is less discomforting, less troubling, less annoying and less distressing than the latter,” the panel observed in the ruling. “After all, travel is often as much about the journey as it is about the destination.”
The judges quoted 19th century Viennese architect Camillo Sitte’s lyrical waxings on beauty and art in an 1889 book that became a classic in urban planning. Their Oct. 13 ruling also pointed to a state utility code giving city leaders the right to define what might “incommode” the enjoyment of public right of way.
Sprint had argued that the city’s rejection of two wireless construction projects on aesthetic grounds violated the 1996 Telecommunications Act, which bars municipalities from action that constitutes “a prohibition on the provision of wireless service.”
The appeals court panel disagreed, pointing to the company’s own assertion that it already serves some 4,000 customers in the affluent enclave.
Sprint spokesman Matt Sullivan would say only that the company was “disappointed with the decision because of its potential impact on wireless coverage.” He declined to speculate on how the ruling might affect other pending projects denied building permits, including two similar wireless towers rejected by La Canada Flintridge.
Sprint lost its suit against La Canada Flintridge in federal district court and on appeal to the 9th Circuit had the case sent back for further proceedings, said the city attorney, Mark W. Steres. But the telecommunications company has neither reapplied for antenna permits nor pressed its court case, Steres said. He said he viewed the Palos Verdes Estates ruling as endorsement of his position that city officials have the authority to regulate what is built on public property and can apply aesthetic considerations.
Aesthetics, some planning experts said, tend to be an issue more for those on the wealthy side of the social spectrum, whereas poorer communities in dire need of the jobs and income brought by construction are often less focused on the visual trade-offs.
“These communities are very inward-oriented. They feel that so long as my needs are taken care of, we don’t want to engage with the rest of the city or the rest of the world,” said UC Irvine urban design professor Ajay Garde.
Palos Verdes Estates officials said they have worked with other cellular providers to install facilities that minimize intrusions on views and ambience.
“There is a middle ground. It is unfortunate that Sprint decided to litigate instead of work with us,” said Allan Rigg, a longtime resident and director of planning and public works. Rigg acknowledged that there are areas of the city where cell coverage is spotty.
Palos Verdes Estates, incorporated in 1939, was subject to broad deed restrictions from the onset of private home construction in the 1920s, when New York banker Frank A. Vanderlip drafted a trust indenture establishing setback requirements, prohibiting billboards and requiring that builders “preserve the fine views of ocean, mountains and park.” The founder also created the Palos Verdes Homes Assn. and the Palos Verdes Art Jury to check home construction and landscaping plans for aesthetic conformance.
Pioneers in the embrace of aesthetics in urban development, the residents of Palos Verdes Estates are emulated across Southern California’s patchwork of planned communities in what Garde, the urban design professor, has dubbed “the gated community syndrome.”