Court sides with H.B. against T-Mobile
The 9th U.S. Circuit Court of Appeals ruled Wednesday that Huntington Beach’s decision to deny T-Mobile permission to construct a cell tower in a city park will stand unless reversed by voters.
According to the federal court ruling, the Telecommunications Act does not preempt Measure C, a charter provision mandating that leases or development to city-owned parks and beaches costing more than $100,000 be approved by voters, according to a statement by City Atty. Jennifer McGrath.
The federal act was adopted to expand communication in the country, but since Huntington Beach’s conditions pertained to giving constituents a say in the project and didn’t affect zoning and land use, the city had the right to deny the mobile carrier its permit.
The ruling has halted plans by T-Mobile to install an antenna at Bolsa View Park unless approved by voters.
The decision brings to an end a five-year legal saga between Surf City and the telecommunications company. McGrath wrote at the end of her statement that the likelihood of T-Mobile getting the appeals court to rehear the item is slim.
The issue dates to January 2009, when the city approved leases with the mobile phone carrier to construct two cell towers, one at Harbour View Park and the other at Bolsa View Park.
Residents around Harbour View Park, adjacent to an elementary school, were up in arms against the project as soon as construction began in April of that year. They argued that the project should have been discussed with the public and that the structure was potentially a safety hazard.
The city learned in May 2009 that costs for the antennas were higher than proposed. It was reported that T-Mobile said the Harbour View fixture would cost $60,000 and the Bolsa View structure $80,000.
It was later discovered that both antennas would cost $200,000 each. The city asked T-Mobile to suspend construction until the project was approved by voters. The company sued as a result.
In July 2010, the federal district court ruled in favor of the mobile phone provider, stating that federal law preempted Measure C. But the court also told the city that it could consider revoking the land use permit, and the city did so in August 2010.
Meanwhile, both parties appealed the May 2009 ruling to the 9th Circuit. Huntington Beach also added Measure Q to the 2010 ballot, which asked voters if they wanted the two cell towers built in the parks. Residents voted against the construction plan.
From late 2011 through early 2012, T-Mobile and the city discussed alternative sites for the towers. The locations suggested were the Huntington Harbour Mall and the Springdale Pump Station, replacing Harbour View and Bolsa View parks, respectively.
Plans for the fixture at the mall were approved, but the company was denied a permit for the other location because of its proximity to the ecological sensitive Bolsa Chica wetlands.