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T-Mobile West LLC v. City and County of San Francisco

California Court of Appeals, First District, Fifth Division

October 13, 2016

T-MOBILE WEST LLC et al., Plaintiffs and Appellants,
v.
THE CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents.

         THE COURT.—

         IT IS ORDERED that the opinion filed on September 15, 2016 (3 Cal.App.5th 334,___Cal.Rptr.3d___), is modified as follows and appellants' petition for rehearing is DENIED:

         1. On page 2, the second full sentence on the page is deleted [3 Cal.App.5th 339, advance report, 2d par., lines 10-14] and replaced with the following sentence:

         In 2011, the City and County of San Francisco (City) enacted an ordinance requiring all persons to obtain a site-specific permit before seeking to construct, install, or maintain certain telecommunications equipment, known as “Personal Wireless Service Facilities” (hereafter wireless facilities), in the public right-of-way.

         2. On page 2, at the conclusion of the new second sentence mentioned above [3 Cal.App.5th 339, advance report, 2d par., lines 14], a new footnote is added (with all following footnotes renumbered accordingly) that reads:

         Under the City's ordinance, wireless facilities are antennas and related facilities used to provide or facilitate the provision of "Personal Wireless Service," which is defined as commercial mobile services provided under a license issued by the Federal Communications Commission.

         3. On page 4, in part I [3 Cal.App.5th 341, advance report, first full par., last line], a new final sentence is added to the first partial paragraph that reads:

         The Ordinance also prohibits issuance of a Wireless Permit if the applicant seeks to "[i]nstall a new Utility or Street Light Pole on a Public Right-of-Way where there presently are no overhead utility facilities."

         4. On page 9, in part II [3 Cal.App.5th 345, advance report, 1st par., last line], at the conclusion of the first partial paragraph and following the citation

Page 999d

to Arcadia Unified School Dist. v. State Dept. of Education (1992) 2 Cal.4th 251, 267 [5 Cal.Rptr.2d 545, 825 P.2d 438], a new footnote is added (with all following footnotes renumbered accordingly) that reads:

         In a petition for rehearing, Plaintiffs insist the correct standard requires them " 'to show the statute is unconstitutional in all or most cases." " (City of San Diego v. Boggess (2013) 216 Cal.App.4th 1494, 1504 [157 Cal.Rptr.3d 644].) "The precise standard governing facial challenges 'has been a subject of controversy within [the California Supreme Court].' " (Zuckerman v. State Bd. of Chiropractic Examiners (2002) 29 Cal.4th 32, 39 [124 Cal.Rptr.2d 701, 53 P.3d 119].) "Under the strictest test, the statute must be upheld unless the party establishes the statute ' "inevitably pose[s] a present total and fatal conflict with applicable constitutional prohibitions." ' [Citation.] Under the more lenient standard, a party must establish the statute conflicts with constitutional principles ' "in the generality or great majority of cases" ' [Citation.] Under either test, the plaintiff has a heavy burden to show the statute is unconstitutional in all or most cases, and ' "cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute." ' " (Coffman Specialties, Inc. v. Department of Transportation (2009) 176 Cal.App.4th 1135, 1145 [98 Cal.Rptr.3d 643], italics added; accord, Boggess, at p. 1504.) In suggesting we are compelled to apply a more lenient standard, Plaintiffs misplace their reliance on facial challenges involving First Amendment and abortion rights. (See, e.g., American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 342-343, 347 [66 Cal.Rptr.2d 210, 940 P.2d 797] (plur. opn. of George, C. J.).)

         5. On page 22, in part II.A., in the first complete paragraph [3 Cal.App.5th 355, advance report, last par., line 6], at the conclusion of the second sentence, a new footnote is added that reads:

         Plaintiffs claim this hypothetical assumes facts that are not possible under the Ordinance because all utilities are underground at the former locations. The Ordinance provides: "The Department shall not issue a [wireless permit] if the Applicant seeks to: [f] (1) Install a new Utility or Street Light Pole on a Public Right-of-Way where there presently are no overhead utility facilities." However, Plaintiffs simply ask us to assume there are no overhead utility facilities near Coit Tower or the Painted Ladies. Even if we can assume as much, the Ordinance's ban on new utility poles is itself a challenged, but seemingly reasonable, aesthetic restriction. By referencing Coit Tower and the Painted Ladies, we do not mean to suggest these are the only areas of aesthetic value where installation ...


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