Court rules against county's cellular phone ordinance

SAN DIEGO -- The county of San Diego's on-again, off-again attempt to control how and where cellular telephone companies erect towers in unincorporated communities could soon be off again, after a federal appeals court ruled this week that the county's long-challenged ordinance was illegal.

The U.S. Ninth Circuit Court of Appeals ruled Wednesday after a year and a half of consideration that the federal injunction outlawing the county's ordinance in 2005 should stand.

The county has been using the ordinance to regulate cell tower construction for the last year -- despite the 2005 federal injunction -- because the Ninth Court judges stayed the injunction while it considered the county's appeal of the federal court ruling.


On Wednesday, unhappy county officials said they believed that the stay would remain in effect, allowing the county's ordinance to stand, at least temporarily, while the county decided if it wants to appeal Tuesday's ruling.

Daniel Pascucci, attorney for Sprint Personal Cellular Service, which filed the federal lawsuit to overturn the county's lawsuit, said Sprint was very pleased with the appeal's court decision.

The county and Sprint have been battling ever since the county created its ordinance in 2003.

County officials said they created their ordinance -- which is stricter than federal guidelines -- to force cellular companies to build more artfully camouflaged cellular towers, such as those hidden inside flagpoles or disguised as trees, and to protect unincorporated communities from being overrun by unsightly towers and antenna poles.

Sprint has maintained that the federal government, not local governments, should be the judges of how cellular infrastructure is built. They argue that local ordinances such as the county's actually try to outlaw cell towers through political maneuvering.

"If you think of the big picture, in order for the system to work, people in every state in the country need seamless wireless coverage through wireless facilities," Pascucci said.

County officials, meanwhile, said Wednesday that they were unhappy with the decision, although they were pleased that the ruling denied Sprint's request for financial penalties to be levied against the county.

"Supervisor (Pam) Slater-Price thinks this ruling impedes the board's ability to protect the public," Slater-Price Chief of Staff John Weil said.

Slater-Price's district includes Rancho Bernardo, where neighborhoods have fought to keep cellular towers out.

Tom Bunton, the county's senior deputy counsel, said Wednesday that county supervisors would meet in closed session Tuesday to discuss whether to appeal further.

Bunton said the county could request the full Ninth Circuit court to rehear the issue -- because Tuesday's ruling was handed down by a three-member panel of the court -- or try to get the U.S. Supreme Court to hear an appeal.

Bunton also said he believed that the county ordinance would remain in effect, despite the Ninth Court ruling, until the county decided how it would proceed, and perhaps longer if an appeal was filed.

Sprint filed suit against the ordinance in 2004.

In July 2005, a U.S. District Court overturned the county ordinance, saying it was superseded by the less-stringent federal regulations.

Supervisors adopted temporary bans on building or considering any new cell towers, then filed their appeal to the Ninth Circuit Court and won the stay that allowed the ordinance to remain in effect.

Pascucci said Wednesday that he believed that there were numerous local governments in California that had cellular tower ordinances that would run afoul of the Ninth Court's ruling. He said the ruling could provide guidance for other cities and counties.

At the same time, Pascucci said San Diego County's argument that cellular companies would create blight if governed only by the federal laws was wrong.

Pascucci said the country's existing system of land-lines -- wired telephones -- was supported by mile upon mile of telephone polls and overhead wires, perhaps "hundreds" of poles in a given 10-mile stretch.

By contrast, he said, wireless cellular telephone systems would have only a few antennas, and no wires, in the same 10-mile area.

"The factual premise that you're going to pay the price in 'blight' is just not true," he said.

http://www.nctimes.com/articles/2007/03/15/news/sandiego/5_02_583_14_07.txt