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Friday, January 17, 2014

Voter Approval Required For Cell Tower Lease

The Ninth Circuit Court of Appeals recently upheld a city requirement that a cellular provider obtain voter approval before installing a cell tower in a City park. Omnipoint Communications, Inc. v. City of Huntington Beach, No. 10-56877 (9th Cir. Dec. 11, 2013) The ballot approval requirement, called Measure C, is part of the City's charter and provides as follows:

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.

The cellular provider refused to comply, claiming that federal law preempted the City's voter approval requirement. The appellate court disagreed, holding that the federal law "applies only to local zoning and land use decisions and does not address a municipality’s property rights as a landowner." The local requirement was not preempted because it only related to the lease of City land, not zoning or land use approvals. 
Hat tip to the IMLA Appellate Practice Blog for reporting on this case.

Post Authored by Julie Tappendorf, Ancel Glink


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