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SA Page 10 LEGAL UPDATES from page 1 ......................................... Court Upholds City's Free Speech Rights A recent decision by the 6th District Court of Appeals resulted in a dismissal of a lawsuit that challenged whether the city of Salinas lawfully pro- vided its residents with infonnation regarding the fiscal impacts of a ballot measure that would have repealed the Salinas' utility users' tax (UUT). After the measure had qualified for the ballot, city staff presented the Salinas City Council with a staff report regarding the fiscal impacts on Salinas if the measure passed, as well as recommendations on potential service cuts. The measure's proponents attended these hearings, and were given the oppor- tunity to make presentations to the council. The infonnation from these hearings was summarized in a one-page flyer that was mailed to residents, and the voters ultimately defeated the measure. The proponents filed a lawsuit against the City of Salinas, claiming that the hearings and the flyer unlawfully interfered with the electoral process, and improperly used public money for partisan campaign purposes. The Superior Court ruled against the proponents, who then appealed to the 6th District Court of Appeals. The 6th District held that the proponenfs lawsuit was a Strategic lawsuit Against Public Participation (SLAPP) lawsuit. Under the state's anti-StAPP law, the 6111 District also found that the city's speech regarding the measure arose from its protected free speech rights. Further, because the city did not expressly advocate a position on the measure, it did not cross the line into partisan campaigning, and therefore, the city's speech was not illegal. The League congratulates the Salinas City Attorney's office, and thanks fonner League Assistant General Counsel Steve Traylor for authoring the friend of the court brief. The case is Vatyas v. City of Salinas 2005 WL 3549476 (CaI.App. 6111 Dist.). As the potential remains that the case could be appealed to the Supreme Court, the Legal Advocacy Committee will continue to monitor the case. 9th Circuit Limits City Control of Right-of-Way In a decision that has both stunned and baffled city attorneys, the 9th Circuit has held that neither federal nor state law allows cities to prohibit a tele- phone or cellular phone from locating facilities in the public right-of-way based solely on a city's concerns regarding the facilities' adverse visual impact. The Court interpreted California Public Utilities Code section 7901 and 7901.1 to allow cities to control time, place, and manner ac:œss to the public right-of-way, but that time, place, and manner control did not allow a city (in this case La Canada Flintridge) to regulate based on visual impacts. Therefore, as the city did not have that regulatory authority, under federal, La Canada Flintridge could not reject an application to place facilities in the right-of-way under on the facilities' visual impacts alone. No state court has ever held that 7901 or 7901,1 restricted a city from regulating telephone and cellular facilities in the public right-of-way with respect to visual impacts. The 9th Circuits decision is unique. This decision means that a city cannot prohibit a telephone or cellular company from placing facilities in the public right-of-way if the facilities do not interference with the use of the right-of-way, and the facilities meet all applicable health and safety regulations. In addition, cities cannot require these companies to "stealth" or othelWÍse reduce visual impacts as a condition for approval. The likely result is that tele- phone and cellular companies will look to increase their use of the public right-of-way as a way of avoid- ing costly private property leases and "stealthing" requirements, thus increasing visual blight in the public right-of-way. Please note, however, that the 9th Circuit's ruling does not affect regulation of facilities located solely on private property. The case is Sprint PCS Assets v. City of La Canada Flintridge, 2006 WL 91541. La Canada Flintridge will be requesting that the 9th Circuit rehear the case, and the Legal Advocacy Committee has approved the League of California Cities filing a friend-of-the-court brief to support the La Canada Ffintridge's request. PAGE 10 - PRIORITY FOCUS January 27,2006. Issue #4 Visit the League's Official Website--www.cacities.org '.'.., ..., ,.., , ---""""-"---_-~_".n__',__~-_..._,-,_._,