June 2018 - Parks & Recreation - 34

LAW REVIEW

PHOTO PROVIDED BY SAVE RIDGEWOOD PARK

To access San Diego's Ridgewood
Neighborhood Park, park users will have
to walk between a park building and a
Verizon cellular tower " tree. "

As characterized by the appeals
court, improved wireless coverage
" undoubtedly enhances the enjoyment of the Park for those Park
visitors who use their wireless communication devices to read books,
watch movies, listen to music or
play games. "

Park Purpose Disruption?
On appeal, DCOP argued Charter
55 prohibited " nonpark or nonrecreation uses. " The appeals court

As characterized by the appeals
court, improved wireless
coverage " undoubtedly enhances
the enjoyment of the Park for
those Park visitors who use their
wireless communication devices
to read books, watch movies,
listen to music or play games. "
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Parks & Recreation

rejected this argument. According
to the court, " nonpark uses in dedicated parks will be upheld, despite
restrictive charter language, provided that the nonpark uses do not interfere with, change, or impair park
purposes. "
Accordingly, in determining
whether a proposed use is permissible, the appeals court would first
examine " the specific city charter or any language dedicating
the park " to determine whether
a proposed use is permissible. If
a proposed use was permissible,
the court would then determine
" whether the proposed use would
disrupt or interfere with park purposes. "
In this instance, the appeals court
found the proposed use was permissible because " the Project does
not change the Park's use or purpose. " Having found the proposed
use was permissible, the appeals

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court would then have to determine
" whether the Project would disrupt
or interfere with park or recreation
uses or purposes. "
As noted by the appeals court,
the city had the following policy for
evaluating applications for WCFs
in city parks:
The City may grant authorization for WCFs on dedicated or designated parkland and open space
if it is first determined by the Park
and Recreation Department that
the requested action would not
only meet the criteria of this Policy, but would also be consistent
with City Charter Section 55.
In addition, the appeals court
noted this policy required proposed WCFs in city parks to be
" disguised such that they do not
detract from the recreational or
natural character of the parkland
or open space. " Further, the court
found that the policy required proposed WCFs to be " integrated with
existing park facilities and must not
disturb the environmental integrity
of the parkland or open space. "
In the opinion of the appeals
court, the city's park director had
complied with these policies by determining " the design and location
of the facilities proposed for the
Park by Verizon " to ensure " those
facilities will not detract from or
interfere with the park or its uses " :
The features of the proposed
mono-eucalyptus tree allow it to
integrate with the other trees in the
immediate vicinity. Also, the minimal footprint, height, location,
and design features of the equipment housing allow the facility

June 2018 - Parks & Recreation

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