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February 10, 2000


The opinion of the court was delivered by: Brewster, Senior District Judge.



I. Introduction

Before the Court are two motions: (1) Plaintiff's Motion for Summary Judgment re: First and Sixth Claims for Relief, and (2) Defendants' Motion for Summary Judgment and/or Summary Adjudication of Issues.

II. Background

The zoning ordinances of the City of El Cajon (hereinafter "City") permit cellular antennas in any zone provided a conditional use permit is granted. (Plaintiff's Request for Judicial Notice ("RJN"), Ex. D, El Cajon Zoning Ordinance § 17.60.040(Y).) On December 21, 1998, Plaintiff AirTouch Cellular ("AirTouch" or "Plaintiff") filed with the City Application No. 1773 for a conditional use permit ("CUP") to construct and maintain wireless communication facilities on top of and adjacent to a water tower owned by the Padre Dam Municipal Water District. (Administrative Record ("AR"), Ex. 57.) The water tower is in the Fletcher Hills area of the City in an "R-S-9-H" (Residential Suburban, 9000 sq. ft.) zone. (AR at Ex. 47, 499.) AirTouch sought to build an unmanned facility with: (1) 30 antennas ranging in size from "1'x2'x4'" (id. at 501) (the Court takes this to mean these 30 antennas range in size from 1 foot to 4 feet); (2) six omni-directional antennas ranging in height from two feet to six feet; (3) two dish antennas ranging in size from three feet to seven feet in diameter; and (4) a 12 feet by 30 feet (360 square feet) equipment building. (Id. at 501.) Six existing antennas installed by Nextel Communications, a competitor of AirTouch, were already on the site. (Id.) There was also a 200 square foot Nextel equipment room on the property at the time of AirTouch's application. (Id. at 500.)

In El Cajon, a conditional use permit may be granted by the Planning Commission ("PC") (RJN, Ex. D, § 17.70.040(A)), which must thereafter adopt a resolution stating the facts and findings supporting its decision. (Id. at § 17.70.070.) Accordingly, the Director of Community Redevelopment set AirTouch's application for a CUP for public hearing before the PC on February 22, 1999. (AR, Ex. 53 & 55.) Prior to the hearing, the PC was sent a number of letters from residents near the site objecting to the CUP on grounds including visual blight, safety, lowering of market value for properties near the site, noise, traffic of workers on site, and privacy. (AR, Ex. 50.) Also, PC Staff prepared for the February 22 meeting a Staff Report and Recommendation ("Staff R & R"). (AR, Ex. 47.) That report recommended that the PC grant CUP 1773 subject to conditions such as color of antennas and equipment, size of air conditioning unit, and lighting on property. (Id. at 505-06.) It also found that the visual impact would be "minimal,"*fn1 that regarding electromagnetic fields and radio frequency radiation, the City could do no more than require AirTouch to comply with Federal health and safety standards, and that nothing had been discovered to suggest the project would be incompatible with surrounding areas. (Id. at 503.) The Staff report also indicated that it had received four telephone calls objecting to the project. (Id. at 504.)

On March 28, 1999, two homeowners mailed to the PC a petition signed by 212 residents of Fletcher Hills objecting to AirTouch's application. (AR, Ex. 44.) At the April 5 hearing, residents of Fletcher Hills again spoke in opposition to CUP 1773.(Id.) Wagner again testified. (Id. at 130, 135.) She stated that AirTouch had offered a landscaping and/or fencing allowance to neighbors and stated that construction of the project would probably last eight weeks. (Id. at 131, 135.) In addition, the PC Staff prepared another Staff Report dated April 5, 1999, which again recommended approval of AirTouch's application. (AR, Ex. 21.)

On April 19, 1999, there were further proceedings before the PC regarding CUP 1773. (AR, Ex. 20.) The PC voted to approve CUP 1773 and adopt Resolution No. 9263. (Id. at 106; AR, Ex. 41 at 456.) Resolution 9263 adopted the PC Staff report, and AirTouch's application was granted subject to the restrictions/conditions recommended by the report. (AR, Ex. 41.) The decision of the PC granting or denying a permit is final and conclusive unless a written request for review is filed by a member of the City Council (including the Mayor). (Id. at 17.70.090.) In case of such a request, the CUP is stayed pending a hearing. (Id.)

On April 25, 1999, Mayor Mark Lewis sent a letter to the City Clerk timely requesting a review of PC Resolution No. 9263 granting CUP 1773. (AR, Ex. 14.) Pursuant to the City's zoning ordinances, the PC's entire file was forwarded to the City Council. (RJN, Ex. D, § 17.70.100; see also AR, Ex. 4.) After a public hearing, the City Council must approve, modify or disapprove of the PC's decision by adopting a resolution within forty days of the hearing. (RJN, Ex. D, §§ 17.70.090 & 17.70.110-30.) The resolution must state findings supporting its decision. (Id. at § 17.70.130.) The resolutiony must be mailed to the interested parties within ten days of the adoption of the resolution. (id. at § 17.70.150.)

In this case, a public hearing before the City Council was set for May 25, 1999. (AR, Ex. 10.) When the May 25 meeting was opened for public comment, a spokesperson for the Fletcher Hills Highlands Homeowner's Association spoke first, again raising issues including visual blight, noise problem, traffic of workmen, health concerns regarding electromagnetic fields and radio frequency radiation, and diminished property values. (Id. at 11-15.) Two other homeowners then spoke, raising similar concerns. (Id. at 16-21.)

Next, Wagner spoke on AirTouch's behalf, discussing alternative sites which had been considered but were rejected for various reasons. (Id. at 22-24.) A senior engineer for AirTouch then addressed electromagnetic emissions, noise abatement, and the availability of other sites. (Id. at 24-28.) Another AirTouch employee followed. (Id. at 29-30.) A number of area photographs were part of the record and analyzed by the City Council.

After some brief further comments by various person, the City Council voted to disapprove PC Resolution 9263 which had granted CUP 1773. (Id. at 32.) The City Council voted to adopt Resolution 77-99, which denied CUP 1773 on seven grounds, summarized here: (1) there is already an existing wireless communication facility on the water tank requiring periodic maintenance and repairs; (2) the PC had expressed concern that there might be "over-intensification" of wireless communication facilities in one location and the property is surrounded by single family homes which are "inconsistent with wireless communication facilities absent appropriate conditions;" (3) it is preferable to locate wireless communications facilities in commercial zones whenever possible; (4) CUP 1773 would increase the number of antennae on the site seven-fold and double the number of equipment building facilities; (5) additional wireless communications facilities would cause "over-intensification" of such facilities and challenge the "integrity" of the neighborhood, "especially where alternative sites for such facilities should be available," and the detriment and additional expenses to be suffered by AirTouch is "far outweighed by the avoidance of the visual and aesthetic impacts" to the neighborhood; (6) additional wireless communication facilities would adversely affect the property values of surrounding residences, and potentially cause problems including increased noise, a change in the "natural aesthetics," create obtrusive visual impacts, and safety and security problems; (7) any discrimination between Nextel and AirTouch is reasonable under the circumstances given the fact that AirTouch is not being denied the opportunity to locate facilities on alternative sites. (AR, Ex. 5, 39-41.)

On August 6, 1999, counsel for the city mailed AirTouch and its attorneys a copy of Resolution No. 77-99. (Id. at 38.) Generally, under the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7) (Supp. III 1997) (the "Act" or the "Telecommunications Act"), a person adversely affected by a final action of a state or local government may file an action in "any court of competent jurisdiction" within thirty days of the final action. 47 U.S.C. § 332(c)(7)(B)(v) (Supp. III 1997). However, the City's letter confirmed a tolling agreement between the parties that AirTouch would have thirty-five days from the date of the correspondence to file an action in federal court. (Id.) On August 26, 1999, AirTouch timely filed the instant action in the United States District Court for the Southern District of California. Plaintiffs complaint sets forth eight claims for relief: (1) Telecommunications Act of 1996; (2) Communications Act of 1934; (3) preemption by the Communications Act of 1934 and the FCC Regulatory Scheme; (4) unconstitutional denial of substantive due process and equal protection; (5) taking of private property without payment of just compensation; (6) violation of the Civil Rights Act, 42 U.S.C. § 1983 et seq.; (7) administrative mandamus under California Code of Civil Procedure § 1094.5; and (8) declaratory relief.

AirTouch filed its Motion for Summary Judgment re: First and Sixth Claims for Relief ("Plaintiff's Motion") on December 27, 1999. Defendants filed their Motion for Summary Judgment or in the Alternative Summary Adjudication ("Defendants' Motion") on December 23, 1999.

III. Burden of Proof

A. Summary Judgment Generally

Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). One of the principal purposes of the rule is to dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In considering a motion for summary judgment, the court must examine all the evidence in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

If a court is unable to render summary judgment upon an entire case and finds that a trial is necessary, it shall if practicable grant summary adjudication for any issues as to which, standing alone, summary judgment would be appropriate. See Fed.R.Civ.P. 56(d); see also California v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998); cert. denied, 525 U.S. 822, 119 S.Ct. 64, 142 L.Ed.2d 51 (1998).

B. Substantial Evidence Standard

In this motion, the Court is called upon to determine whether the City Council's denial of CUP 1773 was "supported by substantial evidence." See 47 U.S.C. § 332(c)(7)(B)(iii) (Supp. III 1997). The standard of law and burden of proof on this claim is discussed below in section IV.B.1.

IV. First Claim for Relief: The Telecommunications Act of 1996

A. Background

The Telecommunications Act was an "overhaul of the federal regulation of communications companies." Cellular Tel. Co. v. Oyster Bay, 166 F.3d 490, 492-93 (2d Cir. 1999). It was designed:

to provide for a pro-competitive, de-regulatory national policy framework designed to accelerate rapidly private sector deployment of advanced technologies and services . . . by opening all telecommunications markets to competition. . . .

Id. at 493 (quoting H.R.Conf.Rep. No. 104-458, at 206 (1996)). The Act was intended to promote competition by limiting the ability of local authorities to regulate and control the expansion of telecommunications technologies. Omnipoint Communications, Inc. v. Scranton, 36 F. Supp.2d 222, 227 (M.D.Pa. 1999). For example, under the Act, courts review telecommunication zoning denials more closely than standard zoning decisions. Oyster Bay, 166 F.3d at 493.

The Act added three provisions of law at issue in this case. The first and second provisions provide:

The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof —
(I) shall not unreasonably discriminate among providers of functionally equivalent services; and
(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.

47 U.S.C. § 332(c)(7)(B)(i)(I) & (II) (Supp. III). AirTouch's first two claims under the Act are (1) that the City Council unreasonably discriminated against it by granting Nextel the right to have a cellular communications station on top of the Fletcher Hills water tower and (2) that the City's decision has the effect of prohibiting personal wireless services.

AirTouch's third claim under the Telecommunications Act arises under the following provision:

Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by ...

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