The opinion of the court was delivered by: Brewster, Senior District Judge.
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.
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.)
AirTouch's third claim under the Telecommunications Act arises under
the following provision:
47 U.S.C. § 332(c)(7)(B)(iii) (Supp. III 1997).
A claim under § 332(c)(7)(B)(iii) is reviewed under the substantial
evidence standard. In contrast, in a claim under § 332(c)(7)(B)(i)(I)
or (II), there is no deference to local findings. See Cellular Tel. Co.
v. Zoning Rd. of Adjustment of
Ho-Ho-Kus, 197 F.3d 64, 71 (3d Cir. 1999). The administrative record is
reviewed de novo. See Town of Amherst, N.H. v. Omnipoint Communications
Enter. Inc., 173 F.3d 9, 16 n. 7 (1st Cir. 1999). Furthermore, in §
332(c)(7)(B)(iii) inquiries, the reviewing court may not go beyond the
administrative record in making its decision. Id. However, in a claim
alleging discrimination among carriers or prohibition of personal
wireless services, outside evidence may be considered. Id.
B. Plaintiffs Claims.
There are cross-motions for summary judgment pending on the First Claim
for Relief under the Telecommunications Act of 1996.
1. Does Substantial Evidence Support the City Council's Decision?
Section 332(c)(7)(B)(iii) requires that the government's decision
denying a request to construct personal wireless service facilities be in
writing and be supported by substantial evidence.
47 U.S.C. § 332(c)(7)(B)(iii) (Supp. III 1997).
a. Legal Standard — Substantial Evidence
"Substantial evidence `does not mean a large or considerable amount of
evidence, but rather such evidence as a reasonable mind might accept as
adequate to support a conclusion.'" Ho-Ho-Kus, 197 F.3d at 71 (quoting
Pierce v. Underwood, 487 U.S. 552, 108 S.Ct. 2541, 101 L.Ed.2d 490
(1988)). Put another way, "[s]ubstantial evidence is more than a
scintilla of evidence but less than a preponderance." Scranton, 36 F.
Supp.2d at 228 (citation omitted). The court must review the entire
record as a whole in making its determination, including all evidence
unfavorable to the agency's position. See Omnipoint Corp. v. Zoning
Hearing Rd. of Pine Grove Tp., 181 F.3d 403, 408 (3d Cir. 1999);
Ho-Ho-Kus, 197 F.3d at 71.
The substantial evidence standard must be applied using common sense
standards of reasonableness. The Court is not bound by the substantial
evidence standard to accept as substantial evidence impossible,
incredible, unfeasible, or implausible testimony, even if it was not
In this case, the Court finds from the review of the administrative
record that there are very few, if any, factual disputes between the
parties. AirTouch supports its application on the grounds that it needs an
additional site for its telecommunications service and that this site is
the best adapted at the least expense to applicant: some alternatives are
potentially available but they would be more expensive to develop.
Defendants essentially do not contest the applicant's prima facie case.
Defendants, on their side, raise issues of aesthetic concerns to the
affected residents and some health and safety issues. As to these
arguments, applicant offers suggestions for mitigation and assurances of
conscientious management, and once again repeats the contention that on
balance, the Defendants should find the ultimate "good" outweighs the
Because the Defendants' case is essentially unrefuted by Plaintiff, and
because it appears to the Court to be "such evidence as a reasonable mind
might accept as adequate to support a conclusion," the Court is
comfortable with its ability to evaluate the substantiality of the
evidence based upon a totality of the administrative record.
b. Burden of Proof
Here, AirTouch has tried to demonstrate that other sites are not
reasonably available. (Tifft Decl. ¶ 11, 32.) However, as discussed
above, AirTouch's own witnesses testified at the administrative hearings
only that other sites would present challenges and be less than ideal.
Those witnesses did not say that those sites were entirely unfeasible.
(See, e.g., AR at 21-22, 27-28.)
Accordingly, the Court finds that the City has met its burden of
showing that no material issue of fact exists on this claim. The City's
motion for summary judgment regarding this issue is therefore granted and
AirTouch's is denied.
The Court hereby enters summary judgment in favor of the City and
against AirTouch on the entirety of the First Claim for relief under the
AirTouch alleges in its second claim for relief that the City violated
47 U.S.C. § 332(c)(3)(A), which provides in relevant part that:
47 U.S.C. § 332(c)(3)(A) (Supp. III 1997). AirTouch argues that the
City's denial of its application constitutes an "impermissible barrier to
entry." (Compl. at ¶ 43.) However, as discussed above,
47 U.S.C. § 332(c)(7)(A) of the Telecommunications Act mandates
47 U.S.C. § 332(c)(7)(A) (Supp. III 1997). Thus, AirTouch's
Sprint Spectrum L.P. v. Medina, 924 F. Supp. 1036, 1040 (W.D.Wash.
1996). The City's decision in Resolution No. 77-99 does not "regulate the
entry" of AirTouch within the meaning of § 332(c)(3)(A). Defendants'
Motion for Summary Judgment on the Second Claim for Relief is therefore
AirTouch alleges in its third claim for relief that the City's actions
in denying AirTouch the CUP were in violation of, and preempted by,
47 U.S.C. § 151, 303,
and 332(a). Section 151 creates the Federal Commerce Commission ("FCC")
and provides in part that the FCC shall make available . . . a rapid,
efficient, Nation-wide, and world-wide wire and radio communication
service with adequate facilities at reasonable charges. . . ."
47 U.S.C. § 151 (1994). Section 303 vests the FCC with certain powers
and duties including the right to make regulations. 47 U.S.C. § 303
(1994). Section 332(a) provides that the FCC shall consider a variety of
enumerated factors in regulating mobile services. 47 U.S.C. § 332(a)
(Supp. III 1994).
AirTouch argues that the CUP denial "frustrates the establishment of a
nationwide cellular service network as intended by the Communications Act
and the FCC rules . . . because it effectively prohibits, unreasonably
restricts and improperly interferes with the installation of a cellular
communication facility. . . ." (Complaint at ¶ 148.) In support of
its argument it cites two cases: 360 Communications Co. v. Bd. of
Supervisors of Albembarle Co., 50 F. Supp.2d 551 (W.D.Va. 1999) and
Paging Inc. v. Bd. of Zoning Appeals for County of Montgomery,
957 F. Supp. 805 (W.D.Va. 1997). However, both of these cases find
preemption only because local zoning authorities acted in such a way as to
violate provisions of the Telecommunications Act. See 360 Communications
Co., 50 F. Supp.2d at 562 (holding that in the "limited circumstances"
when local zoning authorities' actions prohibit personal wireless
service, the Act preempts local zoning law); Paging, Inc., 957 F. Supp.
at 808 (noting that under "limited circumstances" such as when the zoning
authority violated § 332(c)(7)(B)(i)(II), "the federal interest in
wireless communication takes priority over state zoning authority").
. . . it is clear that the [Telecommunications Act]
was not intended to completely preempt the authority
of local governments to regulate, to some extent, the
placement and construction of cellular towers.
Historically, local development and zoning powers have
yielded to federal interests, via the Supremacy Clause
. . . Here there is no express preemption and no
pervasive regulatory scheme (as to facility location
and characteristics); nor can it be fairly argued that
compliance with both federal and state law is an
AT & T Wireless Serv. of Fla. v. Orange County, 982 F. Supp. 856, 861
Here, as the Court held above, Defendants have shown that the City did
not violate any provision of the Telecommunications Act. The City's
actions were not preempted by federal law; rather, they were in accord
with federal law. Thus, the City's Motion for Summary Judgment on the
Third Claim for Relief is granted.
VII. Fourth Claim for Relief: Unconstitutional
Denial of Substantive Due
Process and Equal Protection
Next, the City moves to dismiss AirTouch's Fourth Claim for Relief for
denial of substantive due process and equal protection.
A. Equal Protection
The "Equal Protection Clause of the Fourteenth Amendment commands that
no State shall `deny to any person within its jurisdiction the equal
protection of the laws,' which is essentially a direction that all persons
similarly situated should be treated alike." City of Cleburne, Tex. v.
Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87
L.Ed.2d 313 (1985); Shaw v. Reno, 509 U.S. 630, 113 S.Ct. 2816, 125
L.Ed.2d 511 (1993). "The guarantee of equal protection [under the Fifth
Amendment] is not a source of substantive rights or liberties, but rather
a right to be free from invidious discrimination in statutory
classifications and other governmental activity." Harris v. McRae,
448 U.S. 297, 322, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980) (citations
AirTouch argues the City violated the Equal Protection Clause by
treating it differently than Nextel by granting Nextel's application and
denying AirTouch's. It argues that AirTouch and Nextel are similarly
situated. However, generally, "as long as the lawmakers have a `rational
basis' for creating a classification, and the classification does not
affect a `suspect class,' the law passes the equal protection test."
Watson v. Proctor, 161 F.3d 593 (9th Cir. 1998).
AirTouch has failed to show, and indeed it does not argue, that it is a
member of a suspect class. Therefore, the City need only show that there
was a rational basis for its treatment of AirTouch. The Court finds that
the City has offered ample proof to show that its decision had a rational
basis. Its treatment of AirTouch may have led to a different result than
its treatment of Nextel, but the circumstances were different when
Nextel's application was granted in 1997 and AirTouch's was denied two
years later in 1999. The two applications were not on file at the same
time and they never competed with each other. As discussed above in
section IV. B.2, the City was concerned that AirTouch's presence would
increase existing problems at the site as well as present new
Accordingly, the City is entitled to summary judgment in its favor on
AirTouch's equal protection claim.
B. Substantive Due Process
Similarly, AirTouch argues that the City has violated its substantive
due process rights by denying its CUP in a manner that "was unfair,
arbitrary and capricious and lacking in a rational basis." (Compl. at
¶ 53.) To plead a substantive due process violation, the plaintiff
must show that the defendant's actions were "`clearly arbitrary and
unreasonable, having no substantial relation to the public health,
safety, morals, or general welfare.'" Tyson v. City of Sunnyvale,
920 F. Supp. 1054, 1062 (N.D.Cal. 1996) (quoting Sinaloa Lake Owners
Ass'n v. Simi Valley, 882 F.2d 1398, 1407 (9th Cir. 1989)). "`In zoning
dispute cases, the principle of substantive due process assures property
owners of the right to be free from arbitrary or irrational zoning
decisions.'" Id. (quoting Arrogo Vista Partners v. County of Santa
Barbara, 732 F. Supp. 1046, 1053 (C.D.Cal. 1990)). Moreover, a
substantive due process violation may occur if the zoning authorities are
"motivated by `bias, bad faith, improper motive, racial animus, or the
existence of partisan political or personal reasons.'" Omnipoint
Communications v. Penn Forest Tp., 42 F. Supp.2d 493 (M.D.Pa. 1999)
In the instant case, AirTouch does not allege, or offer evidence which
would suggest, that any member of the City Council acted with improper
motive or animus. AirTouch does argue that the City's decision was
arbitrary and capricious. However, as discussed above, substantial
evidence in the record supports the City's decision. The record as a
whole, including the transcript of the May 25, 1999 hearing before the
City Council, reveals that the City acted with careful consideration.
Accordingly, the City's Motion for Summary Judgment on Plaintiff's Fourth
Claim for Relief is granted.
VIII. Fifth Claim for Relief: Taking
of Private Property Without
Plaintiffs fifth claim for relief arises under the Fifth and Fourteenth
Amendments: AirTouch alleges the taking of private property without just
compensation. AirTouch argues that it purchased FCC licenses and thus has
the lawful right to access certain radio bands. (Compl. at ¶ 57.) It
alleges that the City has denied it "all economically viable uses of its
FCC license within the City by prohibiting AirTouch from obtaining a site
needed to establish coverage for that area." (Id. at ¶ 58.)
There is no doubt that the Fifth Amendment disallows the taking of
private property without just compensation. Moore v. Costa Mesa,
886 F.2d 260, 262 (9th Cir. 1989). Nevertheless, "a regulation that
adversely affects property values does not constitute a taking unless it
destroys a major portion of the property's value." Id.
AirTouch and the City disagree on whether an FCC license constitutes
property within the meaning of the Fifth Amendment. AirTouch relies upon
MLQ Investors, L.P. v. Pacific Quadracasting, Inc., 146 F.3d 746, 749
(9th Cir. 1998), to argue that its FCC license is property in reference
to the Fifth Amendment. Conversely, the City argues that the issuance of
a license by the FCC does not create property which would be subject to
the Fifth Amendment, citing to In re Ridgely Communications, Inc.,
139 B.R. 374, 379 (Bankr.D.Md. 1992).
The Court finds neither of these cases to be precisely on point.
However, the Court declines to decide this apparently unsettled
question, because even if Plaintiff's FCC license were to be considered
property for the purposes of the Fifth Amendment, the City has not
destroyed "a major portion" of the license's value. Moore v. City of
Costa Mesa, 886 F.2d at 262. Plaintiff has two other wireless
communication towers within the City (AR, Ex. 1 at 23), Plaintiff has
rejected a site because it would be too "complex" to build upon (AR, Ex.
1 at 22), and Plaintiff's own witnesses have not testified that other
sites would be entirely unavailable (See, e.g., AR at 21-22, 27-28). In
other words, Plaintiff's FCC license is being used within the City
through the two existing towers, and may well be used more if Plaintiff
applies at additional sites. Plaintiff has not proven to the satisfaction
of this Court that the value of its FCC license has decreased. See United
States v. 429.59 Acres of Land, 612 F.2d 459, 462 (9th Cir. 1980)
(holding that in condemnation proceedings, the landowner has the burden
of establishing the value of the property).
For these reasons, the Court grants the City's motion for summary
judgment on the fifth claim for relief.
IX. Sixth Claim for Relief: Violation
of the Civil Rights Act, 42 U.S.C.
§ 1983 et seq.
The parties each seek summary judgment on AirTouch's Sixth Claim for
Relief under the Civil Rights Act, 42 U.S.C. § 1983. Section 1983
provides in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for
42 U.S.C. § 1983 (1994).
Section 1983 "is not itself a source of substantive rights, but merely
provides a method for vindicating federal rights elsewhere conferred."
Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865, 104 L.Ed.2d 443
(1989) (internal citations omitted); Crumpton v. Gates, 947 F.2d 1418,
1420 (9th Cir. 1991). Section 1983 imposes two essential proof
requirements upon a claimant: (1) that a person acting under color of
state law committed the conduct at issue, and (2) that the conduct
deprived the claimant of some right, privilege, or immunity protected by
the Constitution or laws of the United States. Parratt v. Taylor,
451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on
other grounds by Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662,
88 L.Ed.2d 662 (1986); see also Haygood v. Younger, 769 F.2d 1350, 1354
(9th Cir. 1985) (en banc).
AirTouch argues that the City violated section 1983 by depriving
AirTouch of its rights under the Telecommunications Act. However, as
discussed above, the City has not violated the legal rights of AirTouch
under that Act. Thus, the City has shown that there is no material issue
of fact on this claim for relief because the second prong of the Parratt
test has not been met. That is, AirTouch has failed to show that the
City's conduct deprived it of some right, privilege, or immunity
protected by the Constitution or laws of the United
States. Accordingly, the City's motion for summary judgment on the Sixth
Claim for Relief is granted and AirTouch's motion for summary judgment is
X. Seventh and Eighth Claims for
Relief: Administrative Mandamus
and Declaratory Relief
AirTouch also seeks a mandamus under state law and declaratory relief.
However, these claims are moot in view of the Court's ruling above. See,
e.g., Bodinson Mfg. Co. v. Cal. Employment Comm'n, 17 Cal.2d 321,
109 P.2d 935, 940 (1941) (noting that mandamus "will be used to correct
acts and decisions of administrative agencies which are in violation of
the law, where no other adequate remedy is provided"). Accordingly,
Plaintiff's seventh and eighth claims for relief are denied with
For all of the foregoing reasons, IT IS HEREBY ORDERED that:
(1) Defendants' Motion for Summary Judgment and/or for Summary
Adjudication is GRANTED in its entirety; and
(2) Plaintiff's Motion for Summary Judgment re: First and Sixth Claims
for Relief is DENIED.
Judgment is entered in favor of the Defendants and against Plaintiff.
IT IS SO ORDERED.