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April 24, 2003


The opinion of the court was delivered by: Phyllis J. Hamilton, United States District Judge


The parties' cross-motions for summary judgment came on for hearing on April 16, 2003 before this court, the Honorable Phyllis J. Hamilton presiding. Plaintiff MetroPCS appeared through its counsel, Martin Fineman, and defendants City and County of San Francisco et al. ("the City") appeared through its counsel, William Sanders. Having read the papers and carefully considered the relevant legal authority, the court hereby rules as follows.


MetroPCS provides wireless telecommunication services in the Bay Area. On January 15, 2002, MetroPCS applied to the City for a conditional use permit ("CUP") to build a base station at the Geary Boulevard Mall Parking Garage. Nahmanson Decl. Exh. 1. MetroPCS claims it needs this installation to better serve its customers in the Richmond district. Id.

The parking garage is located at 5200 Geary Boulevard, between 16th and 17th Avenue. MetroPCS proposed to mount six antennas on an existing light pole on the roof of the garage, with equipment cabinets built behind an existing wall. The antennas would be painted the color of the garage. Nahmanson Decl. Exh. 1; see also G642; MetroPCS Opening Br. Exh. A (photo simulations of the installation).

The San Francisco Planning Commission conditionally approved MetroPCS's application on April 18, 2002. G20-G32.*fn1 The San Francisco Board of Supervisors subsequently received protests filed by approximately 80 property owners representing 58.95% of the land area within 300 feet of the garage, a petition in opposition signed by hundreds of local residents, and an appeal of the Planning Commission's decision filed by a local resident, Robert Blum. G43-58; G-59-60, G61-G149; G209, G210-G484.

On June 17, 2002, the Board of Supervisors held a public hearing concerning MetroPCS's application.*fn2 At the hearing, a number of community members and supervisors indicated their disapproval of the application. See. e.g., Tr. 176-77, 180-83. The Board of Supervisors then voted to deny MetroPCS the CUP. G688. Those findings were then adopted in a written denial on June 24, 2002. G694-G698.

MetroPCS claims the City violated section 332(c)(7) of the Telecommunications Act of 1996, 47 U.S.C. § 151 et seq., when it denied the CUP and moves for summary judgment on their first cause of action only. The City has also moved for summary judgment on the first cause of action, claiming it acted properly.


A. Legal Standard-Summary Judgment

Summary judgment is appropriate when the evidence shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). The court will resolve all disputed issues of fact in favor of the non-moving party. Id. at 255.

B. Written Decision

A local government's decision to deny a request to construct a wireless facility must be "in writing." 47 U.S.C. § 332(c)(7)(B)(iii). MetroPCS claims as a preliminary matter that the City's denial does not meet this requirement.

Courts are split on interpretations of the "in writing" requirement. See, e.g., New Par v. City of Saginaw, 301 F.3d 390, 395 (6th Cir. 2002) (explaining the range of requirements adopted); Southwestern Bell Mobile Syst. v. Todd, 244 F.3d 51, 59 (1st Cir. 2001) (same). Some courts have held that the governing local body must issue full findings of fact and conclusions of law, see. e.g., Omnipoint Communications. Inc. v. Planning & Zoning Comm'n, 83 F. Supp.2d 306, 309 (D. Conn. 2000), while others state that merely stamping the word "DENIED" on an application is sufficient, AT&T Wireless PCS v. City Council of Virginia Beach, 155 F.3d 423, 429 (4th Cir. 1998).

In Todd, the First Circuit reviewed these precedents, and noted that "[b]oth of these approaches seem flawed." 244 F.3d at 59. On the one hand, the statutory language does not require detailed findings of fact and conclusions of law, and the court acknowledged that local governing boards are staffed by laypersons and not attorneys. On the other hand, the board must give sufficient information in its written denial to permit judicial review, and the statute requires a denial separate from the hearing record. Id. at 59-60.

Accordingly, Todd adopted a standard that "requires local boards to issue a written denial separate from the written record." 244 F.3d at 60. Furthermore, "[t]hat written denial must contain a sufficient explanation of the reasons for the permit denial to allow a reviewing court to evaluate the evidence in the record supporting those reasons." Id. (but specifically permitting a court to review the record as well). See also New Par, 301 F.3d at 395 (Sixth Circuit adopting Todd standard). The Todd standard ...

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