The opinion of the court was delivered by: PHYLLIS HAMILTON, District Judge
ORDER GRANTING SUMMARY SUMMARY JUDGMENT IN PART AND DENYING
SUMMARY JUDGMENT IN PART
The parties' cross-motions for summary judgment came on for
hearing on November 2, 2005 before this court. Plaintiff Bay Area
Cellular Telephone, d/b/a AT & T Wireless ("ATTW") appeared
through its counsel, Marc E. Miller, and defendants the City and
County of San Francisco et al. ("the City") appeared through
their counsel, William K. Sanders. Having read all the papers
submitted and carefully considered the relevant legal authority,
the court hereby GRANTS IN PART and DENIES IN PART plaintiff's
motion for summary judgment, and GRANTS IN PART and DENIES IN
PART defendants' motion for summary judgment, for the reasons
stated at the hearing, and as follows.
ATTW provides wireless telecommunication services in the Bay
Area. On April 23, 2002, ATTW applied to the City for a
conditional use permit ("CUP") to install a wireless facility
atop a commercial building located near the intersection of 10th
Ave. and Geary Boulevard in San Francisco. See Declaration of
Chung-Han Lee in Support of ATTW's Motion for Summary Judgment
("Lee Decl.") Ex. 1. ATTW claims it needs this installation to better serve its customers in the Richmond district.
The San Francisco Planning Commission held a hearing on ATTW's
application, and conditionally approved it on July 17, 2003. Lee
Decl. Ex. 5 at 066-72. A month later, on August 15, 2003, local
resident Betty Chiao filed an appeal of the Planning Commission's
decision with the San Francisco Board of Supervisors (the
"Board"). Lee Decl. Ex. 6 at 084-87. The stated grounds for the
appeal were that "the proposed facility is unnecessary,
undesirable, and incompatible with the existing character of the
neighborhood." Id. at 086.
On September 16, 2003, the Board held a public hearing on the
appeal of the Planning Commission's decision. Lee Decl. Ex. 7. At
the hearing, a number of community residents testified to varying
degrees that ATTW's proposed facility is undesirable, and
unnecessary. Id. Many community residents also submitted
evidence that wireless coverage in the area is adequate.
AR*fn1 040-45, 019-26, 047-51, 108-118. ATTW, for its part,
submitted the testimony of a Planning Commission representative,
as well as technical engineers, to address the issues of
necessity and adequate coverage. Lee Decl. Ex. 7 at 055-65.
After hearing the evidence before it, the Board unanimously
voted to deny ATTW the CUP. Lee Decl. Ex. 8. The Board then
adopted written findings and issued a written denial on September
30, 2003. Lee Decl. Exs. 9-10.
As a result of the Board's decision, ATTW claims the City
violated section 332(c)(7) of the Telecommunications Act of 1996
("TCA"). See 47 U.S.C. § 151 et seq. Specifically, ATTW asserts
the following four causes of action:*fn2 (1) that the Board
violated the substantial evidence requirement of the TCA; (2)
that the Board improperly based its decision on the environmental
effects of radio frequency emissions; (3) that the Board
unreasonably discriminated against ATTW; and (4) that the Board's
decision improperly prohibited the provision of personal wireless services.
Both parties now move for summary judgment on all four
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.
Under the TCA, a local government's decision to deny a request
to construct a wireless facility must be based upon "substantial
evidence." 47 U.S.C. § 332(c)(7)(B)(iii). A city's decision is
considered supported by substantial evidence if the record
contains "such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion." MetroPCS, Inc. v.
City and County of San Francisco, 400 F.3d 715, 725 (9th Cir.
2005); Telespectrum v. Public Service Commission, 227 F.3d 414,
423 (6th Cir. 2000). This requires "more than a scintilla of
evidence but less than a preponderance." MetroPCS, F.3d at 725.
In conducting such a review, the court must examine the entire
record, including evidence unfavorable to the city. Id.
The parties' arguments regarding the substantial evidence
requirement are twofold: first, the partes raise arguments as to
the proper scope of applicable laws that the Board was required
to consider. Specifically, ATTW claims that the Board was
required to take the Wireless Telecommunications Services
Facilities Siting Guidelines ("WTS Guidelines"), adopted by the Planning Commission in 1996, into account. The
City maintains that only the Planning Code controls. Second, the
parties dispute whether the actual evidence considered by the
Board, including the public testimony by local residents, is
sufficient to satisfy the substantial evidence requirement.
1. Scope of Applicable Laws
When conducting a "substantial evidence" inquiry, "local and
state zoning laws govern the weight to be given the evidence."
MetroPCS, F.3d at 725. A city's interpretation of its own
zoning laws "is entitled to great weight and should be respected
by the court unless it is clearly erroneous or unauthorized."
Carson Harbor Village Ltd. v. City of Carson,
70 Cal. App. 4th 281, 290 (1999).
The WTS Guidelines were enacted by the Planning Commission with
the aim of providing "comprehensive policies and guidelines" for
use in evaluating applications for CUPs. See Lee Decl., Ex. 3
at 1183-84. On their face, the Guidelines do not purport to be
duly enacted laws. Rather, they are a statement of policies that
set forth the applicable standards under which the Planning
Commission is to apply the Planning Code. Id. As such, they do
not have the force of binding law.
Accordingly, there is no basis here for enlarging the scope of
the substantial evidence inquiry to include the WTS Guidelines in
addition to the Planning Code (which neither side disputes does
have the force of binding law).
2. Sufficiency of Evidence
ATTW urges the court to consider the weight of the evidence
considered by the Board. Specifically, it takes issue with the
anecdotal and personal testimony in evidence at the hearing
before the Board, and argues that in view of ATTW's technical
testimony, such anecdotal and personal testimony cannot qualify
The Ninth Circuit's MetroPCS decision considered this same
argument, and controls here. In MetroPCS, as here, the Board
had denied a CUP application on the basis of oral testimony and
numerous written petitions from local neighborhood residents,
reporting that adequate wireless coverage already existed. The Ninth Circuit
affirmed this court's holding that such evidence was substantial.
In so doing, the Ninth Circuit acknowledged that "the Board's
inquiry into this issue was not a model of thoroughness or
rigor," but taken ...