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BAY AREA CELLULAR TEL. CO. v. CITY & CTY. OF SAN FRANCISCO

November 23, 2005.

BAY AREA CELLULAR TELEPHONE COMPANY, A CALIFORNIA PARTNERSHIP, D/B/A AT & T WIRELESS, Plaintiff,
v.
THE CITY AND COUNTY OF SAN FRANCISCO, CALIFORNIA, et al., Defendants.



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.

BACKGROUND

  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 claims.*fn3

  ANALYSIS

  A. Legal Standard

  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. Substantial Evidence

  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 as substantial.

  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 ...


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