The opinion of the court was delivered by: Honorable James V. Selna United States District Judge
ORDER OF PRELIMINARY INJUNCTION
The motion of Plaintiff, NEWPATH NETWORKS, LLC ("Plaintiff" or "NewPath"), for Preliminary Injunction came on for hearing before this Court on February 2, 2009, Julian K. Quattlebaum, Esq., and Charles McLurkin, Esq., appearing for Plaintiff. Defendant, City of Irvine, California and City Council of the City of Irvine, California (collectively "City" or "Defendant") did not oppose the motion.
After consideration of the briefs and arguments of counsel, and all matters presented to the Court, and for good cause shown, the Court grants the motion, in part, on the merits and makes the following FINDINGS:
1. Plaintiff is likely to succeed on its claims that Defendants' actions result in the impairment of Plaintiff's state franchise on the ground that Cal. Pub. Util. Code §§ 7901 and 7901.1 expressly limit municipal authority over telephone lines, as defined by applicable state law, to the reasonable control of the time, place, and manner in which roads, highways, and waterways may be accessed.
2. Plaintiff also is likely to succeed on its claims that Defendants' actions are preempted by the constitution and laws of the State of California, specifically Cal. Const. art. XII, § 8 and Cal. Pub. Util. Code §§ 701 and 1001, in that once the California Public Utilities Commission, by the issuance of a Certificate of Public Convenience and Necessity ("CPCN") authorizing construction, has made the required determination as to the necessity of such construction, not only is a further conditional use permit ("CUP") or other zoning permit redundant, but also a municipality is prohibited from requiring one.
3. As a direct and proximate cause of the Defendant's unlawful actions, Plaintiff's goodwill and reputation have suffered. As a result, Plaintiff has had difficulty securing financing and such harm qualifies as irreparable injury.
Based upon the above FINDINGS, the Court HEREBY ORDERS that:
1. Defendants are hereby ENJOINED from requiring NewPath to obtain conditional use or other zoning permits as a condition for obtaining any required construction permits for its Distributed Antenna System ("DAS") facilities.
2. Defendants are hereby further ENJOINED from using any moratorium process to unduly delay or discourage NewPath from constructing its DAS facilities.
3. Consistent with the terms of this PRELIMINARY INJUNCTION, Defendants are EJNOINED from applying any other procedures to NewPath than those it would to any other construction permit applicant as a matter of course.