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Sprint PCS Assets, L.L.C. v. City of Palos Verdes Estates

October 14, 2009

SPRINT PCS ASSETS, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY, WHOLLY-OWNED BY SPRINT TELEPHONY PCS, LP, A DELAWARE LIMITED PARTNERSHIP, PLAINTIFF-APPELLEE,
v.
CITY OF PALOS VERDES ESTATES, A CALIFORNIA MUNICIPALITY; CITY COUNCIL OF THE CITY OF PALOS VERDES ESTATES, ITS GOVERNING BODY; JOSEPH SHERWOOD, IN HIS OFFICIAL CAPACITY AS MAYOR PRO TEM OF THE CITY OF PALOS VERDES ESTATES; JOHN FLOOD, IN HIS OFFICIAL CAPACITY AS COUNCILMEMBER OF THE CITY OF PALOS VERDES ESTATES; ROSEMARY HUMPHREY, IN HER OFFICIAL CAPACITY AS COUNCILMEMBER OF THE CITY OF PALOS VERDES ESTATES; DWIGHT ABBOTT, IN HIS OFFICIAL CAPACITY AS COUNCILMEMBER OF THE CITY OF PALOS VERDES ESTATES; JAMES F. GOODHART, IN HIS OFFICIAL CAPACITY AS COUNCILMEMBER OF THE CITY OF PALOS VERDES ESTATES, DEFENDANTS-APPELLANTS.



Appeal from the United States District Court for the Central District of California, Alicemarie H. Stotler, District Judge, Presiding, D.C. No. CV-03-00825-AHS.

The opinion of the court was delivered by: Wardlaw, Circuit Judge

FOR PUBLICATION

OPINION

Argued and Submitted July 6, 2009 -- Pasadena, California

Before: Barry G. Silverman, Kim McLane Wardlaw, and Jay S. Bybee, Circuit Judges.

The City of Palos Verdes Estates ("City") appeals the grant of summary judgment in favor of Sprint PCS Assets, L.L.C. ("Sprint"). We must decide whether the district court erred in concluding that the City violated the Telecommunications Act of 1996 ("TCA"), Pub. L. No. 104-104, 110 Stat. 56 (codified as amended in various sections of U.S.C. titles 15, 18, and 47), when it denied Sprint permission to construct two wireless telecommunications facilities in the City's public rights-of-way. Specifically, we must decide (1) whether the City's denial is supported by substantial evidence, as required by 47 U.S.C. § 332(c)(7)(B)(iii), and (2) whether the City's denial constitutes a prohibition on the provision of wireless service in violation of 47 U.S.C. §§ 253(a) and 332(c)(7)(B)(i)(II). Because the City's denial is supported by substantial evidence, and because disputed issues of material fact preclude a finding that the decision amounted to a prohibition on the provision of wireless service, we reverse and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

The City is a planned community, about a quarter of which consists of public rights-of-way that were designed not only to serve the City's transportation needs, but also to contribute to its aesthetic appeal. In 2002 and 2003, Sprint applied for permits to construct wireless telecommunications facilities ("WCF") in the City's public rights-of-way. The City granted eight permit applications but denied two others, which are at issue in this appeal. One of the proposed WCFs would be constructed on Via Azalea, a narrow residential street, and the other would be constructed on Via Valmonte, one of the four main entrances to the City. Sprint acknowledged that it already served four thousand customers in the City with its existing network but stated that the proposed WCFs were nonetheless needed to replace its existing infrastructure.

A City ordinance ("Ordinance") provides that WCF permit applications may be denied for "adverse aesthetic impacts arising from the proposed time, place, and manner of use of the public property." Palos Verdes Estates, Cal., Ordinances ch. 18.55.040(B)(1). Under the Ordinance, the City's Public Works Director ("Director") denied Sprint's WCF permit applications, concluding that the proposed WCFs were not in keeping with the City's aesthetics. The City Planning Commission affirmed the Director's decision in a unanimous vote.

Sprint appealed to the City Council ("Council"), which received into evidence a written staff report that detailed the potential aesthetic impact of the proposed WCFs and summarized the results of a "drive test," which confirmed that cellular service from Sprint was already available in relevant locations in the City. The Council also heard public comments and a presentation from Sprint's representatives. The Council issued a resolution affirming the denial of Sprint's permit applications. It concluded that a WCF on Via Azalea would disrupt the residential ambiance of the neighborhood and that a WCF on Via Valmonte would detract from the natural beauty that was valued at that main entrance to the City.

Denied permits by the Director, the Commission, and the Council, Sprint took its case to federal court, seeking a declaration that the City's decision violated various provisions of the TCA. The district court concluded that the City's decision was not supported by substantial evidence and thus violated 47 U.S.C. § 332(c)(7)(B)(iii). This determination was premised on a legal conclusion that California law prohibits the City from basing its decision on aesthetic considerations. The district court also concluded that the City violated 47 U.S.C. §§ 253 and 332(c)(7)(B)(i)(II) by unlawfully prohibiting the provision of telecommunications service, finding that the City had prevented Sprint from closing a significant gap in its coverage. The City timely appeals.

II. JURISDICTION AND STANDARD OF REVIEW

The district court exercised jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291. "We review summary judgment de novo." Nelson v. City of Davis, 571 F.3d 924, 927 (9th Cir. 2009) (citation omitted). Summary judgment is appropriate only if the pleadings, the discovery, disclosure materials on file, and affidavits show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). All justifiable factual inferences must be drawn in the City's favor, and we must reverse the grant of summary judgment if any rational trier of fact could resolve a material factual issue in the City's favor. See Nelson, 571 F.3d at 927.

III. DISCUSSION

The tension between technological advancement and community aesthetics is nothing new. In an 1889 book that would become a classic in city planning ...


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