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T-Mobile West Corporation, A Delaware Corporation v. City of Agoura Hills

December 20, 2010

T-MOBILE WEST CORPORATION, A DELAWARE CORPORATION, PLAINTIFF,
v.
CITY OF AGOURA HILLS, A PUBLIC ENTITY ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF CALIFORNIA; AND THE CITY COUNCIL OF THE CITY OF AGOURA HILLS, DEFENDANTS.



The opinion of the court was delivered by: Judge: Hon. Dale S. Fischer

[JOINT PROPOSED] FINDINGS OF FACT AND CONCLUSIONS OF LAW

FINDINGS OF FACT

The Court finds the following facts supported by the evidence.*fn1

1. PLAINTIFF

1. Plaintiff T-Mobile West Corporation is a Delaware corporation with its principal place of business in Bellevue, Washington.

2. Plaintiff T-Mobile West Corporation is the operating entity for T-Mobile USA, Inc. in the Southern California market and, as such, uses Federal Communications Commission licenses held by related T-Mobile entities to provide commercial mobile radio services within the Southern California area. Thus, Plaintiff T-Mobile West Corporation provides personal wireless services, and therefore operates commercial mobile services, as defined by federal law, and markets them in Southern California under the name T-Mobile.

3. T-Mobile West Corporation is the successor in interest to Omnipoint Communications, Inc., for the purposes of this litigation.

2. DEFENDANTS

4. Defendant City of Agoura Hills is a public entity organized and existing under the laws of the State of California.

5. Defendant City Council of the City of Agoura Hills is the governing body of the City of Agoura Hills.

3. JURISDICTION AND VENUE

6. The Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 (federal question), 1332 (diversity), and 1337 (commerce), as well as under 47 U.S.C. § 332.

7. Venue is proper in this district under 28 U.S.C. § 1391(b) because Defendants reside in this district, and a substantial part of the events or omissions giving rise to the claims herein occurred in this district.

4. HISTORY

8. On March 7, 2007, Omnipoint Communications, Inc., T-Mobile's predecessor in interest, applied for a CUP (Case No. 07-CUP-007) to install a wireless telecommunications facility ("Facility") that would fill a significant gap in coverage in TMobile's network in the residential areas north of Thousand Oaks Boulevard and east of Lindero Canyon Road, and along a portion of Thousand Oaks Boulevard and Reyes Adobe Road in the City of Agoura Hills, California. (1:0002-A-0002-O.)*fn2 The City's CUP application form does not require that an applicant for a CUP provide an analysis of the availability or technological feasibility of alternatives to a proposed wireless telecommunications facility. (Id.)

9. The Facility will be located at 5844 Larboard Lane, on Assessor's Parcel No. 2056-015-900, on the grounds of the Lindero Canyon Middle School ("School Site"). (5:0020.)

10. Between April 2007 and October 2008, T-Mobile worked with City staff and the Las Virgenes Unified School District ("School District") to develop the flagpole design for consistency with the existing use of the property and the design of the newly remodeled school. (23:0399.)

11. When it first applied for a conditional use permit ("CUP") for a wireless facility at the school, T-Mobile proposed a 50-foot tall flag pole to support and conceal the antennas. (1:0001.)

12. Working together, T-Mobile, the school district, and City Planning and Community Development staff settled on a three-pole design, since it better fit with the look of the newly renovated campus than would artificial tree designs. (23:0400, 0408-09, 0426.)

13. Each pole would be 18 inches in diameter so as to accommodate the antennas, and the center pole would be 45-feet tall, while two 40-foot tall poles would flank the center pole. (5:0021.)

14. The Facility would include six associated ground-mounted equipment cabinets surrounded and screened from view by an eight-foot-tall masonry wall enclosure, painted to match existing buildings, and equipped with a black wrought iron lid and a corrugated steel gate. (5:0022.)

15. The equipment enclosure would be further screened by installing a new planter area on the north and west sides of the enclosure. (Id.)

16. To further minimize any visual impacts, T-Mobile proposed to locate the facility at the center of the campus, approximately 300 feet from the nearest residence. (5:0021; 29:0637 (aerial photo of location).)

17. T-Mobile's application came before the Planning Commission on February 5, 2009. (6:0055.)

18. The staff report analyzed T-Mobile's application to determine if each of the six findings required to grant a CUP could be made. (5:0022-23.)

19. Staff concluded that they could be, and recommended Planning Commission approval of the CUP, subject to the conditions set forth in a draft resolution. (5:0023.)

20. The Planning Commission continued the hearing to March 5, 2009, to receive more information on the scope of its discretion from the City Attorney's office (9:0119-20), and more information from T-Mobile regarding the need for the facility (7:0101-07; 9:0128-30).

21. At the second hearing, on March 5, 2009, T-Mobile's representative explained that most of the districts in the search ring are zoned R (Residential), and the City's Zoning Ordinance does not permit telecommunications facilities in the R zone, even as a conditional use. (11:0169.) He also explained that "There were two alternative sites that we looked at. One was placing our antenna on a . . . light standard. But that would unfortunately, due to the grade of where Thousand Oaks Blvd. sits, and our coverage objective, it won't achieve what we'd like." (11:0171.) T-Mobile considered a second candidate at St. Paul's Church near the intersection of Thousand Oaks and Reyes Adobe Boulevards. But that site is zoned RS-CD, and the City's Zoning Ordinance does not permit wireless facilities in any of the R zoned areas. (11:0171-72.)

22. After considering the evidence, including statements by members of the public, the Planning Commission voted to approve T-Mobile's CUP application and adopted Resolution 961, which includes the following findings:

1. the Facility, "as conditioned, is consistent with the objectives and the provisions of the Zoning Ordinance and the purposes of the School District (SH) zone in which the use is located. Wireless telecommunication facilities are allowed in the School District (SH) zone, subject to the issuance of a Conditional Use Permit. The proposed antennas will be hidden within a pole design, which appears as a flag pole and does not have the visual mass of the typical monopole array antennas";

2. the Facility, "as conditioned, is compatible with the surrounding properties. The proposed antennas will be concealed within the top of an 18 inch wide galvanized steel flag pole 'radome'. Consequently, the project would not visually impact the surrounding residential community in that the antennas appear as only a flag pole, typically found on a school campus";

3. the Facility, "as conditioned, and the conditions under which it would be operated and maintained will not be detrimental to the public health, safety or welfare.Wireless telecommunication facilities are regulated through the State Public Utilities Commission as a public utility, which has addressed health and safety issues. The antenna installation will comply with FCC regulations, the National Electric Code, ANSE, and any applicable published federal standards that pertain to electromagnetic field exposure limits and the safe installation and maintenance of electric and radio frequency equipment. Compliance with the aforementioned regulations and standards is a condition of the conditional use permit, and any noncompliance may result in an immediate revocation of the permit. The proposed antenna and equipment will be installed such that they are incorporated into existing school facilities and no additional traffic or parking demand for this use is anticipated";

4. the Facility, "as conditioned, will comply with each of the applicable provisions of the Zoning Ordinance. Telecommunications facilities are allowed in the School District (SH) zone, subject to the issuance of a Conditional Use Permit. The location of the antennas and ancillary equipment will comply with the state and federal requirements";

5. the Facility, "as conditioned, will maintain the diversity of the community. The nearest wireless telecommunication facility is located at Kanan Road and Thousand Oaks Boulevard, as such, the new facility would not contribute to the over-concentration of similar uses"; and

6. the Facility "is consistent with the goals, objectives and policies of the General Plan. The General Plan Community Design Element calls for an efficiently organized and aesthetically pleasing City. The proposed project meets this goal by locating the new antennas on new antenna flag poles and screening the required ancillary equipment from public view."

(12:0208-09.)

23. A member of the City Council made a motion to appeal the decision of the Planning Commission, and the City Council voted to appeal the approval sua sponte. (14:0223, 0226; 15:0253.)

24. In order to further minimize any visual impacts, T-Mobile, taking advantage of a different technology, presented a single-pole design to City staff before the first hearing on the appeal. (18:0263; 32:0701.)

25. At the June 10, 2009 City Council meeting, T-Mobile demonstrated that the Facility was needed to fill a significant gap in in-building service, as well as a gap in service for motorists traveling along Thousand Oaks Boulevard and Reyes Adobe Road. (23:0401, 0407, ...


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