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Nextg Networks of California, Inc v. City of Newport Beach

February 18, 2011

NEXTG NETWORKS OF CALIFORNIA, INC., PLAINTIFF(S),
v.
CITY OF NEWPORT BEACH, CA, DEFENDANT(S).



The opinion of the court was delivered by: David O. Carter United States District Judge

O

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

Before the Court are cross-Motions for Summary Judgment filed by Plaintiff NextG Networks of California, Inc. ("NextG") [17] and the City of Newport Beach, CA ("City") [12]. After considering the moving, opposing and replying papers thereon, as well as oral argument, the Court hereby GRANTS the City's Motion and DENIES NextG's Motion.

I. BACKGROUND

This case concerns a city government's authority to deny construction of new telecommunications structures. NextG is a "telephone corporation" and a "public utility" as defined by the California Public Utilities Commission. Undisputed Fact from Pl.'s Statement of Undisputed Facts ("Pl.'s SOF"), ¶ 1-2. NextG seeks to install and operate a series of antennas and associated structures within the City of Newport Beach, CA, in order to provide telecommunications services. Administrative Record ("AR") 962-1060. To accomplish this objective, NextG first explored the idea of attaching its antenna structures to City-owned street poles. According to NextG, however, use of these poles proved cost-prohibitive. The City requested a fee of $1,500 per month per pole, even though NextG estimated that the antenna structures would generate revenue of only $500 per month. AR 747. NextG thus proposed to build its own antenna towers. It submitted seven permit applications to the City, requesting permission to install its own monopoles at designated locations. All of NextG's proposed locations were on or near the Pacific Coast Highway, a scenic coastal route that travels along the Pacific Ocean. NextG specifically requested the following:

(1) To install at 1101 East Coast Highway a 32-foot, free-standing monopole with an omni-directional antenna on top and an equipment box on the side. Id. at 717, 730-33.

(2) To install at 2346 East Coast Highway a 30-foot-3-inch, free-standing monopole with an omni-directional antenna on top and an equipment box on the side. Id. at 717-18, 730-31, 734-35.

(3) To install at 4501 West Coast Highway a 30-foot-3-inch, free-standing monopole with an omni-directional antenna on top and an equipment box on the side. Id. at 717-18, 730-31, 736-37.

(4) To install at 5100 East Coast Highway a 32-foot, free-standing monopole with an omni-directional antenna on top and an equipment box on the side. Id. at 718, 730-31, 738-39.

(5) To install at 6228 East Coast Highway a 26-foot-7-inch free-standing monopole with an omni-directional antenna on top and an equipment box on the side. Id. at 717, 730-31, 742-43.

(6) To install an omni-directional antenna and an equipment box on the side of an existing Southern California Edison utility pole located at 3215 Marcus Avenue. Id. at 718, 730-31, 742-43.

(7) To install an omni-directional antenna and an equipment box on the side of an existing Southern California Edison utility pole located at 202 Santa Ana Avenue. Id. at 718, 730-31, 744-55.

On or about June 22, 2010, the City served Public Notices to all owners of property located near each of the proposed installation sites, setting forth a detailed description of the proposed installations and indicating that the City would be conducting a public meeting on July 6, 2010 to consider the applications. AR 669-706. The City received numerous letters and emails from residents related to NextG's permit applications, the overwhelming majority of which opposed the installations.*fn1

The City held a public meeting on the permit applications on July 6, 2010. AR 815-873, 874-876. In advance of the hearing, City staff prepared a fourteen-page report describing NextG's overall proposed project, detailing each of the seven applications, summarizing city ordinances and analyzing each of the seven applications in conjunction with the applicable ordinances, attaching over 80 pages of supporting documentation (including photo simulations prepared by NextG of the proposed installations and numerous correspondence from residents and resident groups opposing the installations), and making recommendations to the City Council on each of the seven applications. AR 716-717. The staff report ultimately recommended denying the five applications for the new free standing monopoles and approving, with conditions, the other two applications. At the meeting, City staff, as well as three representatives from NextG, gave presentations and fielded questions from the City Council members. The City Council also heard comments from eleven members of the public, all of whom opposed the new installations. AR 815-873, 874-876.

A vote took place at the end of the meeting, wherein the City Council unanimously voted to adopt the recommendations of the staff report (to deny the five applications requesting new installations and to approve the other two applications on certain conditions). City staff thereafter prepared resolutions setting forth the City's decision on each of NextG's applications, which the City Council formally adopted at a meeting on July 27, 2010.

Each of the resolutions denying NextG's applications for the five new towers included a summary of facts related to the application, a recounting of the proceedings conducted by the City Council, an articulation of the reasons for denial and the evidence relied on in reaching the City's decision. The stated reasons for denial -- as well as the explanation of the evidentiary support behind the decision -- were identical for each application. The City offered the following six reasons in support of each denial:

(1) The detrimental visual effect that the proposed facilities would have on the public streetscape ...


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