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In Re Cell Tower Litigation

August 5, 2011

IN RE CELL TOWER LITIGATION


The opinion of the court was delivered by: Hon. Roger T. BenitezUnited States District Judge

ORDER: * GRANTING IN PART AND DENYING IN PART ATC'S OTION FOR SUMMARY JUDGMENT * GRANTING IN PART AND DENYING IN PART THE CITY'S MOTION FOR SUMMARY JUDGMENT [Dkt. Nos. 128--130]

INTRODUCTION

Plaintiff American Tower Corporation ("ATC") and Defendants City of San Diego, City Council of City of San Diego, and Development Services Department of City of San Diego ("the City") have filed cross motions for summary judgment in Case No. 07cv399 BEN (WVG). Dkt. Nos. 128, 130. The parties each seek summary judgment on certain claims concerning the denial of a conditional use permit ("CUP") for a wireless communications facility located at 2222 Versus Street ("Versus").*fn1 For the reasons discussed below, the Court grants in part and denies in part both motions for summary judgment.

BACKGROUND

ATC owns a 90-foot telecommunications tower and associated building at the Versus site in San Diego. Telecommunications providers use or lease space on the tower to wireless services providers. The previous CUP for the Versus site was issued in 1995 for a period of ten years. The Versus CUP did not provide for extensions or renewal. The CUP specifically required all activity at the site cease and the site be returned to its original condition upon expiration if a new CUP was not approved for the site.

ATC's new CUP application for the Versus site sought to maintain the site with its existing height and design despite City regulations that require such facilities be designed to be minimally invasive through design, use of architecture, landscape architecture, and siting solutions. Throughout the various stages of the proceeding before the City, ATC refused to make any concessions with regard to the height or design of the tower and refused to provide any site-specific analysis of the impact on wireless coverage from lowering the tower. However, ATC did make an untimely offer with regard to landscaping at the site.

Eventually, following a lengthy extension of time by the agreement of the parties, the Hearing Officer denied the application because the tower failed to comply with the regulations. ATC appealed to the Planning Commission, and the Planning Commission upheld the Hearing Officer's decision.

DISCUSSION

Summary judgment should be granted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). If the moving party meets this burden, the burden then shifts to the opposing party to set forth specific facts showing that a genuine issue remains for trial. Id. "Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting FED. R. OF CIV. P. 1)).

"[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247--48. Evidence raises a genuine issue of material fact if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. The Court must decide "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 252. "[W]hen parties submit cross motions for summary judgment, each motion must be considered on its own merits." Fair Hous. Council v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001).

"Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . . The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). "A 'justifiable inference' is not necessarily the most likely inference or the most persuasive inference. Rather, 'an inference as to another material fact may be drawn in favor of the nonmoving party . . . if it is rational or reasonable.'" United Steelworkers of America v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989) (quoting T.W. Elec. Serv. v. Pac. Elec. Contractors, 809 F.2d 626, 631 (9th Cir. 1987)).

I. Telecommunication Act ("TCA")

A. 47 U.S.C. § 332

ATC moves for summary judgment on its three claims under 47 U.S.C. § 332(c)(7): unreasonable discrimination, effective prohibition, and lack of substantial evidence.*fn2 The Telecommunications Act affirms local government zoning authority "regarding placement, construction, and modification of personal wireless service facilities." 47 U.S.C. § 332(c)(7)(A). But that authority is limited. § 332(c)(7)(B). Specifically, local governments: "shall not unreasonably discriminate among providers of functionally equivalent services," § 332(c)(7)(B)(i)(I); "shall not prohibit or have the effect of prohibiting the provision of personal wireless services," § 332(c)(7)(B)(i)(II); and any decision by a local government to deny a request for a personal wireless service facility must be supported by substantial evidence, § 332(c)(7)(B)(iii).

1. Substantial Evidence*fn3

ATC argues that the City's denial of its application for a CUP for the Versus site was not supported by substantial evidence. "[T]he substantial evidence inquiry does not require incorporation of the substantive federal standards imposed by the TCA, but instead requires a determination whether the zoning decision at issue is supported by substantial evidence in the context of applicable state and local law." MetroPCS, Inc. v. City and Cnty. of S.F., 400 F.3d 715, 723--24 (9th Cir. 2005) (emphasis in original). The substantial evidence review is "deferential." Id. at 725. The Court may not "engage in [its] own fact-finding nor supplant the [City's] reasonable determinations." Id. "The upshot is simple: this Court may not overturn the [City's] decision on 'substantial evidence' grounds if that decision is authorized and supported by a reasonable amount of evidence (i.e., more than a 'scintilla' but not necessarily a preponderance)." Id.

San Diego Municipal Code § 141.0405 regulates communications towers like the Versus site. The City appropriately considered the 90-foot tower and equipment shelter a major communications facility and evaluated the CUP under those requirements. In addition to other requirements, "[m]ajor telecommunications facilities shall be designed to be minimally invasive through the use of architecture, landscape architecture, and siting solutions, . . . us[ing] the smallest and least visually intrusive antennas and components that meet the requirements of the facility." S.D.M.C. § 141.0405.

Accordingly, the regulations authorize the City to consider the visual impact of the tower, including whether the applicant has used design, architecture, and landscape architecture to minimize its intrusion.

In opposing ATC's motion for summary judgment on this claim, the City cites generally to the Reports to the Hearing Officer, the Resolutions of the Hearing Officer, and the Reports to the Planning Commission.*fn4 The City found that the tower was the tallest structure in and around the area, resulting in an incongruous effect on the community landscape and that it posed an unsightly visual impact for commuters because it is situated prominently along a major transportation corridor, I-5. The regulations authorize the City's consideration of these facts in denial because the City is charged with requiring designs that are minimally invasive.

Additionally, it is clear throughout the record that ATC's consistent refusal to modify the proposal to minimize its visibility, including refusal to reduce the height by even the 23 feet of unused tower, weighed against approval of the CUP. This evidence also supports the City's denial because the regulations require designs that are minimally invasive. Reviewing the record deferentially, as the Court must, the Court finds that the City's decision was supported by more than a scintilla of evidence. Accordingly, ATC is not entitled to summary judgment on its substantial evidence claim under § 332(c)(7)(B)(iii).

2. Unreasonable Discrimination

ATC argues that the City's denial of its application for a CUP for the Versus site constitutes unreasonable discrimination. The TCA prohibits "regulation of the placement, construction, and modification of personal wireless service facilities . . . [that] unreasonably discriminate[s] among providers of functionally equivalent services." § 332(c)(7)(B)(i)(I). The only provider ATC claims that the City is differentially treating is the City. To succeed on its unreasonable discrimination claim, ATC must prove that ATC and the City are functionally equivalent providers and that the City is unreasonably discriminating between the City and ATC. Id. (emphasis added).

The parties do not dispute that the City has two towers that are relatively comparable to the Verus tower in terms of size and that the City does not impose its regulations on its own towers. ATC argues that the City's imposition of regulations on ATC that it does not impose upon itself gives the City an unfair competitive advantage against ATC. The City counters that it does not market or advertise its towers in competition with ATC, primarily uses its towers for emergency communications and the general business of the City, and is lawfully exempt from its own land use regulations. The City admits it generates approximately $50,000 from leases to commercial carriers, but this revenue is in sharp contrast to ATC's state rental earnings in excess of one million dollars. ATC counters that the City actually generates approximately $100,000 more from public entities co-located on the City's towers.

Here, ATC and the City are not functionally equivalent providers. While the evidence presented by the parties does not provide the most comparable information for comparison, it is clear that the City's towers are used primarily for City services, including emergency services. Its minimal leases to other providers, predominately public entities, on these two towers are not comparable to ATC's tower being used entirely for commercial gain with substantially greater revenue. In reaching this conclusion, the Court is mindful that the City's use of its towers could certainly reach a point where it is more equivalent to ATC, and ATC's concerns that the City is tipping the scales in its favor as a direct competitor might have more traction. Based on the evidence provided, however, ATC and the City are not functionally equivalent providers. Accordingly, ATC is not entitled to summary judgment on its unreasonable discrimination claim under § 332(c)(7)(B)(i)(I).

3. Effective Prohibition

ATC argues that the City's denial of its application for a CUP for the Versus site constitutes effective prohibition. Under the TCA, local government's regulation of personal wireless facilities cannot "prohibit or have the effect of prohibiting the provision of personal wireless services." ยง 332(c)(7)(B)(i)(II). "[A] locality can run afoul of the TCA's 'effective prohibition' clause if it prevents a wireless provider from closing a 'significant gap' in service coverage." MetroPCS, 400 F.3d at 731. To succeed, ATC must demonstrate a significant gap in service and that the way "it proposes to fill the significant gap in services is the least intrusive on the ...


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