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T-Mobile West Corporation, A Delaware Corporation v. City of Huntington Beach

October 10, 2012

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



O

JS-6

FINDINGS OF FACT AND CONCLUSIONS OF LAW Before the Honorable Christina A. Snyder Trial Date: August 28, 2012 Time: 9:30 a.m. Courtroom: 5

FINDINGS OF FACT

This case was tried to the Court on August 28, 29, 30 and 31, 2012. Martin Fineman of Davis Wright Tremaine LLP appeared for plaintiff T-Mobile West Corporation. Scott F. Field, Assistant City Attorney for the City of Huntington Beach, appeared for defendants.

The Court finds the following facts are supported by the evidence.

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

2. Plaintiff T-Mobile is the operating entity of 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 ("CMRS") within the Southern California area. Thus, Plaintiff T-Mobile West Corporation provides personal and advanced wireless services, and therefore operates commercial mobile radio services, as defined by federal law, and markets them in Southern California under the name "T-Mobile."

3. Defendant City of Huntington Beach is a public entity organized and existing under the laws of the State of California.

4. Defendant City Council of the City of Huntington Beach ("City Council") is the governing body of the City of Huntington Beach.

5. The City of Huntington Beach and the City Council are collectively referred to herein as the "City".

Jurisdiction and Venue

6. The Court has jurisdiction over the action pursuant to 28 U.S.C. §§ 1331 (federal question) and 1337 (commerce) based on the alleged violation of 47 U.S.C. § 332(c)(7)(B)(i)(II).

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

History

8. On April 20, 2009, T-Mobile applied for a Wireless Permit (No. 09-013) to install and operate a wireless telecommunications facility ("Facility") that would fill a significant gap in coverage in T-Mobile's network in the area around Edwards and Heil in Huntington Beach.

9. The Facility would be located on the property of Community United Methodist Church, 6666 Heil Avenue, Huntington Beach, California ("CUMC," "Community United" or "the Church").

10. When it first applied for a wireless permit for a wireless telecommunications facility at CUMC, T-Mobile proposed a 55 foot tall faux palm tree, commonly referred to as a "monopalm," to support and conceal the antennas. There were to be 12 panel antennas plus one GPS antenna and radio equipment within a block wall enclosure.

11. On May 12, 2009, the City issued its Initial Action for the project, approving the Wireless Permit with the requirement to obtain a Conditional Use Permit ("CUP") and undergo Design Review.

12. T-Mobile filed a comprehensive application for a CUP that addressed the significant gap in service in the area surrounding CUMC, as well as an analysis of CUMC and potential alternate locations.

13. On August 24, 2009, the City deemed the T-Mobile application complete. The City scheduled the Design Review Board review for September 10, 2009 and the City's Zoning Administrator hearing on the CUP application for September 30, 2009.

14. On September 10, 2009, the City's Design Review Board recommended approval of the project, with conditions, to the Zoning Administrator.

15. On September 24, 2009, T-Mobile held a Neighborhood Meeting at CUMC to explain the project to any interested members of the public.

16. The City's Zoning Administrator is the City official authorized to hear and decide upon Wireless Permits and Conditional Use Permits. Absent an appeal, the Zoning Administrator's decision on such applications is final.

17. The Zoning Administrator heard the case on September 30, 2009, and continued the item to October 28, 2009, to allow for alternative design options to be developed. The hearing was later continued to November 4, 2009, to allow additional time for design exhibits to be developed.

18. The Zoning Administrator and the Planning Department asked T-Mobile to change the proposed design of the Facility from the monopalm design to a bell tower design. T-Mobile complied. The monopalm design would have required a new vertical element while the bell tower design would not. The bell tower design called for the replacement of an existing 52 foot bell tower at CUMC with a new 55 foot bell tower of essentially identical design. The new bell tower was designed such that it was completed stealthed -- that is, the antennas would be enclosed within the tower and could not be seen. The panels at the top of the proposed bell tower were designed to replicate the design of the facade of the Church. The radio equipment would be placed underground and also could not be seen. The number of panel antennas would be reduced from 12 with the monopalm design to 6 with the bell tower design.

19. The staff report recommended approval of the CUP.

20. On November 4, 2009, the City's Zoning Administrator heard the case and approved the project as a fifty-five (55) foot tall replacement bell tower. The City's Notice of Action letter with conditions of approval was issued the same day, with the appeal period ending November 16, 2009.

21. The Zoning Administrator made the following findings on the basis of the evidence in the record:

Zoning Administrator Finding 1: The Facility will not be detrimental to the general welfare of persons working or residing in the vicinity or detrimental to the value of the property and improvements in the neighborhood. Also, the project will not generate noise, traffic, or demand for additional parking beyond that already exists on the subject site.

Zoning Administrator Finding 2: The Facility will be compatible with surrounding uses because the ancillary equipment is underground, and the replacement bell tower will blend into the surrounding environment, including the existing church on the site, while completely concealing the antennas from public view.

Zoning Administrator Finding 3: The CUP will comply with the provisions of the base zoning district and other applicable provisions in Titles 20-25 of the Huntington Beach Zoning and Subdivision Ordinance. Wireless facilities may exceed the 35 foot height limitation for the base zoning district with approval of a CUP.

Zoning Administrator Finding 4: Granting the CUP will not adversely affect the General Plan because it is consistent with the "Public" Land Use Element designation on the subject church property. The Facility will enhance wireless communications in the community by improving the signal transmission and reception in the project vicinity. As conditioned, the Facility will have minimal visual impacts to surrounding uses "because the wireless communications equipment will be underground and the new bell tower will match the existing [bell tower]." In addition, the CUP is consistent with the relevant goals and policies in the Land Use Element and Utility Element in the Huntington Beach General Plan. Specifically:

Land Use Element Goal LU 2: Ensure that development is adequately served by transportation infrastructure, utility infrastructure, and public services.

Land Use Element Policy LU 2.1.1: Plan and construct public infrastructure and service improvements as demand necessitates to support the land uses specified in the Land Use Plan (as defined in the Circulation and Public Utilities and Services Elements of the General Plan).

Utility Element Policy U 5.1: Ensure that adequate natural gas, telecommunication and electrical systems are provided.

Utility Element Policy U 5.1.1: Continue to work with service providers to maintain current levels of service and facilitate improved levels of service.

CEQA Exemption: The Zoning Administrator also found that the project will not have any significant effect on the environment and is exempt from the requirements of the California Environmental Quality Act ("CEQA") pursuant to section 15301 of the CEQA Guidelines (i.e., section 15301 of Title 14 of the California Code of Regulations).

22. The Zoning Administrator's action was appealed by Ms. Dianne Larson, a member of the public, on November 16, 2009.

23. T-Mobile held a second Neighborhood Meeting for the project on December 9, 2009 at CUMC.

24. On January 12, 2010, the Planning Commission held a study session on the project.

25. The staff report recommended approval of the CUP application. 26. On January 26, 2010, the Planning Commission granted the appeal and denied the CUP.

27. On February 5, 2010, T-Mobile filed an appeal of the Planning Commission action to the City Council.

28. The City Staff submitted a Staff Report recommending approval of the CUP. In summary, City Staff found: "[T]he distance between existing cell sites creates a coverage gap and limits the signal strength to a point where indoor coverage is reduced or nonexistent." "[T]he proposed facility will improve network performance by increasing the signal strength." "Staff determined that the information submitted demonstrated that a sufficient gap in coverage." "Staff evaluated the alternatives and determined that the proposed location and design as the least obtrusive location feasible so as to eliminate any gap in coverage." "The design is completely stealth due to the fact that the proposed design is integrated into the church facility by replicating an on-site structure in a manner that it cannot be identified as a wireless communications facility."

29. On March 15, 2010, the City Council denied the T-Mobile appeal and upheld the Planning Commission's decision of denial of the CUP.

30. The City Council's Notice of Action states: "[T]here are incomplete and inconsistent facts regarding whether the project is necessary to fill a significant gap in wireless coverage." "[T]here was no evidence presented that alternative sites were analyzed and considered as available to remediate any significant gap in coverage issues in the area." "[T]he proposed wireless communications facility . . . will intrude into the views of adjacent residents." "The proposed design of the new bell tower will create visual blight . . ." "Masked in the existing tower, as proposed, the wireless communications facility and supporting structure will not blend into the surrounding residential environment including the existing church. . ."

31. In total, the entitlement and permitting efforts took place between March 24, 2009 and March 15, 2010.

32. T-Mobile timely filed this lawsuit on April 16, 2010.

33. The City has not tendered any affirmative defenses or counterclaims. T-Mobile's Network in Huntington Beach

34. T-Mobile's network includes antenna facilities which must be located near to persons placing or receiving telephone calls or using data services. These antenna facilities are referred to as "wireless telecommunications facilities," "personal wireless service facilities," "base stations" or, euphemistically, "cell sites."

35. A wireless telecommunications facility consists of the antennas, the transmission equipment, the cables connecting the antennas to the transmission equipment, and all necessary utilities, including back haul.

36. In a densely-populated and heavily-traveled area such as Huntington Beach, it is necessary to place wireless telecommunications facilities approximately 0.25 miles apart.

Reliable In-Building Coverage is Essential to Consumers and Carriers

37. Wireless usage has grown exponentially in the last decade. The number of wireless users (331 million as of December 2011) has grown to the point that there is now more than one wireless connection for each person in the United States. Furthermore, the capabilities of wireless devices have increased, providing talk, text and data services (for example, e-mail, internet, sending photographs or videos, videoconferencing, etc.) A large and growing percentage of households are wireless-only. Fifty percent of Americans use their wireless phone as their sole or essentially sole communications device. In the United States, wireless voice usage was above 1.1 trillion minutes per year, compared to 100 billion minutes of wireline interstate switched access minutes. In other words, by December 2011, there were more than 11 times as many mobile minutes of use than wireline interstate switched access minutes. The percentage of wireless calls placed in-building is high and rapidly increasing, growing from 40% in 2003 to 58% in 2012. More specifically, the share of wireless calls from the home has increased significantly, from 25% in 2003 to 35% in 2011. The importance of reliable in-building coverage is illustrated by the numerous E-911 calls placed from wireless devices. The FCC estimates that 70% of E-911 calls are made from wireless devices, and the percentage is growing. Approximately 2306 wireless E-911 calls were made on T-Mobile's network between December 2011 and June 2012 in the CUMC area. Consumers and carriers have an expectation and a need for reliable in-building wireless service. Providing reliable in-building service in the area surrounding CUMC is essential, and its absence constitutes a significant gap in coverage.

Creation of the Search Ring

38. T-Mobile's Irvine, California office regularly holds meetings attended by its design engineers and optimization engineers to determine whether and where additional wireless telecommunications facilities may be necessary to develop TMobile's network. Such decisions are made based on information that includes how radiofrequency waves are behaving in a given area due to the performance of existing cell sites, which may result in dropped calls, system access failures, customer complaints, and other key performance and quality indicators. The analysis includes a review of additional field measurements including coverage maps and/or drive test information. As a result of such a meeting, the engineering group determined that a wireless telecommunications facility was necessary to serve the area surrounding Heil Avenue and Edwards Street in Huntington Beach. The engineering group issued a search ring, designated as LA 33421A, for a wireless telecommunications facility to serve that area.

39. A search ring is the area in which the wireless telecommunications facility should be placed in order to meet the coverage objective. The engineering group bases the search ring upon the wireless grid plan. Factors considered include the location of surrounding existing sites, the population density, environment (urban, suburban, rural), and topography/terrain. An average cell radius is determined to balance the coverage and capacity for the network. This is why densely populated areas like Huntington Beach utilize lower height facilities and a 0.25 mile or less search ring radius while rural areas with low population density utilize taller sites and a larger search ring radius of 0.5 mile or more. A search ring is scientifically-based, determined by the propagation of radio frequency waves and the need to avoid interference with adjacent sites, and is not arbitrary.*fn1

A Significant Gap in T-Mobile's Coverage Exists in the Area Surrounding CUMC

40. T-Mobile has a significant gap in wireless service in the area surrounding the Heil Avenue and Edwards Street in Huntington Beach. A gap in second generation ("2G") in-building service and third generation/fourth generation ("3G/4G") in-building service currently exists in the vicinity of the Facility. T-Mobile also has a significant gap in reliable in-vehicle service in the vicinity of the Facility.

41. Providing quality in-building voice and data services, with sufficient system capacity and high-speed data rates, is critical to T-Mobile's customers and is essential to T-Mobile's ability to compete effectively with its functionally equivalent competitors such as Verizon Wireless, AT&T Mobility and Sprint.

42. Positive wireless voice and data experience is the goal for all wireless providers. A positive wireless experience includes the customer connecting to the network on the first try, staying connected throughout the call or data transmission, and the customer ending the call or data session when ready. For data connections (e.g., internet browsing) the speed should be as fast as the technology allows. A gap in service causes a negative experience: customers cannot place calls when they want to; when they are connected, voice call quality does not meet customer expectations or they do not choose when to end the call; or, the call simply drops off (disconnects) without notice. When a gap in service exists with respect to data communications, the data experience is not instantaneous or is much slower than the customer requires.

43. T-Mobile has a significant gap in service in the vicinity of the Facility, as measured by a lack of reliable in-building residential coverage. T-Mobile also has a significant gap in reliable in-vehicle service. T-Mobile also has a gap in reliable in-building and in-vehicle data service. T-Mobile proved the significant gap in reliable service through advanced computer propagation ...


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