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GTE Mobilnet of California Limited Partnership v. Town of Danville

United States District Court, N.D. California

January 14, 2020




         Plaintiff GTE Mobilnet of California, L.P., d/b/a Verizon Wireless (“Plaintiff” or “Verizon”) filed its motion for a partial summary judgment on the first claim of its complaint, which alleged that Defendant Town of Danville's (“Defendant” or “Town”) denial of Verizon's application for a Land Use Permit (the “Application”) was not based on substantial evidence, in violation of 47 U.S.C. § 332(c)(7)(B)(iii)). The parties have agreed that the Court's review of the claim addressed in this motion is limited to the administrative record and matters of which the Court takes judicial notice. See Dkt. No. 15, Joint CMS, ¶ 4, p. 5. The Court held a hearing on this motion on January 10, 2020. For the reasons stated below and at the hearing, the Court GRANTS Plaintiff's motion for a partial summary judgment on its first claim of the complaint.

         The Court orders the Town to issue a permit for the approval of the facility at issue subject to all of the conditions that were part of the Planning Commissions' original approval on October 23, 2018.


         On November 10, 2017, Verizon filed an application with Defendant Town of Danville (“Defendant” or “Town”) requesting a Land Use Permit (the “Application”) to place a small wireless facility on an existing wooden utility pole on Camino Tassajara near the intersection of Gatetree Drive (the “Project”). See Administrative Record Volume 1, pages 1-13 and Volume 4, page 958 (“AR 1:1-13, 4:958”). The Project consists of panel antennas concealed within a tall cylinder on top of a pole extension, which would be mounted to the top an existing 38.4 foot utility pole, increasing the height of the pole to about 50 feet. See AR 4:958, 4:1013-1014.

         In support of the Application, Verizon submitted a map depicting the Project, designated “SF Camino Tassajara 009, ” located within a 500-foot search radius specified by Verizon's RF (radio-frequency) Engineer. See AR 1:210-11; Dkt. No. 27, Answer, ¶ 60. According to the map, the Project must be within this search radius in order to avoid being too close to other proposed small cells. See AR 1:143, 210-211; Dkt. No. 27, Answer, ¶ 60. Verizon also submitted a report prepared by Hammett & Edison, Inc., an engineering firm, to evaluate the Project's compliance with FCC limits on radio-frequency (“RF”) emissions (the “H&E Report”). See AR 1:8-12. The H&E Report stated that maximum exposure to RF emissions from the Project would not exceed 0.23% of the FCC public limit at any publicly accessible location. See AR 1:9-10.

         After reviewing the Application, the staff report to the Town's Planning Commission concluded that the Project was the “least intrusive means” for Verizon to meet its service objective, “as the existing tree backdrop will substantially screen the facility from view of adjacent residences.” See AR 1:158-159. The staff report also concluded that the Project is consistent with the Town's design guidelines for wireless facilities (the “Design Guidelines”). See AR 1:159. The staff report recommended that the Planning Commission approve the Project, and proposed findings that it met all requirements for approval. See AR 1: 159, 161-163. At a public hearing on October 23, 2018, the Planning Commission followed its staff's recommendation and approved the Application, finding that it met all requirements for approval, including the wireless Ordinance and the Design Guidelines for wireless facilities. See AR 1:270-271; 2:362-363, 385-389.

         On November 2, 2018, the “Danville Citizens for Responsible Growth” (“DCRG”) submitted an appeal. See AR 2:390-397. DCRG argued that a provision of the Ordinance discouraged wireless facilities within 250 feet of a residence and, according to DCRG, the Project location was less than 20 feet to the nearest residence. See AR 2:390-392. DCRG also alleged that there were alternative, feasible locations for the Project, the Project would have negative impacts on aesthetics and property values, the Project was inconsistent with the Town's General Plan goal to promote a “small town atmosphere, ” there is no evidence of any coverage gap, and certain neighbors did not receive notice of the Planning Commission hearing. See AR 2:390-397.

         On January 25, 2019, DCRG's counsel wrote to the Danville City Attorney claiming that there were three alternative sites near an East Bay Municipal Utilities District (“EBMUD”) facility at the intersection of Camino Tassajara and Sycamore Valley Road (collectively, the “EBMUD Sites”) that were both technically feasible and farther from residences than the Project. See AR 2:448-449. On January 30, 2019, Verizon submitted a rebuttal to DCRG's appeal, emphasizing compliance with the Town's Design Guidelines. See AR 2:458-484. Responding to the claim that the Project violated the residential setback, Verizon explained that there was no feasible alternative that met the setback, as confirmed by a detailed analysis of seven alternative locations, and that the EBMUD Sites were too far away to meet Verizon's coverage objective. See AR 2:460-461, 472-479. In addition, Verizon planned to install another small cell in that area to serve a distinct coverage objective.[1] See AR 2:472; 5:1687-1689.

         Planning staff reviewed DCRG's arguments, prepared a report on the appeal, and still concluded that the Project met all requirements for approval and recommended that the Town Council uphold the Planning Commission's approval. See AR 2:401-406. DCRG responded in a letter dated February 4, 2019 arguing that Verizon had failed to consider the EBMUD Sites and that its plan for an additional small cell in that area was irrelevant. See AR 2:499-506.

         The Council first considered the appeal at a hearing on February 5, 2019. Planning staff recommended that the Council uphold the Planning Commission's decision to approve the Project. See AR 3:645-649, 655-664. The Town's Principal Planner gave several reasons why the planning staff considered Verizon's proposed location “the least intrusive means” for Verizon to provide coverage including the fact that the Project was on an arterial street, “outside the neighborhood, ” along an existing utility corridor, on an existing utility pole, and has a backdrop of mature redwood trees which substantially screen it from view. See AR 3:660:24 - 661:17.

         There was extensive discussion at the hearing about whether the residential setbacks under 32-70.7(a) of the Ordinance applied to this project. The Planning staff and City Attorney repeatedly advised the Council that the residential setbacks under the Ordinance applied only to private land, not the public rights-of-way. See AR 3:659, 664-671, 860-862. The City Attorney explained, “if you put those distance parameters in as a blanket measure, that you couldn't be within 125 feet of - of a residence, for instance, you probably would effectively prohibit, you know, an antenna going in almost anywhere, because that's - that's the way the right-of-ways are - are set up.” AR 3:862. The City Attorney reminded the Council that concerns about RF emissions are preempted, citing the H&E Report as evidence that the Project will comply with FCC limits on RF emissions. See AR 3:662-664. DCRG continued to argue that Verizon should relocate to one of the EBMUD Sites. See, e.g., AR 3:750-751. Verizon representatives explained that this was beyond the 1, 000-foot to 1, 500-foot coverage radius of the Project (AR 3:843, 845-846), and that Verizon planned to put an additional small cell facility in that area to meet a separate coverage objective. See AR 3:709, 711. Councilmembers asked Verizon if it had considered other utility poles near the Gatetree Baptist Church at 101 Gatetree Drive. See AR 3:680, 700-701, 836. Verizon explained that these poles were infeasible because of existing PG&E electrical equipment but agreed to explore the possibility of placing a new pole near the church. See AR 2:474-475, 3:649, 844-845. The Council continued the hearing to March 5, 2019, asking Verizon to provide additional information regarding its other planned facilities, explore the possibility of placing its facility closer to the church, and test its existing facilities to confirm their compliance with FCC limits on RF emissions. See AR 3:648-649. The Council did not ask for more information regarding the EBMUD Sites. See id.; Dkt. No. 27, Answer, ¶ 86.

         Before the second Council hearing, Verizon submitted correspondence from PG&E confirming that it would not allow antennas to be placed on the poles near the church, but Verizon confirmed that it was feasible to install a new pole near the church. See AR 4:943-953. DCRG submitted a letter on February 26, 2019, arguing that the Project was not “the ‘least intrusive' location, as required by the U.S. Court of Appeals for the Ninth Circuit.” See AR 4:981-1007. The Town's Planning staff prepared another report for the Council prior to the March 5, 2019, hearing that concluded that Verizon could not use the existing utility poles near the church, and that installing a new pole near the church would be more intrusive than the Project. See AR 4:958-959. The staff report also confirmed that there were no other locations for a new pole that would be substantially farther from the nearest residence than the Project and still meet Verizon Wireless's coverage objective. See AR 4:959. Staff again recommended that the Council approve the Project. See AR 4:960.

         On March 5, 2019, the Town Council held a second public hearing on the appeal. See AR 4:954-957. Planning staff explained their findings that the Project met all the Town's requirements. See AR 4:1108-1111; see also Dkt. No. 27, Answer, ¶ 91. The Town Council then received presentations by Verizon Wireless, DCRG, and other project opponents. See AR 4:1096-1102. Planning staff and the City Attorney reiterated their interpretation that the setbacks located in 32-70.7(a) applied only to private land, while DCRG and project opponents continued to dispute this. See AR 4:1116-1117, 1250-1251. When discussing the setback, the Mayor stated: “it sounds like, if we are looking at our right-of-way, we're never going to hit 125 feet literally on any location with the exception of some medians on Camino Tassajara where we may get close.” AR 4:1116-1119, 4:1308-1309. The Senior Planner responded: “that's why our ordinance does not require 125-foot setback on public right-of-way.” See AR 4:1309. Verizon representatives argued that even if the residential setback under the Ordinance applied, the Project should be approved because there was no feasible alternative site that met the setback. See AR 4:1127. The Senior Planner confirmed that it was “not possible” for the Project to meet a 125-foot setback. See AR 4:1117. He explained that staff had walked up and down Camino Tassajara through the entire coverage area, and confirmed that “there's really no other utility poles or even locations for monopoles that could be put in that area that are really any further away from residences.” AR 4:1108-1110.

         DCRG and members of the public continued to argue that Verizon should relocate the facility to the vicinity of the EBMUD property. See, e.g., AR 4:1132. The Verizon RF Engineer stated that small cells are designed to cover a compact area, with a coverage radius up to 1, 500 feet (See AR 4:1201-1203), and the EBMUD Sites favored by DCRG were over 2, 100 feet distant. See AR 2:460, 4:944, 1270. Verizon explained that the area near the EBMUD facility is not a substitute for the Project because Verizon needs to install an additional small cell (SF Camino Tassajara 008) in that area. See AR 4:1190-1191, 4:1283. Verizon's Counsel provided the Council with a map prepared by the Verizon Wireless RF Engineer that depicted the separate and distinct coverage areas of the Project (SF Camino Tassajara 009) and the small cell planned near the EBMUD facility (SF Camino Tassajara 008). See AR 4:1222-1225. The City Attorney advised the Council, “I think they've told you in fairly plain English . . . that they believe they need antennas at both those sites.” AR 4:1250.

         Many opponents focused on the alleged health effects of the Project's RF emissions. See, e.g., AR 4:1177, 1182, 1186. The City Attorney, however, confirmed that this was not a permissible basis for any decision by the Council, due to federal preemption. See AR 4:1245, 1303. Mr. Mathur, an engineer from Hammett & Edison, noted that based on “worst case, maximum power” assumptions, the maximum exposure to RF emissions from the Project at any publicly accessible location will be 430 times below the FCC limit. See AR 4:1193-1196. No Councilmember asked Mr. Mathur any questions about the proprietary software used to prepare the H&E Report. See AR 4:1193-1198; see also Dkt. No. 27, Answer, ¶ 98. Verizon also proposed a condition of approval that would require postconstruction testing - or actual measurements in the field - of RF emissions to confirm compliance. See ...

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