California Rsa No. 4 v. Madera County
| Decision Date | 10 October 2003 |
| Docket Number | No. CV F 02-6605 SMS.,CV F 02-6605 SMS. |
| Court | U.S. District Court — Eastern District of California |
| Parties | CALIFORNIA RSA NO. 4 d/b/a Verizon Wireless by and through Its General Partner Pinnacles Cellular Inc., Plaintiff, v. MADERA COUNTY and the Board of Supervisors of Madera County, Defendants. |
Ronald Edward Van Buskirk, Pillsbury Winthrop LLP, San Francisco, CA, for plaintiff.
Douglas W. Nelson, Madera County Counsel, Madera, CA, for defendants.
ORDER GRANTING PLAINTIFF'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT (DOC. 12)
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION (DOC. 11)
ORDER SETTING INFORMAL TELEPHONIC STATUS CONFERENCE for OCTOBER 31, 2003, at 11:00 A.M.
The motion of Plaintiff for summary judgment and summary adjudication came on regularly for hearing on Thursday, September 25, 2003, at 9:30 a.m. in Courtroom 4 before the Honorable Sandra M. Snyder, United States Magistrate Judge. Ronald E. Van Buskirk and Diana Graves of Pillsbury Winthrop appeared on behalf of Plaintiff, and Douglas W. Nelson of the Madera County Counsel's Office appeared on behalf of Defendants. The Court had reviewed all the papers submitted in support of and in opposition to the motion. After argument, the matter was submitted to the Court.
Plaintiffs are proceeding with an action asserting a violation of 47 U.S.C. § 332(c)(7)(B). The matter has been referred to the Magistrate Judge for all proceedings, including the entry of final judgment, pursuant to 28 U.S.C. § 636(c), Fed.R.Civ.P. 73(b), and Local Rule 73-301.
Plaintiff, Verizon Wireless ("VZW"), has filed a motion for summary judgment on its claims under Section 704 of the Telecommunications Act of 1996 (47 U.S.C. § 332(c)(7)(B)), challenging the denial by the County of Madera ("County") of VZW's application for a conditional use permit for a wireless facility in the Yosemite Lakes Park ("YLP") subdivision in Coarsegold, California. The parties have completed briefing on the summary judgment motion and submitted the administrative record of the County's action to the Court.2 Plaintiff's request that the Court take judicial notice of various documents concerning legislative history and portions of a zoning ordinance will be granted.
Pursuant to the parties' consent and the June 18, 2003 status conference order,3 the County has filed its Amended Answer dated June 20, 2003. The parties also complied with the direction to "jointly file a summary of all facts in the record material to the motion for summary judgment, which shall be accompanied by a collection of excerpted portions of the record reflecting the facts material to a review of the substantiality of the evidence or to any other issue in dispute."
VZW has asserted three claims under Section 704:(1) that the County failed to issue a written decision as required by the statute; (2) that the County lacked substantial evidence to deny the use permit in the circumstances; and (3) that the County's action amounts to a prohibition of wireless service in violation of Section 704. Under the Amended Answer, the County does not dispute the first claim. The County does dispute claims 2 and 3.
The parties submitted a joint summary of facts bearing upon the Section 704 claims asserted by VZW and an appendix of documents and transcript excerpts from the administrative record upon which each side relies to support its position on the disputed claims. The excerpts have been highlighted to show the precise evidence relied on by each side.4
The facts are taken from the parties' joint summary of facts as augmented by the Court's review of the record.
In December, 2000, California RSA No. 4, doing business as Verizon Wireless ("VZW"), filed a site approval application (Application No.2000-36) with the Madera County Planning Department for a use permit to install a telecommunications facility approximately 1,500 feet southwest of the intersection of Blue Heron Way and North Dome Drive (otherwise named "Outlot D") in the YLP subdivision in Coarsegold, California. Administrative Record ("AR") 0034.
The VZW application proposed a wireless communications facility consisting of four six (6)-inch diameter poles, 25 feet in height, with attached whip antennas, with a combined height of approximately 30 feet. The poles would be located approximately four feet from an existing 50,000 gallon water tank 25 feet in height. The water tower is an existing for-profit commercial use on Outlot D and is served by an existing road and public utilities; Outlot D is subject to an easement from the Yosemite Lakes Owners' Association, granted in 1976, for construction and operation of public utility facilities including telephone lines and necessary appurtenant facilities. AR 0001, 0471.23-0471.27; AR 0096-97 (May 7, 2002 Planning Commission Staff Report); AR 0179-0185 (August 20, 2002 Memo from Appellant to Board of Supervisors).
Three refrigerator-sized cabinets to house telecommunications equipment would be placed approximately 45 feet from the base of the water tank on a 15 by 15 foot concrete pad. The equipment cabinets would be located within an existing fenced area around the tank and would not be visible from the adjacent housing community. The closest residence is more than 250 feet from the equipment cabinets. AR 0107, 0187, 0192, 0471.11.
The proposed site for the facility is located in a OS/MHA (Open Space/Manufactured Housing Architectural Review Overlay) zoning district which allows telecommunications facilities with approval of a conditional use permit. AR 0054, 0096-97.
The proposed facility is lower than the 35 foot maximum allowable height for structures in the open space zone. AR 0096 — 97.
Madera County General Plan Policy 3.J.1 states that the County shall "facilitate the provision of adequate gas and electric, communications and telecommunications services and facilities to serve existing and future needs while minimizing noise, electromagnetic and visual impacts on existing and future residents." AR 0208.
The Planning Department prepared and submitted to the County Planning Commission a Staff Report recommending approval of the project. AR 0052-0058. The Staff Report included attachments of supporting documents from VZW; four letters opposing the project; recommendations in favor of the project from the County Engineer, County Road Department, and Count Fire Department; and a proposed Mitigated Negative Declaration. AR 0059-0085. Both the Staff Report and the Mitigated Negative Declaration stated that the project would have no significant environmental impacts, no significant community impacts, and would not violate the spirit or intent of the zoning ordinance. AR 0052, 0079-81, 0094, 0127-0129.
On February 6, 2001, the Planning Commission held a public hearing to consider VZW's application.5 VZW presented testimony in support of the project. Ten persons spoke in opposition to the project, and a petition with 251 signatures was submitted opposing the project. The Commission was advised that the YLP Homeowners Association owned Outlot D and that the Association Board of Directors had given VZW permission to apply for the use permit, although the Board and VZW were still negotiating a lease. AR 0088-89, 0095. The Planning Commission stated that "the proposed towers were the least intrusive of any tower they have approved", but denied the application without prejudice because VZW was still negotiating lease terms with the YLP Homeowners Association as the site owner. AR 0089.
Following finalization of the lease agreement with the Homeowners Association, VZW requested that the Planning Commission reconsider the use permit. AR 0092.
The Planning Department submitted a second Staff Report to the Planning Commission recommending approval of the project. AR 0094-0100. The Staff Report concluded the project would have no significant impacts and recommend adoption of the Mitigated Negative Declaration. AR 0098. The Staff Report noted that one additional letter in opposition had been submitted; attached the four opposition letters to the report; and noted that a survey of YLP Homeowners Association members indicated 71% of those responding were in favor of the project. AR 047.14.
The Planning Commission held a public hearing on reconsideration of the permit on May 7, 2002.6 VZW presented its application to the Planning Commission and testified that VZW required the proposed facility to fill a "dead area" along Highway 41 and that this site provided the best coverage to the area while providing access to the infrastructure required to build and maintain the facility. AR 0154. The Planning Commission received testimony from seven local residents stating concerns that the installation of the facility would violate the CC & R's of the Homeowner's Association, encourage further development in the area, decrease property values due to perceived health risks, present actual health risks from Radio Frequency ("RF") radiation, and generate noise. AR 0154-0155.
Following the public hearing, the Planning Commission voted to deny the permit, finding that the facility: (1) "will not violate the spirit or intent" of the zoning ordinance; (2) "the use of open space for a cell tower was contradictory to the General Plan" and "the granting of this Conditional use permit will not be consistent with the 1995 General Plan because it is not compatible with the objectives, policies, general land uses, and programs specified in the General Plan and will inhibit or obstruct the attainment of those articulated policies"; (3) the proposed use will be contrary to the public health, safety, or general welfare of the citizens of Madera County"; (4) "the perceived health risk of the cell tower could affect...
To continue reading
Request your trial
-
Stand Up for Cal. v. U.S. Dep't of the Interior
...at 769-70 ; Academy of Our Lady of Peace v. City of San Diego , 835 F.Supp.2d 895, 902 (S.D.Cal.2011) ; California RSA No. 4 v. Madera Cnty. , 332 F.Supp.2d 1291, 1301 (E.D.Cal.2003). In reviewing an agency action, the relevant legal question for a court is "whether the agency could reasona......
-
Club One Casino, Inc. v. U.S. Dep't of the Interior
...769–70 ; Academy of Our Lady of Peace v. City of San Diego , 835 F.Supp.2d 895, 902 (S.D. Cal. 2011) ; California RSA No. 4 v. Madera Cnty ., 332 F.Supp.2d 1291, 1301 (E.D. Cal. 2003). A court "is not required to resolve any facts in a review of an administrative proceeding." Occidental , 7......
-
T-Mobile Central v. Unified Gov't of Wyandotte
...at 495-96 (generalized expressions of concern with "aesthetics" cannot serve as substantial evidence); California RSA No. 4 v. Madera County, 332 F.Supp.2d 1291, 1308 (E.D.Cal.2003) (rejecting photographs as "evidence that could reasonably be accepted as substantial evidence"). Cf. VoiceStr......
-
T-Mobile Ne. LLC v. Loudoun Cnty. Bd. of Supervisors
...property values as reasons for denying the plaintiff a permit to build 30–foot antennae to provide wireless services. 332 F.Supp.2d 1291, 1306–11 (E.D.Cal.2003). The court found, first, that the generalized aesthetic considerations cited by the defendants were not supported by substantial e......