City of Santa Fe v. Catanach, A-1-CA-38738

CitationA-1-CA-38738
Case DateNovember 22, 2022
CourtCourt of Appeals of New Mexico

CITY OF SANTA FE, Petitioner-Appellee,
v.

ALBERT CATANACH; INFINITE INTEREST ENT., LLC; and CNSP, INC. d/b/a NMSURF, Respondents-Appellants.

No. A-1-CA-38738

Court of Appeals of New Mexico

November 22, 2022


Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY David K. Thomson and Bryan Biedscheid, District Judges

Erin K. McSherry, City Attorney Marcos D. Martinez, Senior Assistant City Attorney Santa Fe, NM for Appellee

Catron, Catron &Glassman, P.A. Richard S. Glassman Santa Fe, NM for Appellants

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KATHERINE A. WRAY, JUDGE

{¶1} In this appeal, we consider whether Petitioner-Appellee the City of Santa Fe (the City) complied with federal laws that govern how local governments handle applications relating to building, modifying, or relocating telecommunications towers. Respondents-Appellants Albert Catanach, Infinite Interests, ENT., LLC, and CNSP, Inc., d/b/a NMSURF (collectively, Applicant) submitted an application to the City related to a telecommunications tower. Nearly a year later, Applicant concluded the request had been "deemed granted" under federal law and so informed the City. The district court granted the City's subsequent petition for preliminary injunction, denied Applicant's motion to find the request "deemed granted," and denied Applicant's motion to reconsider. We affirm in part, reverse in part, and remand.

BACKGROUND

{¶2} The parties' dispute centers on the City's review of a telecommunications facilities request in the context of multiple governing laws, including the City's permitting process; Section 332 of the federal Telecommunications Act, 47 U.S.C. § 332 (Section 332); the Middle Class Tax Relief and Job Creation Act of 2012 (Spectrum Act) § 6409, 47 U.S.C. § 1455 (Section 6409); and the corresponding federal regulations. See In re Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies (FCC § 6409 Implementation Order), 29 FCC

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Rcd. 12865, ¶¶ 191, 215-16 (Oct. 17, 2014), erratum 30 FCC Rcd. 31 (Jan. 5, 2015).[1]Typically, the City applies Section 332 to review telecommunications applications within the presumptively reasonable timeframes promulgated in the Federal Communications Commission (FCC) regulations. See In re Petition for Declaratory Ruling to Clarify Provisions of § 332(c)(7)(B) to Ensure Timely Siting Review &to Preempt Under § 253 State &Local Ordinances that Classify All Wireless Siting Proposals as Requiring a Variance (Reasonable Period of Time Ruling), 24 FCC Rcd. 13994, ¶¶ 32, 42, 44-45 (Nov. 18, 2009).[2] Applicant, however, invoked Section 6409, which (1) involves an expedited process under federal law and corresponding FCC regulations; and (2) applies to "eligible facilities request[s]," defined as requests to modify an existing telecommunications tower. See § 6409(a)(2). If the application was an "eligible facilities request" under Section 6409, FCC regulations require the City to respond to the application and act within 60 days, a far shorter timeframe than the presumptively reasonable timeframes of 90 or 150 days [3]

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provided for under Section 332. See 47 C.F.R. § 1.6100(c)(2) (2021); Reasonable Period of Time Ruling, 24 FCC Rcd. 13994, ¶ 4 (discussing Section 332 and defining a reasonable timeframe of 90 days for review of collocation applications and 150 days for review of siting applications). Because the specific provisions of Section 332 (typical process) and Section 6409 (expedited process) are necessary to understand the present case, we begin by briefly describing the applicable federal law.

The Typical and the Expedited Processes

{¶3} Section 332 sets out what the City has described as the typical process required of local governments when considering telecommunications requests. Section 332 arose from Congress's efforts "to promote competition and higher quality in American telecommunications services and to encourage the rapid deployment of new telecommunications technologies." City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 115 (2005) (internal quotation marks and citation omitted). In order to meet these goals, Congress imposed "specific limitations on the traditional authority of state and local governments to regulate the location, construction, and modification" of wireless communication facilities,

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including timeframes for the local decision making process. Id. at 115-16. In relevant part, Section 332 states,

(ii) A [s]tate or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request.
(iii) Any decision by a [s]tate or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.

Section 332(c)(7)(B)(ii), (iii) (emphasis added). It is well established that Section 332 does not prevent a local government from requiring an applicant to comply with local ordinances, regulations, and procedures, provided that local law comports with the Section 332 shot clock and other requirements. See Nextel Partners of Upstate N.Y., Inc. v. Town of Canaan, 62 F.Supp.2d 691, 695 (N.D. N.Y. 1999) ("[Section 332] establishes the procedural requirements that local boards must comply with in evaluating cell site applications, but the statute does not affect or encroach upon the substantive standards to be applied under established principles of state and local law." (internal quotation marks and citation omitted)). The "reasonable period of time" under Section 332(c)(7)(B)(ii) for local governments to respond to requests is presumptively 90 or 150 days, depending on the type of request. See Reasonable Period of Time Ruling, 24 FCC Rcd. 13994, ¶¶ 32, 42, 44-45. That shot clock can be extended if the local government determines a Section 332 application is

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incomplete and the government notifies the applicant within 30 days that it needs additional information. Under those circumstances, "the time it takes for an applicant to respond to a request for additional information will not count" toward the 90- or 150-day presumptively reasonable period of time for the local government to respond. Reasonable Period of Time Ruling, 24 FCC Rcd. 13994, ¶ 53. In order for the shot clock to toll, a local government's "request for additional information must specify the code provision, ordinance, application instruction, or otherwise publicly-stated procedures that require the information to be submitted." FCC § 6409 Implementation Order, 29 FCC Rcd. 12865, ¶ 260. Accounting for any tolling, "[a]ny person adversely affected by any final action or failure to act by a [s]tate or local government or any instrumentality thereof that is inconsistent with [Section 332(c)(7)(B)], within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction." Section 332(c)(7)(B)(v).

{¶4} Some applications governed by Section 332 also fall within the purview of Section 6409. As we have noted, Section 6409 requires local governments to engage in an expedited review process of eligible facilities requests and act within 60 days on applications "for [a] modification of an existing wireless tower or base station." Section 6409(a)(2). Modifications of towers, within the context of the Section 6409

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expedited process, include removal, replacement, and collocation[4] of equipment. See id. If the modifications sought do not substantially change the physical dimensions of the tower, notwithstanding other law, the local government "may not deny, and shall approve" the eligible facilities request. Section 6409(a)(1); see 47 C.F.R. § 1.6100(c)(2) ("Within 60 days of the date on which an applicant submits a request seeking approval under this section, the . . . local government shall approve the application unless it determines that the application is not covered by this section.").

{¶5} If the local government takes no action "to approve or deny a request seeking approval under this section within the timeframe for review (accounting for any tolling), the request shall be deemed granted." 47 C.F.R. § 1.6100(c)(4). "The deemed grant does not become effective until the applicant notifies the applicable reviewing authority in writing after the review period has expired." Id. Importantly, the FCC adopted these regulations for Section 6409, but explicitly rejected the "deemed granted" remedy for Section 332 violations. See FCC § 6409 Implementation Order, 29 FCC Rcd. 12865, ¶¶ 281-84, 289; see also Reasonable Period of Time Ruling, 24 FCC Rcd. 13994, ¶ 39. Instead, remedies for Section 332 violations are to be fashioned on a case-specific basis. Reasonable Period of Time

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Ruling, 24 FCC Rcd. 13994, ¶ 39; see also FCC § 6409 Implementation Order, 29 FCC Rcd. 12865, ¶¶ 281-84.

{¶6} With this for context, we return to the facts of the present case.

The Approval Requests and Responses

{¶7} On April 9, 2015, Applicant sent an "application letter" to the City's land use department, specifically the land use director. Applicant requested to

collocate two towers on its building at [an address in Santa Fe, New Mexico] approximately [thirty] feet south of the building on to one tower located on the ground. This does not constitute a new tower; however, a new tower would need to be built to collocate and consolidate the existing two towers. These
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