Firstenberg v. City of Santa Fe

• Decision Date: 25 April 2011
• Docket Number: No. 11–CV–08 JAP/WDS.,11–CV–08 JAP/WDS.
• Court: U.S. District Court — District of New Mexico
• Parties: Arthur FIRSTENBERG, Plaintiff,v.CITY OF SANTA FE, NEW MEXICO and AT & T Mobility Services, LLC., Defendants.

782 F.Supp.2d 1262

53 Communications Reg. (P&F) 4

Arthur FIRSTENBERG, Plaintiff,

v.CITY OF SANTA FE, NEW MEXICO and AT & T Mobility Services, LLC., Defendants.

No. 11–CV–08 JAP/WDS.

United States District Court, D. New Mexico.

April 25, 2011.

Arthur Firstenberg, Santa Fe, NM, pro se.Mark A. Basham, Basham & Basham PC, Santa Fe, NM, for Defendants.

MEMORANDUM OPINION AND ORDER

JAMES A. PARKER, Senior District Judge.

This opinion addresses, among other questions, the following:

1. Whether the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7), (TCA) ¹ preempts the authority of local governments to regulate cell tower radio frequency emissions (RFEs) on environmental grounds in order to protect persons who suffer from electromagnetic sensitivity (EMS) that is exacerbated by the RFEs.

2. Whether the TCA supercedes the Americans With Disabilities Act, 42 U.S.C. § 12101 et seq., (ADA) so as to prevent local governments from regulating RFEs on the ground that they negatively affect qualified individuals with disabilities as defined in the ADA.

3. Whether the City of Santa Fe and Congress, in their regulation of RFEs, have violated Plaintiff's rights under the Equal Protection provisions of the Fifth and Fourteenth Amendments or the Due Process Clause of the Fourteenth Amendment.

I. The City of Santa Fe's Motion to Dismiss

The issues are presented in the context of a Motion to Dismiss filed on January 31, 2011 by Defendant City of Santa Fe (City) (Doc. No. 16) (Motion). On February 14, 2011, Plaintiff Arthur Firstenberg (Plaintiff) pro se filed Plaintiff's Response To Defendant City of Santa Fe's Motion To Dismiss (Doc. No. 21) (Response). On February 28, 2011, the City filed a Reply In Support Of Motion To Dismiss By Respondent City of Santa Fe (Doc. No. 27) (Reply). The City has also incorporated the arguments made by Defendant AT & T Mobility Services LLC (AT & T) in its Motion To Dismiss Plaintiff's Claims Under Rule 12(b)(6) (Doc. No. 11) (AT & T's Motion), which has been granted by the Court. Memorandum Opinion and Order (Doc. No. 42). Because Plaintiff has failed to state a viable claim against the City, the Court will grant the Motion and will dismiss Plaintiff's claims against the City.

II. Standard of Review

Under Fed.R.Civ.P. 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” In ruling on a Rule 12(b)(6) motion to dismiss, the Court must accept all well-pleaded allegations as true and must view them in the light most favorable to the plaintiff. See Zinermon v. Burch, 494 U.S. 113, 118, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990); Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984). Rule 12(b)(6) requires a claimant to set forth the grounds supporting his entitlement to relief through more than labels, conclusions and a formulaic recitation of the elements of a cause of action. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). To survive a Rule 12(b)(6) motion to dismiss, a claimant must allege facts sufficient to state a plausible claim of relief. Id. at 570, 127 S.Ct. 1955. A claim is plausible when the claimant pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the conduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).

Because Plaintiff is pro se, the Court will also construe his pleadings liberally. Hall v. Witteman, 584 F.3d 859, 864 (10th Cir.2009) (citing Van Deelen v. Johnson, 497 F.3d 1151, 1153 n. 1 (10th Cir.2007)). Nonetheless, pro se litigants must “follow the same rules of procedure that govern other litigants,” and in particular the factual pleading requirements of Rule 12(b)(6). Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.2005) (brackets and internal quotation marks omitted). “This is so,” the Tenth Circuit has explained, “because a pro se plaintiff requires no special legal training to recount the facts surrounding his alleged injury, and he must provide such facts if the court is to determine whether he makes out a claim on which relief can be granted.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). However, a “liberal construction” cannot salvage a claim based largely on conclusory assertions or patently inadequate allegations. See id., and Giron v. Abascal, 2007 WL 2002564, **3–4 (D.N.M.2007) (Hansen, J.) (unpublished decision).

III. Background

Plaintiff resides in the City of Santa Fe, New Mexico and has been diagnosed with EMS. Individuals who suffer from EMS are affected by RFEs transmitted from cell phones and cell towers. (Doc. No. 1–1 at 29.) Several of AT & T's cell towers, also called “base stations,” located in Santa Fe transmit signals that produce RFEs, which Plaintiff contends negatively affect his condition. Individuals with EMS experience symptoms such as seizures, hypertension, heart arrhythmia, severe insomnia, tinnitus, muscle spasms, twitching, eye pain, dizziness, nausea, migraine headaches, respiratory problems, and neuropathy. These symptoms impair their ability to stand, walk, think or breathe. ( Id. ¶¶ 13(d), 17.) Because of his EMS condition, Plaintiff is considered disabled and has collected disability benefits from the Social Security Administration since 1992. Plaintiff also alleges that he is a qualified individual as defined by the ADA.²

On December 15, 2010, Plaintiff filed a Petition For Writ Of Mandamus (Doc. No. 1–1 at 2–11) in the First Judicial District Court, Santa Fe County, New Mexico asking for a court order requiring the City to order AT & T to cease 3G broadcasts and to apply for additional Special Exceptions for 3G transmissions.

On December 22, 2010, the Honorable State District Court Judge Sarah M. Singleton of the First Judicial District Court Santa Fe County, New Mexico issued an Alternative Writ of Mandamus (Doc. No. 1–1 pp. 43–45) (Writ). In the Writ, Judge Singleton ordered the City to

... commence enforcement proceedings, as provided in §§ 14–11.5(a) and 14–6.2(E)(11) of its Land Development Code, by giving notice to AT & T that it must discontinue its 3G broadcasts within the City of Santa Fe within 30 days, and that it must submit an application for a Special Exception for each base station from which it proposes to broadcast such signals, or that it show cause before this court at the courtroom # 250 at First Judicial District Court, 100 Catron Street, on the 3rd day of January 2011 at 3:30 pm why it has not done so.

( Id. ¶ 10.)

On December 28, 2010, Plaintiff filed a Motion To Amend Petition For Writ Of Mandamus. (Doc. No. 1–1 at p. 29.) In the attached Second Amended Petition for Writ of Mandamus (hereinafter, Petition), Plaintiff asked the court for leave to “change the identity of ... AT & T, Inc. to AT & T Mobility Services LLC ... a wholly owned subsidiary of AT & T, Inc....” ( Id. at p. 39.) ³ In the Petition, Plaintiff also asked for a writ of mandamus ordering the City to enforce its Land Development Code (LDC) and to regulate the RFEs from AT & T's base stations. (Pet.¶¶ 19–22.) ⁴

On January 5, 2011, Defendant AT & T, with the City's consent, removed the case to this Court asserting that Plaintiff's claims “raise federal questions for which this Court has original subject matter jurisdiction.” ( Id. 1.) See 28 U.S.C. §§ 1331 (federal question jurisdiction), 1441(b) (removal), and 1446 (procedure for removal).

AT & T operates several base stations in the City. ( Id. ¶ 5) (listing 10 locations). Over the past several years, the City has granted AT & T Special Exceptions under its LDC to construct the base stations. ( Id.) On November 15, 2010, AT & T announced that beginning at 5:00 a.m. that morning, it began broadcasting “3G” signals from its base stations that were previously transmitting “2G” signals.⁵ ( Id. ¶ 6.) AT & T did not apply for additional Special Exceptions from the City before transmitting 3G signals from its base stations. ( Id. ¶ 10.) Plaintiff has experienced symptoms of EMS to a greater degree since the base stations began transmitting 3G signals. ( Id. ¶ 17.)

At a hearing held on November 17, 2010 on a matter unrelated to this lawsuit, ⁶ members of the City's Board of Adjustment (Board) indicated that they believed the Board did not have the authority under its LDC to regulate the transmission of wireless 3G signals if the physical structure of a base station, such as its height, is not altered. (Pet.¶¶ 12–17.) Plaintiff contends that the City should require AT & T to apply for additional Special Exceptions for 3G transmissions because the transmission of 3G signals from base stations that had previously transmitted only 2G signals constitutes a “more intense use” under the LDC. ( Id. at ¶¶ 6, 9, 10.)

Under Section 14–3.6(B)(4)(b) of the LDC an additional Special Exception is necessary for a more intense use of a structure:

The special exceptions listed in this chapter, when granted, are considered granted for a specific use and intensity, any change of use or more intense use shall be allowed only if such change is approved by the Board of Adjustment under a special exception.

LDC, § 14–3.6(B)(4)(b) (2001) (emphasis added). Obtaining a Special Exception requires an applicant to, among other things, file an application, notify the surrounding neighborhood, meet with residents of the neighborhood, and attend a public hearing before the Board and possibly before the Historic Design Review Board or Planning Commission depending on the location. Id. at §§ 14–3.1(A)–(H); 13–6.2(E)(6)(a).

Plaintiff asks the Court to issue a writ of mandamus “directing the City of Santa Fe to commence enforcement proceedings under the LDC §§ 14–11.5(a) ⁷ and 14–6.2(E)(11); ⁸ to order AT & T to discontinue its 3G broadcasts within the City of Santa Fe; and to submit an application for a Special Exception for each base station from which it transmits 3G signals.” (Pet. ¶ 26.) Plaintiff...