Metropcs, Inc. v. City of San Francisco

• Decision Date: 25 April 2003
• Docket Number: No. C-02-3442 PJH.,C-02-3442 PJH.
• Citation: 259 F.Supp.2d 1004
• Court: U.S. District Court — Northern District of California
• Parties: METROPCS, INC., Plaintiff, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants.

259 F.Supp.2d 1004

METROPCS, INC., Plaintiff, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants.

No. C-02-3442 PJH.

United States District Court, N.D. California.

April 25, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Duffy Carolan, Davis Wright Tremaine LLP, San Francisco, CA, Martin L. Fineman, Treg Tremont, Davis Wright Tremaine LLP, San Francisco, CA, for Plaintiff.

Glenn A. Harris, William K. Sanders, City Attorney's Office, San Francisco, CA, for Defendants.

ORDER

HAMILTON, District Judge.

The parties' cross-motions for summary judgment came on for hearing on April 16, 2003 before this court, the Honorable Phyllis J. Hamilton presiding. Plaintiff MetroPCS appeared through its counsel, Martin Fineman, and defendants City and County of San Francisco et al. ("the City") appeared through its counsel, William Sanders. Having read the papers and carefully considered the relevant legal authority, the court hereby rules as follows.

BACKGROUND

MetroPCS provides wireless telecommunication services in the Bay Area. On January 15, 2002, MetroPCS applied to the City for a conditional use permit ("CUP") to build a base station at the Geary Boulevard Mall Parking Garage. Nahmanson Decl. Exh. 1. MetroPCS claims it needs this installation to better serve its customers in the Richmond district. Id.

The parking garage is located at 5200 Geary Boulevard, between 16th and 17th Avenue. MetroPCS proposed to mount six antennas on an existing light pole on the roof of the garage, with equipment cabinets built behind an existing wall. The antennas would be painted the color of the garage. Nahmanson Decl. Exh. 1; see also G642; MetroPCS Opening Br. Exh. A (photo simulations of the installation).

The San Francisco Planning Commission conditionally approved MetroPCS's application on April 18, 2002. G20-G32.¹ The San Francisco Board of Supervisors subsequently received protests filed by approximately 80 property owners representing 58.95% of the land area within 300 feet of the garage, a petition in opposition signed by hundreds of local residents, and an appeal of the Planning Commission's decision filed by a local resident, Robert Blum. G43-58; G-59-60, G61-G149; G209, G210-G484.

On June 17, 2002, the Board of Supervisors held a public hearing concerning MetroPCS's application.² At the hearing, a number of community members and supervisors indicated their disapproval of the application. See, e.g., Tr. 176-77, 180-83. The Board of Supervisors then voted to deny MetroPCS the CUP. G688. Those findings were then adopted in a written denial on June 24, 2002. G694-G698.

MetroPCS claims the City violated section 332(c)(7) of the Telecommunications Act of 1996, 47 U.S.C. § 151 et seq., when it denied the CUP and moves for summary judgment on their first cause of action only. The City has also moved for summary judgment on the first cause of action, claiming it acted properly.

DISCUSSION

A. Legal Standard—Summary Judgment

Summary judgment is appropriate when the evidence shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court will resolve all disputed issues of fact in favor of the non-moving party. Id. at 255, 106 S.Ct. 2505.

B. Written Decision

A local government's decision to deny a request to construct a wireless facility must be "in writing." 47 U.S.C. § 332(c)(7)(B)(iii). MetroPCS claims as a preliminary matter that the City's denial does not meet this requirement.

Courts are split on interpretations of the "in writing" requirement. See, e.g., New Par v. City of Saginaw, 301 F.3d 390, 395 (6th Cir.2002) (explaining the range of requirements adopted); Southwestern Bell Mobile Systems v. Todd, 244 F.3d 51, 59 (1st Cir.2001) (same). Some courts have held that the governing local body must issue full findings of fact and conclusions of law, see, e.g., Omnipoint Communications, Inc. v. Planning & Zoning Comm'n, 83 F.Supp.2d 306, 309 (D.Conn.2000), while others state that merely stamping the word "DENIED" on an application is sufficient, AT&T Wireless PCS v. City Council of Virginia Beach, 155 F.3d 423, 429 (4th Cir. 1998).

In Todd, the First Circuit reviewed these precedents, and noted that "[b]oth of these approaches seem flawed." 244 F.3d at 59. On the one hand, the statutory language does not require detailed findings of fact and conclusions of law, and the court acknowledged that local governing boards are staffed by laypersons and not attorneys. On the other hand, the board must give sufficient information in its written denial to permit judicial review, and the statute requires a denial separate from the hearing record. Id. at 59-60.

Accordingly, Todd adopted a standard that "requires local boards to issue a written denial separate from the written record." 244 F.3d at 60. Furthermore, "[t]hat written denial must contain a sufficient explanation of the reasons for the permit denial to allow a reviewing court to evaluate the evidence in the record supporting those reasons." Id. (but specifically permitting a court to review the record as well). See also New Par, 301 F.3d at 395 (Sixth Circuit adopting Todd standard). The Todd standard thus reconciles both the statutory language and Congressional intent of the "in writing" requirement, and the court adopts it here.

The City here has issued a written Denial separate from the written record, G692-700, which summarizes the proceedings, articulates the reasons it rejected MetroPCS's application, and provides sufficient information for judicial review in conjunction with the written record. This opinion meets the "in writing" requirement of 47 U.S.C. § 332(c)(7)(B)(iii), and summary judgment in favor of the City is granted on this issue.

C. Substantial Evidence

A local government's decision to deny a request to construct a wireless facility must also be based upon "substantial evidence." 47 U.S.C. § 332(c)(7)(B)(iii). This standard under the Telecommunications Act is intended as "the traditional standard used for judicial review of agency actions." H.R. Conf. Rep. 104-458 at 208, reprinted in 1996 U.S.C.A.A.N. 124 at 223 (Conference Committee for the Telecommunications Act); see also, e.g., Preferred Sites, LLC v. Troup County, 296 F.3d 1210, 1218 (11th Cir.2002) (citing Congressional intent and listing cases across several circuits adopting traditional "substantial evidence" standard for review of Telecommunications Act cases arising under § 332(c)(7)(B)(iii)). MetroPCS claims that the City's decision does not meet this standard.

Preliminarily, the parties dispute whether MetroPCS bears the burden of proof in demonstrating that the City's decision is not supported by substantial evidence, or whether the City bears the burden of demonstrating that its decision is supported by substantial evidence. The case law is split on this issue. See, e.g., El Cajon, 83 F.Supp.2d at 1164-65 (noting split and stating that Ninth Circuit has not yet reached the issue); Cellular Telephone Co. v. Town of Oyster Bay, 166 F.3d 490, 496-97 (2d Cir.1999) (noting split and expressly declining to resolve the issue since prevailing party would prevail either way). Because this decision should be evaluated like any other administrative decision, the court agrees with the First Circuit in placing the burden of proof on MetroPCS. See, e.g., Second Generation Properties. L.P. v. Town ofPelham, 313 F.3d 620, 627 (1st Cir.2002) ("The substantial evidence test is highly deferential to the local board"), citing Todd, 244 F.3d at 58 ("The substantial evidence standard of review is the same as that traditionally applicable to a review of an administrative agency's findings of fact.").

The City's decision will be considered supported by substantial evidence if the record contains "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Preferred Sites, 296 F.3d at 1218 (citation omitted); Telespectrum v. Public Service Commission of Kentucky, 227 F.3d 414, 423 (6th Cir.2000); Airtouch Cellular v. City of El Cajon, 83 F.Supp.2d 1158, 1164 (S.D.Cal.2000). This requires "more than a scintilla of evidence but less than a preponderance." El Cajon, 83 F.Supp.2d at 1164 (citation omitted); see also, e.g., Preferred Sites, 296 F.3d at 1218 (citation omitted). In conducting such a review, the court must examine the entire record, including evidence unfavorable to the City. See, e.g., El Cajon, 83 F.Supp.2d at 1164 (citations omitted). The court may only review the material that was before the City at the time of decision.³ Id. If any one ground provided by the City is supported by substantial evidence, the denial is proper. See Oyster Bay, 166 F.3d at 495.

Finally, when evaluating this decision, "local and state zoning laws govern the weight to be given the evidence." Oyster Bay, 166 F.3d at 494 (because Telecommunications Act not intended to preempt state and local zoning regulations). The City's interpretation of its own zoning laws "is entitled to great weight and should be respected by the court unless it is clearly erroneous or unauthorized." Carson Harbor Village Ltd. v. City of Carson, 70 Cal.App.4th 281, 290, 82 Cal.Rptr.2d 569 (1999).

One of the grounds for the City's denial was the finding that "there is no necessity for the proposed six panel antennas to be approved and installed for residential or business purposes in the neighborhood." G696. MetroPCS argues that there is insufficient evidence to support a finding that the Richmond district did not need another wireless telecommunications service provider.

The City is permitted to consider the adequacy of the services already present in an area, and thus the necessity of the proposed services in question, when determining whether to grant a CUP for additional services. San Francisco Planning Code § 303(c)(1) (...