Subject: [NEXTEL-1] Wireless Cell Tower Case

From: Marcel <[email-masked]>
Date: Wed, 12 Mar 2003 01:47:20 -0500

FEDERAL DISTRICT COURT IN CALIFORNIA GRANTS AT&T WIRELESS SUMMARY
JUDGMENT ON SECTION 332 AND CONSTITUTIONAL CHALLENGES TO A CITY'S DENIAL OF
A CONDITIONAL USE PERMIT FOR A STEALTH WIRELESS FACILITY (From the Cole,
Raywid & Braverman website at http://www.crblaw.com)

      On February 4, 2003, Judge Jeffrey T. Miller of the United States
District Court for the Southern District of California, granted summary
judgment to AT&T Wireless ("ATTW"), upholding ATTW's challenge to the denial
by the City of Carlsbad, CA of a conditional use permit ("CUP") for a
stealth wireless facility in a residential setting. In the same order the
judge denied Carlsbad's cross-motions for summary judgment. CRB represented
ATTW before the Carlsbad City Council and in the federal district court.

      ATTW argued that the denial violated Section 332 of the Communications
Act of 1934, as amended (the "Act"), as well as the Equal Protection Clause
of the Fourteenth Amendment of the U.S. Constitution. The Court specifically
held that the City's denial of the CUP was not based on substantial evidence
as required by the Act, and further ruled that the denial was impermissibly
based on concerns over the health effects of radio frequency ("RF")
emissions - an area that the Act expressly bans cities from considering.
The Court was not persuaded by the technical "expert" whom the City retained
to argue that there were adequate alternative sites available to ATTW.
Indeed, in addition to finding the City's expert not "reliable," in an
earlier ruling, the Court excluded his Final Report as a sanction for
violating the discovery rules and also awarded ATTW attorneys' fees as an
additional sanction. Finally, the Court also ordered the City to issue a CUP
for the proposed site, noting that "remanding the decision [back to the City
Council without an order to grant the CUP] would allow the city to benefit
from its unlawful decision and would frustrate the purpose of the [Act] that
actions brought under it be decided on an expedited basis."

      Background

      The case arises from Carlsbad's denial of a CUP for a residential
wireless site that was designed to be concealed in three chimneys and a
garage extension at a house located at 7512 Cadencia. ATTW's use of chimneys
to blend antennas into the house architecture was modeled after a Cingular
PCS cite located on the same street and two doors down from 7512 Cadencia.
The City had approved the Cingular site in April 2000 without controversy.
ATTW chose the Cadencia site only after the City rejected its initial
application for placement of antennas on a San Diego Gas and Electric
utility tower, an application opposed by residents on the basis of
RF-related concerns. ATTW's Cadencia application met the same vigorous
opposition at the Planning Commission and City Council and for the same
reasons. Residents spoke openly about the health effects of RF emissions.
They coined the phrase "Antenna Alley," a euphemism on which the City tried
to capitalize in its denial resolution.  One resident who organized the
opposition testified that the residents' fear of RF was "palpable" and when
later pressed by the Mayor to explain her aesthetic concerns, her only
comment was that she objected to the "philosophical aesthetics" of the site.

      On appeal to the City Council, ATTW battled to a split vote of 2-2,
with the Mayor withholding his vote until he was able to obtain an RF
emissions report from Cingular about the RF exposure levels of the adjacent
wireless facility. If the report came back favorable (i.e., showing that the
site was in compliance with FCC exposure standards), the Mayor said he would
support the ATTW CUP. The Cingular report came back a few weeks later
showing that the RF emissions from that site amounted to 1% of the FCC's
maximum permitted exposure levels. Nevertheless, facing a room packed with
residents and signs saying "Protect Our Children," the Mayor voted against
the ATTW CUP.  In so doing he admitted on the record that he was voting
against the site even though federal law prohibited the City from denying
the CUP based on RF.

      Summary Judgment Order

      The Court placed the burden of proof on ATTW to support its claims
under Section 332.  Even so, it granted summary judgment in ATTW's favor on
all three of ATTW's Section 332 claims.   Specifically, the Court agreed
that the City's denial was based impermissibly on concerns about RF
emissions (Section 332(c)(7)(B)(iv)) and that the denial was not supported
by substantial evidence in the administrative record (Section
332(c)(7)(B)(iii)). It analyzed these two claims together, finding that the
administrative record did not support any legitimate basis for denial and
that the actual basis for denial, despite the City's representations to the
contrary, was the fear of health effects of RF emissions. The Court broke
important new ground on the law concerning RF emissions by noting that even
health concerns relied upon indirectly cannot form the basis for denial of a
CUP under Section 332. Although it did not use the word "pretext," this
analysis clearly supports an argument that if evidence that does not appear
to be RF-related in fact is a cover for RF-related health concerns, it
cannot support a denial.

      The Court's decision also advances the law on substantial evidence
under Section 332. The city asserted, unsuccessfully, that the Court should
limit its review of the record to the actual denial resolution.  But in
addition to reviewing the denial resolution - which contained many
pretextual and unsubstantiated findings - the Court cited California zoning
law for the proposition that it is proper to review the transcripts of
public hearings for statements made by the city council as well as oral
remarks made at a public hearing in assessing the justification for zoning
decisions governed by Section 332. In yet another important holding, the
Court rejected the City's claim that failure to exhaust alternative
locations for the site, purportedly required before and after adoption of
the policy, could itself constitute a legitimate basis for denial.

      Finally, the court upheld ATTW's related claims of unreasonable
discrimination (Section 332(c)(7)(B)(i)(I)) and violation of the Equal
Protection Clause of the 14th Amendment. The Court described the Cingular
site as the "model" for ATTW's site two doors away and ruled, therefore,
that there was no basis for granting the Cingular permit while denying the
ATTW permit. Under the Court's Equal Protection analysis, the City acted
arbitrarily and unreasonably by, inter alia, allowing residents' concerns
about health effects to govern the outcome and imposing policy requirements
on ATTW's application that were not in existence when ATTW's application was
deemed complete.

      Trial on the remaining counts is set to begin on March 25, 2003.  The
judge has requested further briefing on the issue of whether the City
Council and Planning Commissioners can be held liable for monetary damages
for violating ATTW's civil rights under the federal Civil Rights Act.

      Please let us know if you have any questions concerning this case or
if you would like a copy of the Court's decision.

Your use of Yahoo! Groups is subject to http://docs.yahoo.com/info/terms/