HomeMy WebLinkAbout2003-12-09; City Council; 17406; CUP for AT&T Wireless Services 7512 Cadencia StL7 CITY OF CARLSBAD - AGENDA BILL
DEPT. CA
TITLE:
CONDITIONAL USE PERMIT FOR AT&T WIRELESS
SERVICES FOR 7512 CADENCIA STREET
AB# 17,406
MTG. 12/9/03
CITY MGR.
DEPT. HD.
CITY ATTY.
RECOMMENDED ACTION:
Adopt Resolution No. 2003- 325 approving the Conditional Use Permit for AT&T
Wireless services cellular facilities at 7512 Cadencia Street in accordance with the court‘s order
filed November 26,2003.
ITEM EXPLANATION:
The City Council denied AT&T Wireless’s appeal of the denial of its application for a CUP for its
proposed facilities at 751 2 Cadencia Street following the Planning Commission’s adoption of
Resolution No. 5006 on June 20, 2001. After the City Council affirmed the denial of the Planning
Commission, AT&T commenced litigation in November 2001 in the Federal District Court in San
Diego challenging the City Council’s denial. (Case No. 01 CV 2045 JM (JFS)). After extensive
briefing and arguments by the parties, Federal District Court Judge Jeffrey Miller issued an order
on February 3, 2003, granting AT&T Wireless’s application to overturn the City Council’s denial.
The judge also ordered further briefing on AT&T’s allegation that its civil rights had been violated
by the City Council’s denial. Briefs have been filed and the matter is now pending before Judge
Miller and is calendared for January 5, 2004. Meanwhile, Judge Miller issued his order entering
judgment in favor of AT&T Wireless on November 25, 2003 and ordered the City Council to set
aside its denial of the conditional use permit within ten days and to issue a new one along with
any other necessary permits and actions that may be required to allow the construction of AT&T
Wireless’s proposed facilities at 751 2 Cadencia Street.
Resolution No. 2003- 325
in compliance with the judge’s order and entry of judgment.
is attached to this agenda bill for the Council’s consideration
ENVIRONMENTAL REVIEW:
No environmental review is required for projects that have been denied pursuant to Public
Resources Code section 21080(b)(5) and CEQA Guidelines section 15270, however, the
Planning Director has determined that the construction and installation of small, new equipment
facilities or structures is a Class 32 Categorical Exemption under the California Environmental
Quality Act (Guidelines section 15303). In addition, the FCC requires compliance with radio
frequency power density standards (ANSIAEEE C95.1-1992) for the general public, therefore, the
project will not have a significant adverse environmental impact on the environment. No
additional environmental analysis is required to comply with the California Environmental Quality
Act.
EXHIBITS:
I. Resolution No. 2003-325
2. Order of Judge Jeffrey T. Miller dated February 3,2003
3. Order Entering Judgment dated November 26, 2003
Department Contact: Ronald R. Ball, 434-2891
I
RESOLUTION NO. 2003-325
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF CARLSBAD, CALIFORNIA, APPROVING A
CONDITIONAL USE PERMIT FOR A NEW AT&T
TELECOMMUNICATIONS FACILITY CONSISTING OF A
TOTAL OF 6 PANEL ANTENNAS IN TWO EXPANDED
CHIMNEYS AND ONE NEW CHIMNEY AND
INSTALLATION OF A 240 SQUARE FOOT RADIO BASE
STATION WITHIN A NEW 400 SQUARE FOOT GARAGE
LOCATED AT 7512 CADENCIA STREET IN LOCAL
FACILITIES MANAGEMENT ZONE 6.
CASE NAME:
CASE NO.: CUP 00-36
AT&T WIRELESS - 7512 CADENCIA
The City Council of the City of Carlsbad, California does hereby resolve as
follows:
WHEREAS, AT&T Wireless Services, “Developer,” has filed a verified
application with the City of Carlsbad regarding property owned by Patrick and Vionna
Van Hoose, “Owner,” described as
Lot 486 Of Carlsbad Tract 72-20 of La Costa Vale Unit No. 3,
in the City of Carlsbad, County of San Diego, State of
California, according to Map thereof No. 7950, filed in the
Office of the County Recorder of San Diego County
(“the Property”); and
WHEREAS, the real property owner has signed the appropriate
application and disclosure statement giving consent to applicant to locate its cellular
facilities on the residential property; and
WHEREAS, said verified application constitutes a request for a
Conditional Use Permit as shown on Exhibits “A” - “F” dated May 16, 2001, on file in the
Carlsbad Planning Department, AT&T WIRELESS - 7512 CADENCIA CUP 00-36, as
provided by Chapter 21.42 and 21.50 of the Carlsbad Municipal Code; and
WHEREAS, the Planning Commission did hold a duly noticed public
hearing as prescribed by law on May 16, 2001, to consider said verified application; and
WHEREAS, the Planning Commission did hold a duly notice public
hearing as prescribed by law on June 20, 2001 to approve City Council Resolution No.
5006 denying the Conditional Use Permit; and
WHEREAS, the application of AT&T Wireless Services for a Conditional
Use Permit was unanimously denied by the City Council on June 20,2001; and
WHEREAS, AT&T Wireless Services filed a notice of appeal on July 2,
2001 appealing the Planning Commission's decision of June 20, 2001 ; and
WHEREAS, the matter was docketed for an appeal hearing in the manner
prescribed by law and that appeal hearing was continued for reasons explained to the
appellant and took place on August 21, 2001 in which the Council received the staff
report, evidence, arguments and testimony from all persons interested in the matter;
and
WHEREAS, the Council continued the hearing for the limited purposes of
accepting new evidence on the impacts of an existing cellular facility within two lots of
the proposed facility; and
WHEREAS, the continued public hearing date of September 11, 2001 was
cancelled due to the tragedies in New York City and Washington, D.C.; and
WHEREAS, the continued hearing was held on September 18, 2001 and
the public hearing was reopened for the limited purpose of admitting the new evidence
requested previously and allowing arguments and testimony on the new evidence by all
persons interested therein; and
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WHEREAS, the City Council denied the appeal without prejudice and
directed the City Attorney to return with documents memorializing that decision; and
WHEREAS, the applicant initiated litigation in the Federal District Court to
overturn the City Council’s denial of its CUP application; and
WHEREAS, Judge Jeffrey T. Miller, United States District Judge of the
United States District Court for the Southern District of California (Case No. 01 CV 2045
JM (LAB)) granted the application of AT&T Wireless and ordered the City Council’s
denial of the CUP to be set aside; and
WHEREAS, Judge Miller entered his order granting judgment in
favor of AT&T Wireless and ordering the City Council to grant the CUP within ten days
of this judgment of November 25, 2003; and
WHEREAS, this matter was previously noticed and a public hearing held
on AT&T Wireless’s application for cellular facilities at Tower 173 which was for the
consideration of an alternative to the facilities proposed at 7512 Cadencia Street and
the notification of that hearing included residences within 600 feet of both Tower 173
and 7512 Cadencia Street,
NOW, THEREFORE, BE IT HEREBY RESOLVED by the City Council of
the City of Carlsbad as follows:
A.
B.
That the foregoing recitations are true and correct.
That based on the court’s order of November 25, 2003, the City
Council approves AT&T Wireless - 7512 Cadencia CUP 00-36, subject to the following
conditions:
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ill
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Conditions:
Note: Unless otherwise specified herein, all conditions shall be satisfied prior to building
permit issuance.
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5.
If any of the following conditions fail to occur; or if they are, by their terms, to be
implemented and maintained over time, if any of such conditions fail to be so
implemented and maintained according to their terms, the City shall have the
right to revoke or modify all approvals herein granted; deny or further condition
issuance of all future building permits; deny, revoke or further condition all
certificates of occupancy issued under the authority of approvals herein granted;
institute and prosecute litigation to compel their compliance with said conditions
or seek damages for their violation. No vested rights are gained by Developer or
a successor in interest by the City's approval of this Conditional Use Permit.
Staff is authorized and directed to make, or require the Developer to make, all
corrections and modifications to the Conditional Use Permit documents, as
necessary to make them internally consistent and in conformity with the final
action on the project. Development shall occur substantially as shown on the
approved Exhibits. Any proposed development different from this approval, shall
require an amendment to this approval.
The Developer shall comply with all applicable provisions of federal, state, and
local laws and regulations in effect at the time of building permit issuance.
If any condition for construction of any public improvements or facilities, or the
payment of any fees in-lieu thereof, imposed by,this approval or imposed by law
on this Project are challenged, this approval shall be suspended as provided in
Government Code Section 66020. If any such condition is determined to be
invalid this approval shall be invalid unless the City Council determines that the
project without the condition complies with all requirements of law.
The Developer/Operator shall and does hereby agree to indemnify, protect,
defend and hold harmless the City of Carlsbad, its Council members, officers,
employees, agents, and representatives, from and against any and all liabilities,
losses, damages, demands, claims and costs, including court costs and
attorney's fees incurred by the City arising, directly or indirectly, from (a) City's
approval and issuance of this Conditional Use Permit, (b) City's approval or
issuance of any permit or action, whether discretionary or non-discretionary, in
connection with the use contemplated herein, and (c) Developer/Operator's
installation and operation of the facility permitted hereby, including without
limitation, any and all liabilities arising from the emission by the facility of
electromagnetic fields or other energy waves or emissions.
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6.
7.
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The Developer shall submit to the Planning Department a reproducible 24” x 36”,
mylar copy of the site plan reflecting the conditions approved by the final decision
making body.
This Conditional Use Permit is granted for a period of 5 years from its effective
date. This permit may be revoked at any time after a public hearing, if it is found
that the use has a substantial detrimental effect on surrounding land uses and
the public’s health and welfare, or the conditions imposed herein have not been
met. This permit may be extended for a reasonable period of time not to exceed
5 years upon written application of the permittee made no less than 90 days prior
to the expiration date. The City Council may not grant such extension, unless it
finds that there are no substantial negative effects on surrounding land uses or
the public’s health and welfare. If a substantial negative effect on surrounding
land uses or the public’s health and welfare is found, the extension shall be
denied or granted with conditions which will eliminate or substantially reduce
such effects. There is no limit to the number of extensions the City
Council may grant.
The existing access gate on Cadencia Street shall be relocated to 20 feet behind
the front property line. The access gate must be positioned to allow enough
space for a vehicle to idle outside of the public right-of-way while waiting for the
gate to open. All landscaping disturbed as a result of the gate relocation shall be
replaced and installed to the satisfaction of the Planning Director prior to building
permit sign off.
Developer shall provide proof to the Director from the Carlsbad Unified School
District that this project has satisfied its obligation to provide school facilities.
This project shall comply with all conditions and mitigation measures which are
required as part of the Zone 1 Local Facilities Management Plan and any
amendments made to that Plan prior to the issuance of building permits,
including, but not limited to the following:
Building permits will not be issued for this project unless the local agency
providing water and sewer services to the project provides written certification to
the City that adequate water service and sewer facilities, respectively, are
available to the project at the time of the application for the building permit, and
that water and sewer capacity and facilities will continue to be available until the
time of occupancy.
This Conditional Use Permit shall be reviewed by the Planning Director on a
yearly basis to determine if all conditions of this permit have been met and that
the use does not have a substantial negative effect on surrounding properties or
the public health and welfare. If the Planning Director determines that the use
has such substantial negative effects, the Planning Director shall recommend
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that the City Council, after providing the permittee the opportunity to be heard,
add additional conditions to reduce or eliminate the substantial negative effects.
The Developer/Operator shall comply with ANSMEEE standards for EMF
emissions. Within six (6) months after the issuance of occupancy, the
Developer/Operator shall submit a project implementation report which provides
cumulative field measurements of radio frequency (EMF) power densities of all
antennas installed at the subject site. The report shall quantify the EMF
emissions and compare the results with currently accepted ANSlllEEE
standards. Said report shall be subject to review and approval by the Planning
Director for consistency with the Project’s preliminary proposal report and the
accepted ANSI/IEEE standards. If on review, the City finds that the Project does
not meet ANSVIEEE standards, the City may revoke or modify this conditional
use permit.
Developer shall submit to the City a Notice of Restriction to be filed in the office
of the County Recorder, subject to the satisfaction of the Planning Director,
notifying all interested parties and successors in interest that the City of Carlsbad
has issued a Conditional Use Permit by Resolution No. 2003- 325 on the
real property owned by the Patrick and Vionna Van Hoose. Said Notice of
Restriction shall note the property description, location of the file containing
complete project details and all conditions of approval as well as any conditions
or restrictions specified for inclusion in the Notice of Restriction. The Ptanning
Director has the authority to execute and record an amendment to the notice
which modifies or terminates said notice upon a showing of good cause by the
Developer or successor in interest.
C. This Resolution shall take effect 35 days after the Notice of Exemption is
posted by the County Clerk pursuant to the California Environmental Quality Act. This
Resolution supersedes City Council Resolution No. 2001 -309.
NOTICE
Please take NOTICE that approval of your project includes the “imposition” of fees,
dedications, reservations, or other exactions hereafter collectively referred to for
convenience as “fees/exactions.”
You have 90 days from date of final approval to protest imposition of these
feedexactions. If you protest them, you must follow the protest procedure set forth in
Government Code Section 66020(a), and file the protest and any other required
information with the City Manager for processing in accordance with Carlsbad Municipal
Code Section 3.32.030. Failure to timely follow that procedure will bar any subsequent
legal action to attack, review, set aside, void, or annul their imposition.
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You are hereby FURTHER NOTIFIED that your right to protest the specified
feedexactions DOES NOT APPLY to water and sewer connection fees and capacity
charges, nor planning, zoning, grading or other similar application processing or service
fees in connection with this project; NOR DOES IT APPLY to any feedexactions of
which you have previously been given a NOTICE similar to this, or as to which the
statute of limitations has previously otherwise expired.
PASSED, APPROVED AND ADOPTED at a regular meeting of the City
Council of the City of Carlsbad, California, held on the 9th day of
December 2003 by the following vote, to wit:
AYES: Council Members Lewis, Finnila, Kulchin, Hall and Packard
NOES: None
ATTEST:
(SEAL)
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UNlTED STATES DLSTWCT COURT
SOUTHERN DYSTRICT OF CALIFORNIA
AT&f WTRJ3LESS SERVICES OF CALLFORNU LLC, A DELAWARE LIMITED LIABILITY COMPANY, D/B/A AT&T WIREtESS,
PI aintiff, vs.
CASE NO. 01 CV 2045 JM(LAl3)
ORDER GRANTING M PART AND DENYING IN PART PLAINTIFF’S MOTION AND CROSS-MoCrrON FOR SLFMlvlARY ADJUDTCATION, DENYNG DEFENDANTS’ CROSS- MOTION FOR SUMMARY ADJUDICATION
Defendants.
I. IlYraoDUctlON
PlaintiRAT&T Wmless (“ATT’) (successor in intatst to GTE) has filed suit under, inkc ab,
;ectioa 704 of the Telecommunications Act of 19% (CTCA”) (47 U.S.C. 5 332(c)(7)) allplsihs that the
3ty ofcarlsbad. as well Q&C~ city employees acting in Lhcir afiicial crrpacitk (cumulatively tho
‘city’) unlawFully donid An’s application fir Conditional USC Ped (“Cop”) No. 00-36. ATT
’equcstccl &e CUP in ordcr to plecc a ”srcdth” wirelcss antenna site on residentially zoned property
Ocdied at 3512 Cdda Street. The kcy issue for purposes of thc pending mo6ons,’ ig whekher the
atties have filed cross motions for summary adjudication on counts one and three, and
a mobon for smmary u$&athn on comb eovcra &ugh tea. Neither parly secks tunmnry adjudication on counts four, fiv~, and six. The daime Tar which sutnmary adjudication is
i0ugh.t arc as follows: (I) cmnt om- 47 U.S.C. 5 332(~);)(7)(B)(iv)- prohibition on dmyingpdt to :onstruct a cell site based upon RP cmlssions: (2) count two- 47 U.S.C. 0 332(c)(7) mhibition on unreasovblt discria?hation between cellular pmvjders; (3) count three- 47 E.S.C. § 132(~)(7)@)(iii)- requirement of substantial evi ce for dcnying cell siie applicutian:, 4) count
,even- procedural due pmces unRCafi fcdcral constkutiom; (5) count e&% equal
. .. I
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City’s fitidhgs denyjng ATT’s application for CUP No. 0046 am supported by substantial, evidence
in the ndministmlive record and wcm noL irnpermisdbly based QII public concan over the heal@
EgIXts of radio frequency (“RF”) cdssions hm the sile in violation of the TCA. Pursuant to Local
Ruler 7.l(d)( 1). the court finds Ihcsc motions appropriate fbr dcchioa wilhout oral zugumenl
TI. BACKGROUND
In early 2000, GTE applied for a condiliond use pcnnit (TW”) in order io place a whlass
personal ocrvicc facility (“cell site” or “wireless site”) on San Diago Gas and Electric’s Towar 173.
A cell site at that location wadd have allowed GTE to fill its cellular emvice coyerage gap at the
castem end of the La Costa Valley (Le., Cadancia gap) llnd along Santa Fe mad. The airy, hoivever,
ddad GTE’s application thereby foning AT” (GTE’s successor in interest) to replace the pwposed
Tower 173 site wirh two separate sites: uno site to cover the Cadoncis cowage gap aad a semnd site
IO cover the remaining portions of thc gap on Rancho Smta Fs Road,‘ To cdym thc Cadencia gap,
ATT submitted CUP application No. 06-36 for a cell site at 7512 Cadencia Smt; the sitc would
inoludc six antennas and a radio base stnh .to bc housed on rho privately owned property? The
antema nnd basa dation wctc desighod to look like part of the aisting house: fbu antcaw would
bc placed on thc two cxlsting chhincys with the remainhg two antcnnw built into a f&c third
chimney designed to look like the existing chimneys; the do base station would be housed in a 400
Squm foot extension to the CxiSTing 800 square fit garage? This design wa4 modeled on a very
similar ad1 site owned by Pacific Bcll (‘Tm Bell”) located on a house a block a&y ftom ATT’s
proposed silc for which the city had previously grmtcd PEG Bell a CUP. Like lhe Pac Bel) she, ATr‘s
antemas were desjgncd to be embedded in the Chimy, and thus invisible to Lhc eye, witla &e only
difference between the two sites bnhg that Fac Bell’s radio quipmat was housed on wall-momcd
ptotectiomunder Cdifbrnia 4 Wera! coflstitutions; (6) aunt niue 42 U.SC Gal. Code Civ. hc, 1983; (7) rnuntmtcn-
1094.5- adminislrative mandamus.
AR, p. 106; 108. ’ AR, p. 468,345.
‘ AR, p~. 417,628-635.
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* AR, Part K, pp. 3,6444, The platrning department Aport also contained the &i?srnePt lhat were no feasible dlematives because, as the city planner stared befm the lanning oommision, the plRnning de aRmcnt uccupted the ;Ipplicmts verbal rcprcsentatrons &at I% ere were no feasible
alternatives. d, p. 346; Part IX, p. 64.
'I AR, p. 346.
* AR, pp. 108-1 l+ Part ZX, pp. 30-62.
' hR, Part IX, pp. 30-62.
lo One bthcr resident besides Jon Netenbag expregsd ae~thdc conems, yet Zila conccma Icalr with the aesthetics of green utility ~ES added long thc sidewalk to occomrnodak cell sites; I mwevcr. ATT st9cd in maponse that its site dcfi~lirtly dld not mqm such a box. AR, Part TX, pp, , 53-55,77- In adhaon, ofher residents expwsly stated that msthotica we= not 8 pmblun kcxiuse rhc dditiona wm "in a housc similar to whai wa aU Wc in." AR, Part rX, pp. 40,49.
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cabinets on the back of the house rncher than being cncloscd in a fake gdrege,'
On May 16,2001, the planning commission hearing On ATT's appkation wat3 held. Christer
Westman, the ciry planner on Lhie application, mmcnded that the pluming wmnlission approvc
ATT*s appliaatian and supported thc rccorrunendatlon with findings of tho planning dcpment.
Specificdy, the dcpaltt~ent found rhc site (1) had no aasthdc efkts a5 it could not bedisthpkhed
fbm bcjng a part of lhe house, (2) would only require ant (0 two trips per month by ATI' to maintain,
(3) did not crcale noise that would bvudc into the neighborhood, and (4) lacked any envirOnmenta\
of facilities are necessary and ussenthl to thc inIia.scructuraL support of urban Land USCEI.'~ Sixteen
residents tcstffied in opposition w the application, ten of whom expressed concerns over the health
effects that RF emissions could cause, notPrithstanding the rcsidcnts having been informed that tbc
planning comrnission could not baec its decision on such ~ancerd~? Residents also latiflcd 'to
eoncerns about aesthetics, whether altemativc sites had been coneidcred, and over rbe ma becoming
"-antenna alley,'" Of the two residents who Wed aesthetic concerns, only Jon Ncrcaberg testified that
the aesthetics of the project bothered him sincc it would extend the gacagt closer to his hou~e.'~ ln
addition, more than one residmt expressed can- OYW prop~rry values deoreasing based an possible
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' Pldntiff s Motion for sum mar^ Adjudication on Counts and Vff b X Ex. 4, p. I.
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health effects from the cell site’s RF emissions.” The planning commissioners, while stating mat they
could not consider the possible health efTec& caused by RF emissions, did ask the applicant and thc
city planner hut such missions hm tbe proposd facility.” Ultimately, the planning commissloa
denied the applidon on the aprcssed concms ofthc rasidcnts (e,%., aestholios, commercialization,
denoasc in propertY values, etc.) rcsulling in ATT’s appcal to the city council.
*
On August 21,2001, Ihe first c~Q council mhng was held regading ATTs prapwsed cell
site. when the city counCil opencd the hearing to public comient, Ms, How, who was the lead
reeident at both the city coulleil and planning commission hearings, testified about concern over the
unknown cumulalivc health cffbcts causd by RF emissjons rrom &e pmposd cell site, the Par: Bell
site, and ham radio in the neighborhood. In response, the mayor requested thc city attorney’s legal
advice on Whather such edssiens could be considered since ha thought the planning cbmnr;sSion had,
considered tho RF emissione in, denying the Dpplica~ion.’~ The oily rrttomey responded by stating thar
the city could not consider the RF emissions to the extent they did not exceed thc parameters set by
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the Federal Communications Commission (TCC”).“ When the mayar then asked r;ort6n rtsidcnts
abut aesthetic concerns, tho response was that there was a ‘>philosophical” oppositba to Lhe aeshetics
Of thc additions and hat the additions oould not be’rnadt out from the road duc to the pk~perty’s
~fcvation.” The clecisian on the appeal was delay4 because the mayor wanted -her Infomation
mncerniry: thc RF ernisrim from the.Pac Bell site stating that if the nmissions were mywherc near
iegative (presuarably in cornparkon to the FCC guidchas) he would O~BS Am’s application, bur
” Onc plannia ccsmmissioncr exp-ty relicd on the copcern over ,decrease in due to thc possible ha 7 th dIbccs of RF enmsions in vomng agatnst the applicdon. 03.47.82.
‘I AR, Pan IX, 4:6-17,25:9~23,69-70.
l3 AR, Part vu, pp. 2 1-22. ‘‘ AR, Part VU, pp. 21-22.
Is A& Part Vn, pp. 19,23-24. W. Nerenberg again statad his opposltion based an atsthctIcs,
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if pOSitiV8 would votc for appr~val.’~
In the interim, the mayor received a number of letters, from peoplc who did not testify eithcl
before the city council or phdng commission, largely stating that thcy we= opposed to An’s
application dueto the unknown health efli3cts and =king why allemate sites could not be explod“
At thc next and bl hearing on September 1 8,2001, the mayor voted to deny thc applicaRion,
even though the Pw Bell emissions were onc percent olthc allowed emissions under FCC guidelines.
The mayor bud his vole on cuncernS over more cell Sites being located h lhe neighborhoad and the
lack of city guidelines on the issue.‘’ The cauneil ultimately denied Am’s appd by a three to two
vote. The mayor closad the hearing by statja %o nbed for a repa* ou whal the city can and cannot
legally do regarding cell sild applications and added “1 have a mal problem with violating the nrlcs .
. . but I thick that arc rules and ulere are cdn things you have lo look nt as far as what is best for
our comnimity in
On OcrobR 3,2001, aAsr the final hewing, but befare the Wtitlea motution, Carls’bad Policy
No. 64 we %d~pted.’~ Tha ciLy expressly incorporated polioy No. 64 in its resolution dulying
An’s CUP application rcquhhg that ATT seek "guidance" from Qu palicy in making a new
application tbr a cell site. ATT responded by filing this action and bringing two separate motions for
summary adjudication: (1) om counts onc and tkeq to which lhe city filed a cross-motion; and @)‘on
aaunts two and seven through tcn.
Ur- DISCUSSION
A court may grant summary judgment when them are no genuine issues of material fatt ad
AR. Pap VU, p< 43. Thc ci also requested a study on the combined Rp emissions ham the Er lb
proposed ATT site and the existing ac Bell sitc. AR, pp. 246250.
I7 AR, p~, 149-1 58.
I* AR, Part VI, p. 6,16. The city requested that Pac Bell prdvide it with a stuw of its RF
” AX Part VI, p. 18.
emissions and requestwfa study of the combined RF emissions fhm the FCC. AR,
Thc city argucs that Policy No, fj4 was not adopted on this date, but rather mertly put into Writing since it had, allegedly, cX;skd throughout the appllcdon process by ATT, scc ~~SCUE&OEI a.
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the pa@‘ is antitlad to judgment. e9 a mailer of law. Fed. R. Civ. P, 56(c); Y. Cam
477 U.S. 317,322-23 (1986); v S# ,261 F.3d 912,919 (9th Cir.
2001). Additionally, summary adjudicdon ie oppropriara on dismre claims where no geauiae issuer
of material Pact exist as to that claim. Fed. R Ciu. P. 56(a), Furthermore, a claim alleging a iack o
substantid evidence for a Paning deeision in violation of thc TclecoTamuLLications A& uf lS9( C
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(‘TCA”) is especially amenable to dccisioh at summary judgment since the court’s o~ly role is tc
detenine if substanlial svidence exlsts within ~c administrative record that would supp~ zh~ mw
hision. Sce,e.e, To- 166 F,3d 490,495,497 pd Cir
1999) (fining grmt of‘ summary judgment where district court mviewed admlnistratke record foi
substantial evidence under thc TCA); 2
297 F,3d 14, 22 (1st Cir. 2002) (under TCA substantial evidencc claim, court mexcly review6
administrative record to determine if tvidetrae exists lo support B pasonable conclusion); Airtdllch
-, 83 F. Supp. 2d 1 158,1164 (S.D.Cal.2000) (granting su11011ls~1y j udgnlenl
on substanlial evidence claim under TCA basad on review of adminisbath record).
.I
Prior to addressing the mnjtd of the motims, the court addresses Am’s malion in limine to
exclude the testimony of the city’s sob expert, Jonathan Kmer, on the issue of VIE allcgd suitability
of seven1 altemntbe locatllam fer Am’s prapbscd fnc%ty.*’
The admissibility of expert wimess testimony is govkned by Federal Rulo of Evidentm
(‘7‘RF’) 702 which atatcs:
Tf scientific, technical, or other specialized laowledge *ill asdn &c mer of ht to understand ulo evidfnce or to dCtOmine a fact in lssua, a witness qWd as an c?rpcrt by howledgo, ekiI1, axpdeme, training, or ed~cation, may testify thcreto in rhe fonn of UI opinion or otherwiss, if (1) I& testimony is based upon suflioibnt ik&a or data, (2) the testimony js the product ofreliable principle8 and mclhada, md (3) the witness
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ha~ applied the principles and rnelhods reliably o the faus of tho cp88,
Fed. R Evid. 702. In thc watershed casc of- v , 509 US. 57
(1993). thc Supreme Court esrabljshed rhar tha tdnl court must act as a gatekeeper to $n-evml “juri
science” %IZI entciing the courtroom in the guise of ”cxpert” taximom.
,-, 509 U.S. 579,592-93 (1 993). While thc trial judgc’s inquiry under FRE 702 docs no
focus on the conclusions gcncratCd by e- witness testimony, the nial judgu’s dury ia to mure !ha
the scientific principles that und.crlie Ihc conclublbns are both rclevant to the issue at hand and reliablc
Id. at 595, Addirionally, the Supreme Court reccntly held in 526U.S
137 (1 999), that Ihc principles established in Daubert apply with egua) fbrca to expert tet&ony whicl
IS based,upon cxpdence and training rather than on scimcc per sea L
526 U.S. 137, 149 (1999) (holding that FRE 702 applics to all oEem of expat vimcss tcstimonj
rquiring that thc trial corut detcnnine the reliability and relevance af the offered submissions); Sa
als~Ftd. R Evid. 702, AdvisoryComm’tte3Noles (2000Amendmats) ~amendmentaffInnsthr Qia
courr’s rolc as gatekecper and providcs somc general standards thar the trial court mum usc to uses:
the reliability and helpfdness of pml’ked expert tsstimcmy,”).
In My cvclot. expert testimony, whethar experience bad or slrictly sciatific, must be mcliable,
As explained by rht Nintb Circuit, wherc the expert opinion is not a pwdwt of independent research
unrelated to the current lewsuib ‘?he piQ proffering it must come forward with other objwtiuc,
verifiable cvidence that the testimony,” is reliable. 5 ,43 F.3d 131 1,
231 7- 18 (9m Cir. 1995) Cw) (Ninth Cmuit opinion on mand hni
SO9 U.S, 579 (1993)); sficdx~~ - 134 P.3d 142 8, 1422-23 (9th Ck.
1998) (holding expert testimony properly excluded under Qdsd where testimony wag pragacd
soiely cbr litigation, lacked any suppohng mearch, and thm was no showing of support fat whcss’
conclusions in peer-nsview anicles or any outsido teseamh); Fed. R, EvSd. 702, Advisory Committee
Nafes (2000 Amendments) (pq putting forward axpcrt has the burdcn ofproving by a prepopdmce
483 US. 171 of the evidcnct hac thc testimony U rclinblc and rclevwt) (&rig
(I 987)). In dercnninhng ifubjcctive, vtnfiublc eVidenct supports the mpcrt‘s k&ony, the court
may GOnSider whethcr the methods used to gcnerare the expert opinion haw been subjected to paw
.I
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review and publication; whether rhe tachniquc CM be tested; the known potential rate of anor, an
whether thc expan's methodology-is generally accepted within his or her ficld of #rpertise.
Daubcrt, so9 us. at 593-94.
In this case, even assumhg Kramer is a qualitied expert in radio hqueqy engineering, &I
city has failed to show by a prepondmncc cftb evidence chat Krmer's conclusions in ;he tcntativc
rcpm ad in his August 27,2002 deposition are rchablc. First, thc ciry does notpnxent my ddenci
th Kramcr's testimony and conclusions resulted from indqendont research Wannccltd. wlrh W
cse, Rathss,' the ciry hired Kramer with thc qxpms purpose that he study ATT's technica
requirements and Teach conclusions about possible alternative locationa fbr Al'T's wireless pheni
sire." Second, Lhc ciy admits Chat Izrsmer's conclusions abour possible altemativc aitw were basm
solcly on a comparison of rho dbcutnenra provided him by ATT imd his physically visithg potentia
%ltc.mativ:ve sixes. While Kramer opincs on rho availability of potential altcmat~ve sitm in UEht ei
4TT's covarage pals and scmh ring:3 Kcamernever prescnts any objjctivc criteria hy which the
;owt may evaluate his opinion. This finding Is reinforced by Kranor's doposition testimony where
hmer statas he basis for his conclusions that olber call sites were potentially available: 'It is dam
:o an expcrt ihar these wcre potential IMZ bear full inVcSrigali0n.'"4 What is notably lacking,
iespite the city's assemion to lhc contray,js any evidence hat explains for the court how the wiw
Jf she documeats allowed Kmcr to conclude Ihc mailability of alternative, sites. Consequently, the
'' The city presents a somewhat oonfusing argumanr on exactly what purpose Krarner's
wireless facili ; ad, (b) AT&T feIl!elow the ctlseom.my standard in conduoling a due diligence indg&ll for suitable locations other than 7512 Cadcneia 3an Dcfcndants' Designation of Expert, 2:4-10. The ciQ concedes that Kmmer Will not give an )pinion on the second matter, yet states in its briuf that Krarner "was not rCtd?cd 0s an expert to find illemative sites, bur to opinc on rho qllnlity of Am's search for allarnatrvc ates." Defendmts' @position to Plaintire Motion to %dude Kmcr, 7rl-3. Thus, the city appam to make mvadicto statements to the urpose of Kramcr's testimony. Furthemarc, the tenfative rcport sued by l&mer s ecifically ma c es conclusions about the bcstdtc and other altcrnarlivc sile5 for 47"'s wireless facihes. Jystud Decl. in Support of Plaintif€% Motion to Exclude, Ex. 13, pp. 7-8. 1s such, Kryner's wslimony does, in fact, focus on finding pokntul allemalive sitcs.
A "search rinf is the area mapped out by he wireless phonc sewice pro~dcr within which kc provider has detcnnJnad a wireless site is necded to provide coll phone service OT “coverage."
:cstimany was to serve in this atwe. The city designated Kramu as an ,mpd on two imew
, (a) Th suirBbls locations othar than 75 12 Cadenaia uust for placement'orAT&T's
'* Ddendank' Oppodtion to Plaintiffs Morion to Exclude, Ex. B, 35:15-36:5.
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reliability of Kramer’s conclusions are miously compromkd, and the court accords thc conclusion;
vinually no weiat at all.
af 47
Burdelr OI Proof
Under the TCA, Congross cxplidtly lequlrcs local governments to stace in Wncing any ddar
of a requesl to place or construct a parsanal wireless scrvicc hcilily ad base the decision on
substantial evidence in awitlen record?’ An initial issue raised in the briefs ia which party has the
Men of preof for establishing that the Wsion is or is not supported by substantial rrvideuce. Gvam
he text and legislative history of ihc TCA, Ihc court concludes that Congress intended rhM thn pennit
applicanr bear the burden ofshowing a lack of substantial evidence for the decision” Under
332@)(7)(A), Congress tmkcs cleardlal nothing in the TCA is mCBnt io praampt local govsmment’s
ability to exercise its tradilbnat Zoning authority in regulating the plamr~ent of cell sites axcept for
&e specific! limitations stared in 9 332(c)(7). One of the rqukcmenzs Cmgrcss plaeed on govmmcnr
n this regard is to predicate the den5al of a permit upon a w&m deeision supported by subsbltial
25 Thie section discusses tbc cross-motions on counts 1 and UI ‘ointly she the key issue i6 whether ur not substantial evidence cxkta to support the dy‘s fin d ngs donyinp ATT’s permit spplication,
76 Seetion 704 of the TCA states h ~lcvanl part: Any decision by IL Stake or local government or instrllmentality thereof Eo deny a request to law construct, or modlf)r penondl wireless semw failitis$ shall be in writing dsuppmted by substdial Evidence contahed in a wfi’ttm recard. 17 U.S.C. 8 332(~)(7)@)(iji).
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evidence. This hs been the standard for revie* of governmen1 zoning in CaCifornia for some time.
u-vv , 25 Cal. App. 4th 963, 969 (1994) (applying substantial
evidence standard to the denial of plaintiffs applioatioa for a conditional, use pdt)- The TCA
s$nply extends the SUbStdd evidmce standard traditionally applied by state law. This legislative
intent is clcarly reflcctcd in the legislative history orthc TCA which provides ‘”subqtanrid ovidcnce
contained in a written record’ is the traditional standard used forjudiaial revlew of SgenCJ’ actions.”
H.R Confemce Report No, 10448, p. 201 (1996). Given Coqgess’s adoptiun of the traditiona
substantial evidmct sfandad and the -licit statement lhar 104 government continuc to generall: I
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exercfsc its braditid zoning authoriv, the court finds, in the absence of con- autnoriiy o
persuasive argument, that Congress intended io place upon rho applicant in a case such as this lhc
burden of establishing a particulm decision is unsupported by substantid evidence.
Substantial evidence
As has oft bm rqmted, subsrantial evidence “maan[s] lcss than a preponderance, but mon
&. v TV ,166 F.3d 490,494 (2c than a scintilla of evidence.”
ck. 1999) (applying aubstmtbl evidence standard under thc TCA); -5
WHdQu, 1 97 F,3d 64, 7 1 (3d Cir. 1999) (cilations omitted) (eane). In other
words, substantial evidence “‘means such relcvant evidcnos 88 a rcible mind might accept ~b
adequate to suppoxt a conclusion. ”’ Qysl&hy, 1 66 F.3d at 494 (m -,
340 U.S. 474,479 (19Sl)). Under this slandard, thc court my not consider cvidenaa outsidc thc
sdmkdstrative record nor overturn reasonable dctcnninatians by the 104 authority cwn if eviddanec
o the conw cxigts. & Howwet, in applying the sub-lid evidence srandd, the OOU~ applies
;omn-~on mn~t and need not “accept aa substantial cvidence impossible, incmdiblc, unfeasible, 01
implausible tcstimmy.“ ,83 F. Supp. 2d 1158.1164 (S.D.Cal,
!OOO) (applying &e substantis1 ovidemc standard undcr47 U.S.C.Ԥ 332(~)(7)(B)(iii)), Addi~onally,
he court review xhc atire record in de(anaining ifsubstantia! ovidence e&s including widonce
&ich contradicts the findings. -&XIAS , 197 F.3d at 71; 166 F.3d at
$94.
In this caw, appkatiori of the substantial cvidence standard ia temp& by the limhdons in
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the TCA thaprahibit bod govcmment from denying an application to cansbuct a cell site basedupo~
the environmental effeds of radio frequency (“‘W) emissions firm the proposed whlass slra:
No State or load govmont or inStmnCMdity thereof may regulate lhe lacement, constmction, .and modification of personal wireless semior Ilsifitlcs on the t asiS of the envlronmcnul effccts of radio fitquency emissions to thc extent that such fkilities comply with the Fedcpal Communicadon] COmmiss~on’s regu1auons concerning such ernissiom.
47 U.S.C. Q 332(c)(7)(B)(iv). Significnntly, the conference tepa on the TC4 adopted by Conpa
makes clew that local government my no1 indirectly baa its ddsion to dcuy an application to place
a cell site upon concm mer the enviromncntai eflccts of rcrS emisstom:
The conferees intend section 332(c)(7)(B)(h) to prcvcnt a State or local govcrnmcnt or its lmstrumentalitias from basing the ngulation of Ihc Iaciccmcnt, consbuctian, or modification of CMS facilities rilreak) or indirccrfy on t K e cpvimnmcntal effects of radio frqucncy emiasions if hose fwililies comply wth the Commission’s regularion&..
N.R. Confercnce Rcport No. 106458,201 (1 996) (emphasis added). Given this Ic@slativc history,
he caurt concludes that concern over Lhc decrease in prbpcrty v81ucs my not be consided aS
substantid evidence if the fear of property value depredation is based on ooncsra ovcr the health
effectd’ causad by RF emigeions. Thus, dircct’or indirect wnaom6 ova fhc health effmts oFRF
emissions may not serve as aubsEanlia1 evidence to support the dcnid of an application: Accordingly,
when public testimony in the record ‘5s almost cxclusively dh- t6 hcalth effecb, tl~ero must be
substantial hdcnce of same Icgitimate moli for rejecting thc applications to avoid the conclusion
that the denials were based on the impedsslble hedtb sffacts W’md.” m, 166 F.3d at 495 -- - 29 F. Supp. 26 915 (C.D. Ill, 1998)). In
this case, &en, the court mu& examine the profiered findings to ddsmzlnc if (1) they are baed on
legitimate concwns and (2) substantid evidcnce supports those ~on~rns~~
’
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ZY co. - 166 F.3d 490, 494 n.3 (2d Ck. 1999) @olding ~mcrn o-” from RI? emissions included conccm over health eRecCs caused by such d~ons),
not Lo divine the intent of the council members in admimstrative record to see if substanrial evidence 14 Cal. 3d 768,772 (1975) (holding plaintWcannor akin 4 decision to deny a use parrm’~ application
E’ stamenll at var;Pus he,- since such
statements arc part ofthe administrative record before tho caurt. h Harris v Cw
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The city makes a numbcr of arguments that substantial evidence supports legitimate fhd5ngs
Generally, the findings alleged to support the ciry's dccieion can be placed into the two following
categories; (1) lack of cornpalibllky with the surrounding neighborhood; and (2) lack of evidena
presented to thc councll about the unav#i'lnbility of alternative sires.
The city argw that substaJlrlal ewdcnce supports thc find- that placing the cell site m'thc
neighborhood wauld be in conflkl with rhc chdraaer of the area because of aesrhetlc concerns,
possible dccllnc in propcny values, and an iptinsificatian of uses due to the fml that another cell site
sxisls aboul a block away. However, after rcvicwing the kdministrative record as a whole, thac
findings are not supparted by subsrantid evidence,
The public testimony before both the planmag commission and city council emphasized
:omunity concern ovcr the health effwts df the RF dSi~ns.~ Additionally, the record is replete
With lelters to the planning departmat, planning commission, and MaWr Lewis, objwing lo the
appltcation bascd upon possible health effects caused by RF emissions and questioning why the site
;annot BO elsewhcre,3' This fact is further emphasized by the mayor's slatment at tho city council
haring that while thc planning commissioners stated thcy wcrc not considering the health affects of
RF cmksions in dcnying.ATT's permit application, puwortedly fatbwing the city atiorney's advice
as stated ai the hearing, this is exactly what they did.= While thc city may un&uWy hear rcsidants'
Ebrkaefns aver,Uw health cWits of RF emissions, such concm do not constitute a legitimate basis
Lo deny an application. Subtautid evldennoo must othccwh axist in support do legitimate basis for
m application der4 to avoid tho conclusion that the city denied the permit due to impermiesfble
25 Cal. App. 4th 363,971 (1994) (where in reviewing Lhc record for substantial evidence to support the denial of a conditional use permit the couri stated, ''In addition to the findings stated in the ~ouncil's resolution, we look to the tpmoripr of the hkry for statements made by €&e council nmbets. lt L pmpor to look for findmge in oral rama$s made at a public he- at which both ?art.les were psen4 which was recorded and of whwh a fitten transcript could bs mado.'') [quotations and citation omitted).
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health concerns. 166 F.3d at 495.
Thc first basis raised to suppart t!ie denial is aesthetics, yct no reasonable person could find
credible and substantial eviaonce supporcs such a &ding. Rathcr, 8 review ofthe record as B whole
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~ leads to the conclusion that aesthetics wcfe raised because it was known, afttr rcpcatcd instruction by
oity alranqs, that bahg thc decision an health concerns would be ~nlawfid?~ For exa~&e, bare
the planning commission Ms. Horen and Ms. Dice tcstifid that they were opposed w rhe &to because
of possible health cffecb; Ms. Homi said noChing about acsthctics and Ms. Dice statcd that thc
appearance Is aceccptabla but that &e WU conccmed over the oommercial facility being disguised as
a rcsidence.‘d ‘In fact, when aesthetic concerns werc discusscd at both tho plannhg cammiseion and
city cnuncil hearings, only one pcoon, Mr. Ncrcnberg, dhtly stated that he could 6- thc addition
and that it would be an eyesore?' In contrast, whm thc mayor qudaned Ms. Homn at the city
council hearing whether she was opposed to the acsthetics of the building, Ms. Horn stated Lhat shc
23 1 was opposed to the “philosophical acsthctics of it allA”36 Moreover, when looking at thc drawings I
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s~bmitkd by Am, included in the adminishalive recod, the mage extension is mnely a third garage
door added onto a large house on a one acre lot located in a ncighborhmd ‘%hich is developcd with
very large residmtial struclure~.’”’ As such, given that only one person, Mr. Ncrenberg, statcd that
he could actually se thc addition and pvc a specific reason why hc was tlesthetieally opposed to the
garage expansion, the court concludes that substantial evidence docs nor support the finding chat the
’
” AR, Part JX, pp, dl 25,69972 (discussions at lht planning camdsslan hcmhg conccrnlng RF emissions from the site and the cornrnission’s ability lo consider such emissions in deciding the permit application); Part VU, 20-21 (city attorney’s advice io the airy counail conecminp ics ability to consider the FW crnissions).
AR, lX, pp- 30-33,49.
Is AR, pm 3 pp. 56-58; Pan M1, pp. 24-26, In fat, the mayor wtnmemtcd that he had been to Cadcncia street an could not tell tbt lhc Par; Bell site was anything other than a home, Part V4 py. 13-14. In comp*son the ATT Site is similarly dosigned in \ha! the atltennaB We hidden under
stucco attached TO the ahimneys and the radio bmsc station IS bud in a $;lragc expansion. ’‘ AR, Part V11, pp. 19-20. Ms,,Moren added lhat ehe was really concerned W‘th cho health affect ard properly ~lucs caused by sihng wireless pcrsonal scnricc facilities in Chc arca. AR, Pan VU, pp. 19-20, ’’ AR, p. 346 (Ple Depanmenr Report to the PlaMing Carnmkjon, May 16,2001).
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application was denied based on the aegthetic ~oncerk.~~
Turning to the hue of pmp- values, the city specifically found that the site mull
ncgalively atjy,t thc property values of lhs ncarby hmee based upon the pncdvod ftar of rho bald
c&ts caucd by the RF Howaver, the TCA prohibits local government from basmg tki
docision ro deny B pennil to aon.struc1 a wireless sfre upon &dace which finds its support in fear ove
the health effects of RF emissions. HA ConfcrerzEc Report No. 104-458,201 (1 996). As such, du
concern ova prop- value depreciation bascd on fbr over RF emissions does not constitute i
legitimate bssis for an applicalion denial under the EA. Additionally, ou evidence exis@ in thc
mord that propmy valucb wvlll decline simply from the additions to the home.&
As tu the “intensification of uses within the ncigfiborhoorl“ this finding is not supportcd b)
substantial cvidence. First, neighh exgrcssed conoBm that the aeigliborhood would boaomr
“antenna alley’. and that there would be B saturation of cell sites since tbe Pac Bcll cell site and a ham
radio, used by the property owner, wwc also tocat@ close to-the proposed A’lT site. ,The planniug
commissjq and city council reiteratcd this pint by mpentcdly expressing ~oncecms that lhe
neighborhood would become inundated with “fivo, six, seven of such feeililias.’‘’ Hewavcc, what is
notably missing hm the rccard is my evidcnce to even suggest that a third or fourth campany, much
less numbers five, six and seven, wcw geeking to sire in the areae Marcover, the con- aver
The city ad60 relied on the finding that n16ghbors objected the commmial-like garage addition since inste-ici ora fourcar garage it would be a six-garage. Howevcr, no resident testified that Pther h0mm had morc or lass gam es. h Tact, the only rcsident who stated that ehe thought the
street. Accordingly, tha finding about a ‘fnassivc” araga being out of character seems to be nolh-
~FG thm an attempt to catate tha! it was aesthetic y disple~in& which, as discussed above, is not iupporled by substantial evidance.
’’ AR, Pm I, p, 8.
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addition looked ‘%ommercial” add d that she could not ewn see the extension when driving on the
Mr. Naenberg testified thal thc additional gwge will negalively affm his prop* vdues, put he prcssnted 110’ cvidencc to either the clty oouncil or planning cammission to support This usertion. AR, Part VlI, 26. .
*’ AR, Pad VI, p, 6; PWl IX p. 79-8 1. ‘’ The CAW argues that An’s RF engineer, Mr. Tech, tubn&d that another site would g6 vitliin a mile of the mposcd sita However, this misconstrues his testimony since his refaexice to
i mile radius hnd to & wilh the cmemge provldcd by the proposed site aud not the distance between he pmpascd site and an&- &e. AR, Part IX, p. 24.
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"antenna alley" could not be acsthatic ehce the antennas and qdpmenc at the site are desised to loo1
like the how ond rhus could nof bc seen from the exterior. Second, the argument that a slx-car garagi
is out of chmaer with Iha neighborhood is r(oi sum)oncd by the record because under the municipa
code any home awn= could expend his or her garage ta be a six-car garagtVo Residents scalec
conoem over the area beqoming "non-rosidmtlal" and oornrnerdal due to the added cell sites. Yet
thcre simply is no evidence rhat the cell site would cause the area to look commercial since the site
looks like o part of a large house in a neighbothood whh very large housesu and thcrc is no evidence
that the tdps or noise generaled by the ATT site would be Inuusiva into the neighborhood.* In camas1
lo the lack of evidence supporting the ihding that Am's site would commcmialize thc neighkrhood,
the testimony of the residents shed light on the me underlyhg concern ovcr rhhe neighborhood
becoming "mtenna alley'' ua illustrated by Ms. Harm's statements befm the city council:
Tt's an emoticutal issucthat people have, and EVCS though we arc not allowcd to speak
of he&h concerns, as you know, thek erc no lon$-Fann studies &low level radhttlan, the effects on the oommunity. 4nd so there is krnd of a palpablc fear and a concern about those issues and especially in this neighborhood whioh we now call antcrmaalley bocausc we already got one that kind of slid In very qubkly, and . . . [alcrcups the street 3 7535 there is a ham radio station . . .So now we're talking about across the sfrect a new installment oTAT&T.
AR, Part VU, p. 15. In sum, thts underlying fcar of "- alley" is not substantiated by any
O3 The city does no\ contest that a home ower could expand his or ha garage M a matter of ight to house vehiclcs, but sugues thht ATT'b ''as-or-right" argumunt lacks merit bccauee the actenskin is a nonconformifrg use which is not as of right. Reply in Suppon of Defendants' Crosa- Motion for Sucnmnry Adjudication of Counts I and TR, p. 7 n, 9. However, this argument misses the paint dncc the issue when thc city states Y six car gmge is oul of chaxac- with the neiglihhaod, ia not whiR 1s housed ln6dc Uzc gmge but ils exterior appeaFance h 00~SPn b t$c neighborhood. rhus. because myone in the neighborhood could cxpand to have 8, Six car garage, whlch involves only &re@ garage doors, the "out-ofkharWer" armmat lacks my evidentiary support-
The planning deparhnent report to thc planning commission ststw, 'The pqascd project is located in 8 low density residential neighborhood whch is developed with vay largc residential ;lructures-" AR, Parl 11, p- 346.
Residents wm canucmed over increased &c and stated 'be- the plwhg commission hat thcy saw Pac Bell workers chccking the grem baxee locat4 on the streets quite regularly. AR 'art LX. pp. 54-55; Part VTT, p. 23, Howsvcr, ATT made clen thnt no such grim box waa neoessary
o devclop the proposod dte, and Lhc city planner testified that onl one to tw'o trips er month by ATT
?m IX, pp. 64,77. Additionally while the issue of noise was raised, the hFin department found hat the noise would not be inhush in addition to the fact that A?T &to mufate the faux garage :o dloviata my concerns over noise. +R, Part IX, p, 66; Part VlJ, p. 30. As such, substantial cvidmbe ioes not exist to support the mpa8itron that Am's propod sits would cause an htcndflcation of
wOTkcrs would occur to check on the site showing thar any tm ti E hcrease woul dp be minimal. AR,
igcs that would "commcrcizr P IZC" rhe neighborhood.
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widenu in the Ford that other cellular providers will seek to locate in the nelgbborhoc~d, aod laoh
any basis for concern other than ckhhcnral hcalth effcct8. ,
a.
In addition ro the lack of compatibility with thc neighborhood, the cily argues the lack 01
evidence “hat altmxativc locations , . have not baa exhcrustively GXplorod;” cstablishcs jlrzbatarnrid
evidence to support the denial of An‘s pcrmit application. The pertinant question on this issue is
whdher or no1 the city imposed such critcvia at the time of Am’s application she the Fify may nor
arbiimily impose ncw CUP critcria not in place at the time of plaintiffs application. Sam
301 F.38 390,398 (6th Cir. 2002) (ddal afvan’ancc based on critcria not part oi
relevant city ordinance does not constitute substantial cvidmce); Gxu&ME-$
131 F. Supp. 2d 1335, 1343 @.D.Oa. 1999) (county’s denial of pedt to build cell site due TO
BPPUC~~VS fnilure to conaideraltcmative cell sites was not supponed by substantial evidanca hccause
the local cndinancc imposed no such requirement); v. Bo-,
984 F. Supp. 968,974 n. 14 @.D.Va. 1993) (7n order be supported by substand4 evidence, lhe
proffered masons must mmpm wlth the objective criteria in exislence - . . Oovcmlng badk cannot
simply arbitrarily invcnt new Gtitcria in order IO reject an application.”)
‘.
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The city CWS that An was requa to demonstwn that no feasible alternatives in non-
raidcntial locations existed, pursuant lo Poljcy No. 64, for a CUP to be granred. HOWavaz; the critda
watad in Policy No. 64 is irrslcvant bEcause the administrative record contradhs any rcasonablc
argument that Policy No. 64 was the guiding policy at thc time An’s application was complete.''
Firsl, Policy No. 64 was aot written until almost ayes after An’s qplidon was complete and nvo
AR, p. 29 (Rusolulion No. 2001-309).
” Thc city ues in its rep1 brief in suppo~ of its motion fin summary adjudi&on,,that
Poliay No. 64 is mare y a guideline or applying for a CUP 5u eating that ATT could have received
?I CUP without following the “guidclincs” set fqrth in the PO ICY. Defendants' Reply in Suppoct of Dcfcndams’ Gmss-Motion for Summary Adjudication of Counts X an8 U, 917-27. This ixgumcsat lacks mm’t given the city‘s cantladldory SWernSnt that Am’s fdm to +ow any feasibJc altcrna!iv~e
D the pmposod site as requircd b Policy No. 64 const~~tes substantial dence suppomngthe denial.
i 7 ry
Defendants' Cross-Motion foT d ummary Adjudication of CaUnrs I and Izi, 19:7-19.
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weeks sffer thc city council de@& An’s application.“ Second, Sanior City Plmm Mster-
Westman tastlficd bcfow the p~~~ coiiunission that the chy hoked my policy thw would guid
the plslrming departmcnt in addressing the proliferation of cell Site applications for rasidentia
nejghhorh~ods.‘~ In contmst, Policy No. 64 states that ita pwposc is to guide miYIn -viewing &
placement of cell siles including placement within residential neighborhaod~.~~ mid, tk city ‘doc
not paint lo any evidencc in the record that Policy No. 64 iP fact memonulh existing city policy
FbLIy, finding in the city’s resown canrndict that this written policy was in place ai the time a
the application sines ir imposes the requhcmant that no F’easlble alternative exist fbr a cell site to bi
placed in residenlial neighborhoods, yet thc molution denied the applioacion for fiiling tc
exhaustively explorc other residential and commercial diitcs.” There-, the city cannot rely on Poliq
No. 64 as o basis of substantial evidence to support the finding^ because lo do so would impose crilaic
on Am’s applicntian not in place whcn ATT completed Lhe appllcadan process.
Apart krn Policy No, 64, rhe city aqpcs that Ihe appllcordon fdld to meel the relevant CUP
oritella esmblirrbtd by Carisbad Municjpal Code 8 21.42.020 that tho elte Oc necessary ai dcsitable
fbr the development of Lhc cie~.~’ Despite thc Ocneral Plan’s recognition that cell sitcs ate ‘hecessar)l
and esscnti01 to rho in&structural support of urban land uses,’’s3 the city found lhnl the cell site was
wt ncctssary because ATT Wed ta cxhauslively a&ne alternatives to avoid the intensification of
JSCS in the proposed ficighborhod and lo sufficiently attempt to obtain a site at a commercial cater
:o be built. Howwcr, these finding cahpse in light of thc fact that thcy arc based on dlY’s
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‘’ AR, p, 345; Part VI, p. 1.
a AR, fX, p. 63.
AR, p.12,
I’ kR, p. 15; AR, p. 8.
’’ Carlebad Municipal Code g 21.42.020 states in rel&arit,part: A conditional usc permit shall be granted only if th? followng racls are-found ta exist in regard thereto: (1) That the rqucsred IUD 1s necesSary or dearable fbr the dcrclopmcnt of the community” )eYcndants’ Reply in Support of Defendants’ Cross-Maion for Summary AdjudicaCh, Ex. E.
AR, p. 346.
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concern overthe iTltensification of uses in the ncighborhoodlq which. in turn, lacks mbmd evidrnt
in supporl of such a finding (me discussion BUIUH). Additionally, the city fbbund thqt several residen
testified to being subscribers to ATT and having adequate coverage in the arca to be covercd by th
proposed sitc which the city now argues coastitutcs substantial evldmce for showing &at the site WB
neither nece666~1y nor desirabla However, the reosrd belioa the argument that substantial widcnc
suppons this hding, WMc sevd resid& testifcd to having adequate cell phone coverage in th
relevant ms, a wicw of the record shows chat only two rasidents stated they eubsm'bad ta ATT:
While thc residcnts' statements are evidence that the city should consider, two statements that AT
docs have adcquale covcragc does not Each the levcl of subsrantid evidence especially. in light of th
contrary testimony by ATPs enghmor that a coverage gap deb in the area.% Th@refm, subsmath
evidence daes not support tbc findings that relate to the CUP crircria sei forth in Cadsbad Municipa
Code 5 21.42,02(1.
In awn, hraving rewcwcd thE administrative record the colut cannot reasonably conclude tha
he evidence sbpporring thc denial decision was substantial especially in light of the high degree 0:
lltenrion drawn to the concern ova the heal* effects oTW-emissions by the tcsidmts, planning
!ommissha, and dty ooundl. Thazfbrc, the eiry's decision in denying ATT's applications VioJatd
i 332(c)(7)(B)@) and (c)(7)(B)(iv) and cannot stand,
As a~ of3rmctive deFense, thc city argues that ATT should be equitably mapped hrn
itiga-ng the substanrid eviclcnce claim (47 U-S-C. $ 532(c)(7)(B)(iii)- count three) because ATT
vithheld relevant information hrn tha city during the CUP process on tlic availability of alternative
e\! sites.n Such evidence, the city argues, Would itself have astablishcd substantial evidence for
lenying plaintiffs applicadop making equitable estoppel proper.
A& pp. 8,9. A1
"AR, Parr IX, pp, 37,41,46,51.
" AR, IX, p. 24. '' The city has filed a mption to mend its answcr in order to iecludc the estoppel dahse. ils burden ha aGMshing that quihbl6 estoppel applies rowcvcr, bccause tho City has lhlcd to c
1 this case, UIC cawt denies thc ciry's mo T on to file a fitst amended answer.
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In order to pmail on a olih ofequitiable cstoppel, lhe city must eatabfi~h the following:
(1) The p3I‘ty to be estopped must know the facts; (2) he rnm intend that his conduot shall bc sted on or mud so act that thc party asserting’thc estoppel has a right to bclicve it is 90 inrcndcd; (3) the latter must be ignomnt of the CNC facts, and (4) he must rcly on the fmnct‘s conduol to his injluy.
Y. r 421 F.2d 92,96 (9th Cir. 1970) (citation amittcd);
1913 F2d 676,635 n.19 (9rh Cir. 1990) (citation
omitted). The city presents thnx facts that documents utlcovsred during discovq, but nor presentee
during the applicatian protess. allegodly rcvcal: (1) ATT withheld a coverage map shmlg adqua11
coverage for the +elovaat m (2) ATT identified alternative non-rosi8cntlal sites; and (3) Am
required a sistar site to compliment the proposed sirc but the information wa8 not disclosed. The citl
relies on the expen tuthony of Jonathan Kraulcr in astablishfng the first two “hown facts” in ligh
of the documents produccd by Am. Consaqucdy, because Kramer’s teslhony lacks reliability, thc
city has failed cl~ meet its bdcn to establish that the ht wo facts are actually facts and thue caunoi
2stablish thc first prong of the estoppel dcfensemR
On the third fwt, Lhc ciy’s a=gumcnr that An’ withheld information about e necessary sistcl
site to the proposed sirc lacks evibntiary support. ATT’s cngheer did state before the planning
;ommission rhar the proposcd sitc would only covcr a one-mile radius and that an additional site
would be needed whlch Is conobarrted by the Gonsalves afEdavit. Howcvcr, the clty mischmacteriz!es
hese smtomentg by argrrSng lhat An required a second sh in order to allow The proposed sitc to
>perate pr~parly.~’ The city has prescnted no evidence thQt thc proposed dre and sister site c~nn01
hctlon without the othor. Rather, the undisputed evidence shaws, as stated by Gonsalves, that the
imposed sile js not struchmlly dcpendent upon the building of another site,b0 In’other worQ, tho
sa The coul rejccts the city’s argument that its estoppel dcfonso io slat dapandcnt In any way m Kramer’s testimmy since it is mer's ‘’axpm” analyers of the documents pmduced that the city ises Lo establish ATT had adquate coverage and iiabl~ dternative sites. &e Dcfendants’ Cross- vlotion hr Summary Adjudication of Counts 1 aod ITJ, 21:6-22:2.
s9 AR, Pan IX, 235-14
Gonsalves -davit, 3:M.
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proposed. Site does not need an additional site to cover the ana-mile mbius it is intended to COVCT,~
Accordingly, the city has hild to show thnl this last fact is “known” by Am because it has no
presented evidence dual lha fh.3, as it describes it, cxists. Therefore, the city’s astoppol wrnent fdl!
because chc city has nor met Its butden in establishing tha alamtnts of its afirmativc &fensea
ATT requesrs that the murt issue a wit of admhistraiive mandamus based upon the ciiy’s
violdon of 4 332(c)(7)” mquin’ng &at thc city grant tho application for tho CUP. U’hflc the cib
argues that A?T has nat shown that the remadies under the TCA ar.e ina&quie, this coup fellows th
decidons laid down by a number of Circuits which haw held that an injunction compelling the local
authority tu act is an appropriata medy for a violdon af Q 332(c)(7).
-, 166 F.3d 490,497 (26 Cir. 1399) (noting thal a majority of bfE&tct mutts haw
held injwtion appropriate to randy 3 violation of the TCA and holding injuuction imposed by
aistFict CbW appropriate since lhis best sarves the purpose of rho ‘S‘CA’s stated goal of expcditbg this
~pc of action.”); , 296 F.3d 1210, 1222 (11th Ck. 2002)
[injunetlon appropriate remcdy for violation of Q 332(c)(7)); --
181 F.3d J?#, 410 (3d Cir. 1999) (upholding injunction impscd by
3isrkl COW for violdon of Q 332(~)(7)@)(iii) because ‘‘[i]nJunctioas arc proper forma of mkfmder
ATT also Wd a motion for summary adjudioation on count two (violation or $332(c)(z(B)(i)(I) ptohibitbgunreaSonable discrimhation between providers of uivalent mlces).
brcc (injunctive and declaratory relief), the court nced not addrcss aunt WO. However, the court
iotas that the lack of subslantial cvidsncc b support the denial of ATT’s applientloa givina nae to the :onclusien that the oiiy impennissibly bas& its dwcision an health eflccta also shows-u violation of 3 332(c)(7)(B ({)(I) because no re3sonahle basis exidrs for grimting PBC Bell‘s appllcat1on fot a CUF’
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3eGausw, T seeks tho esscndally (he same relief under count two as It does u3 ec counts one and
jut denying t i e appkation submitted by ATT.
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§332(~)(7)(B)(v)*~~ (citation omitted), Thc city argues that adminislrative mandamus is nc
tlppropriata because the ciry Is working with ATT to fid a fhsiblc aftcmalve site outdo a residentia
s~ea Howover, such cooperation by the city is a rasult of its unlewfhl denial of ATB pmj
application. Corasequently, remanding the dccision would dlow the city to bcnefit hrn its d3wfi
decision and would ftuserata thc purpose of the TCA that actions brought under it be decidcd on a
ax)lediled bask. Therefore, admhhtrative mandamus is appropriate in this case.
E. vv I.
TYI addition to its claim6 under tho TCA, ATI' argues rhsc &to dy'e actions violated AIT's rigtU
ta equ! ptection under both the Callfomia and United States Constitutions.@ The qual protectior
~lausc ofthc Feurtctnth Amendmenr "commands thst no State shall 'deny to any porson withln ib
jurisdiction thc equal protecrlan of the laws,' wlilch is essondally a direction that all pcrsons similarfj
Q, 473 us, situated should be mated alike."
$32, 439 (1985). Even though local land ube decisions arc presurnptivdy consIjtutiona1 wherc M
bndatnental right or suspect class is involved, an equal protection vblatian will be. fbuud where the
,ocd government decision bears no rational rclationship to a lcghmte govvMIont interest. Izfl
920 F.2d 1496,1508-09 (9th CIL 1990) (plahliff stated au qual prptcction
him where complnint aIlegtd that ciry unreasonably and arbierarily lidtcd use ofplaintiff s property
md requid pmperty be set aslde for apm space without imposing such conditions and dctions
ipon' ownen of similarly situated property). The city argues that it had a leghimate basis for
iiscrlmination because Am had adequate coverage in tho area, fiiled to cxh&livtly &ne other
,ossiblc sites, and was the third wirclas site in thc neighborhood whereas Par: Bell was the second.
-Towever, these arguments lank support shw the court is convinced that lha undisputed evidence
-.
SQCth ~~~(c)o((B)(v) ptovides in part:
Any person adversely aktsd by any find action ar fdure to acr by a Slate or local government or any ~nsllumentality thereof that Is inconsistent With this subparagraph may, within 30 days afle? such action or failure to act, commence an aden in ;ray court of Gompctcnt jurisdiction, ,The coun shall hear and dccids such action on an c~pedihad basis. I7 U.S.C. 0 332(c)(7)(B)(v).
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Because ATT cssuntially an s its equal prokction clalm under the U.S. Constitution. the
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ourt applies fsdcml law to KlTs ct 2= m.
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shows that the city denied the application becausc of the public oumy om the possible health effect{
hrn RF emissions. Additionally, each of the alleged bases fQbr discrimination lack support. Fht
Am hss submitted an unrebumd afEi&vii of Gonsalves, as well ae the testimony of its qhcer Mr
Tech, showing that ATT hae poor to no coveragc in the Cadencia area which is the amno reason Pa
Bell located in the ares~*~ Second, the failurc to explore alrcmativc sites ia not B lpgitimale basis foi
discrirnhdm given thal this Is bascd on concems of over-intensificdon, which, as discussed above.
la& evidentiary support laving the court to conclude lhat thc city denied the pedt due the hdt€
&ils issue. Moreover, lo the cxtent that the cjly argues that Polioy No, 64 requires examhation 01
non-reisidmtid altemstivcs, such 1) ba& is arbitmy and unreasonable since the policy was not in
existence when ATT’s application was complcted, Third, simply because ATT is the third
wfralew dto in thc area does not mean that its perrnit mny ba dsnied unless thoro is me ratlonal basis
fat denying the application. Fourlh, dcnying the pernil because the garaEe extonsion is out of
character with the neighborhood lacks evidcntiary support Since garage cxpanskns art allowad a8 a
matter of righl undcr the municipal code, m. Consequently, thc city aced Unran~o~blY by
discriminating behrveen the applications submitted by ATT and Pac Bell when it denied ATT’s
application wilhout a legitimate basis and therefore violated ATT’s rights under tho Fourtuml~
amendment.
ATT qua rhat the city’s policy of requiring no feasr‘ble dternatives prior to granting a CUP
that would allow IL cell site in 3 reddenrial neighborhood is void for vagueness on its face and
applied to ATT- However, because the court has gtanted ATT’s =quest for adminislrative mandamus
requiring the city to grant CUP +pLicatian 00-36, the court denies ATT’a motion for summary
iud,gmcnt on this claim as it is moot, -
To prevail on a 9 1983 claim, the plaintiff must prove that (I) the dcfcndant acted under tha
color of law in etmmitting the canduct ai isslle and (2) sucb conduct dcprivcd plaintiff of some right,
Gonsalves Affidavit, 8 18. To the extent that the city relics on the =pen testimOny of lonathm fcramer to suppan the mmt on coverage, the courl docs not take much testimmy Into
account becausc of its unrsliahility, supra. .
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privilege or immunity pratootcd by the Constitution of laws of the Unitrd States. 42 U.S,C. 4 198:- I
-, 769 F.2d 1350, 1354 (9tb Ch. 1985) (en bulc).66 Because the court finds Q
significant questions of ht and law remain as to whelher the named defendants rrlay be found liabl
wder 8 1983, the court denies plaintiff's motion for summary judgment on this claim.G:
IV. CQNCLUSJON
For the forcgoiug rcasons, the COUII grants An's motions for summary adjurtication o
cdunls one, two, th, cight, and ten, but denies ATT's motion for summary adjudiestim on CQUT
seven and ainc. Furthermore, the court denb the city's cross-motion fix summaty adjudication Q
counT6 on6 and ihruu and denies thc cjTy's motion to file a firsl amended answcr.
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ib h addition to declaratory and injunclive-relief, ATT swlrs mpensarOry damages dcr the Weral Civil Ri td bW on violations of its nghts under &IC TCA- A number of coutt~ have lit m whether the Pup CA irnplici ly fordoses a suit for damages under 8 1983. !h d 286 F.3d 687,695 n. 7 (nothg rhc splil among &strict courts on whether the -83 action and holding that the TCA is sufficiently comprehensive to foreclose uit under 0 1983). However, because the court has set the 6 1933 issue for firrther briefing, BM n.69 a& it does not addtess this issue at this time.
" The court has request4 in a letwr 10 be sent bthc pdcs commtly With this order, that
ho parties submit fahe briefing as to whether 4 1983 liability may be impoad on the named iefendants. The specific issues the court sccks to hava ddressed will be sa forth in thc letter.
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02/05/03 WED 11:16 FAX 213 236 2700 @lo03 . oz/ua/soo3 09:06 FAX BIB e15 6673 BURKE WILLIAMS SORENSEN BWS LOS ANGELES WOO3
--
United States District Court I I rll pr Southern District Of Califomla I ;LLL
Edward J. Schwartz Federal Bulldin 940 From Street,
San Diego, California 921 01 -8906 JeT'f~y T. Miller Uniced States Dimicr ludgc
Fcbmary 3,2003
To the partias of rccord:
AS stated in the court's Ordcr gmting h part acid denying in part plaintiffs motions and cross-molions for ammaty adjudication in CBSC number 02 CV 2045, 41cT Wbeless v. Cm
$Msbad, tho court hcrcby rcqucsts Mer briefing on the issue of liability under 42 USC- 9 1983
fix tach defendant qainst whom recovery is sought under 9 1983, Morc spccifidly, thc court rcquesls that the parties address the rollowing four qucetioxls and issues:
(1) Did the action of any mcd dcfondant vlolate B clearly etitablishcd right cognizable under
13831 If so, name e& specific &fendm4 identily Ihe spcmfic act9 of that dcfcndant, and cite to
the court the cases which clearly establish my such nghL ul the time my such dercndnot actcd;
(2) Cite to thc court cascs adhssiug the applicability er non-applicablIity of immunity for Ihe
defendants against whom 0 1983 ralief is soughl;
(3) May 8 1983 liability in this cam bc prcdicatcd against the City of Carlebad on ;rponeU thwry? If 86, the issue of oustom, practice or poky is lo be briefed; and
(4) Each sidc is to submit a thorpugh analysis of the kderal and state law within ths Ninth Cirlcuit
and CalliCornia, respcctivcly canacming 8 1983 Uability witliii the context of land uso decision making.
The parties ara to simult.aneouslyfila and scwc op&g suupplementd brief5 no grdm than
wenv pages in Icngth. The ope* supplemental bricfs are to be filed within fifteen days afler the
entry of the Ordm on rhc motions for swfllllliry adjudication. Estch party will file and Sme
supplemental reply briefs, no1 to exceed ten pages in length, no law than fiw? days aft= thc time for
service 6f the original supplomcntal brief.
'Sinited S~tes Dislrict Jdp
12/03/03 WED 10:09 FAX 213 236 2700
- .......... .. .. "- ..... @I 002 __ I--.. ...
SOUTHERN DISTRI
United States
I AT&T Wireless Services of California LLC a
Deleware limited liability company, dba At&T
Wireless
i V.
The City of Carlsbad, California, et al.,
CASE NUMBER 01 ~~2045-JM (LAB)
Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury
its verdict.
I Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision h;is been rendcred.
lT 1s ORDERED AND ADJUDGED that the Court directs the entry of final judgment in favor of Plaintiff At&T
Wireless Services of Califmi& LLC on counts one, two, three, eight and ten of the complaint ................................
November 2G, 2003 W. Samuel Hamrick, Jr.
Date
C. Gobbi
(By) Deputy Clark 33
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@ 003 12/03/03 WED 10:09 FAX 213 230 2700
CASE NO. 01 CV 2045 JM (LAB)
~ ORDERENTERINGIUDGMENT GRANTING WL"VE RELIEF ANDMANDAMUS
I UNI.TED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
AT&T WIRELESS SERVICES OF CALIFORNIA W, a Delaware limited liability company, dba AT&T WIRELESS,
Plaintiff, vs.
THE CITY OF CARISBAD, CALIFORNIA,
et al.,
Defdants. ]
On February 4,2003, this court granted Plaintiff's motion for summary adjudication on counts
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one, two, three, eight and ten and denied Plaintiffs motion for summary adjudication on counts seven
and nine. x"urther briefing was ordered on count nine and Plaintifl's motion fur summary adjudication
on count nine is calendered for January 5,2004. All remaining counts were dismissed. Plaintiff now
requests that this court enter judgment on counts one, two, three, eight and ten pursuant to Rule 5443)
of the Federal Rules of Civil Procedure. Plaintiff has submitted a proposed judgment granting
injunctive relief and mandamus. Defendants object to the proposed judgment on the grounds that Rule
54(b)'s procedural and substantive requirements have not becn satigfied. Defendants do not object to
the substance or wording of the proposed judgment submitted by Plaintiff. For the reasons outlined
below, Defendants' objections are ovcmled andjudgment is entered in favor of Plaintiff on counts
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/N -1-
-. 12/03/03 WED 10:09 FAX 2.13 236 2700
, ._ ..____..._... -- -.- .-.I. .--..I _.__ ----.-- .. .. ..-.
Defendants object to Rule 540) partial judgment at this juncture becausePlaintiffdid nc. make
a separatcly colendcred motion requesting such relief However, Rule 54(b) does not require a
separately calendered morion in order for the district cowt to certi& and enter judgment. Defendants
do not cite any rule or case to the contrary.
Secondly, Defendants object to the merits of Plaintiffs request for entry of pdal judgment,
Defendants argue the requirements ofthe Rule 5401) certification have not been satisfied. The district
court may enter separate judgment in a case involving multiple parties or multiple claims pursuant to
Rule 54(b) when “there is no just reason for delay.” Fed. R. Civ. Pro. 54(b), The Ninth Circuit has
indicated that entry of partial judgment should not begranted as amanex of course but rather‘keserved
For the unusual case in which the costs and risks of multiplying the number of proceedings and o
ivercrowding the appellate docket are outbalanced by pressing needs of the litigants for an early ani
separatejudgment as to someclaims arparties.” puTarrison-Knudsen Co.. h~Ar chet 655 F.2d 962
965 (9th Cir, 1981). The district cow should consider whether (1) certification will result ii
mecessary appellate review, (2) the claims finalIy adjudicated are separate, distinct, and independen
jf any other remaining claims, (3) review of the finally adjudicated claims may be mooted by futun
leveloprnents, and (4) the appellate court may have to decide the same issues on mote than om
mxsion. & (citing Curtiss-Wright Cm . v. GeneralElectrii 446 US. 1, 5-6 (1980)). The
listrict court is required to make specific findings and articulate specific reasons for granting
.ertification under Rule 54@), Id-
In this case, Plaintiff has demonstrated a pressing need fbr an early and separate judgment
Fanting injunctive relief and mandamus. The only count still pending, count nine, is separate, distinct
nd independent fiom the counts on wbich Plaintiff requests judgment, Count nine is a claim under
2 U.S.C. tj 1983. The legal and factual issues that rcmain to be litigated regarding this count concern
istinct legal issues under 5 1983 and do not overlap with the legal issues previously decided with
:gards to counts one, two, three, tight and ten. Furthermore, there is no danger that issues previously
ecided will be mooted by future litigation of count nine. There is no threat of unnecessary appellate
:view. Because Plaintiff has demonstrated compliance With the requirements of Rule 54@),
befendants’ objections are overmltd.
@I 004
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12/03/03 . WED-10:10 FAX 213 230 2700 @I 005
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Therefore, for the reasons set forth in this court’s February 4,2003 order, the court hereby
grants Plaintiff relief on Counts one, two, three, eight and ten and orders that a Writ of Mandate issues
as follow:
1. Defendants are herebyordered, within ten (10) days ofthe dateofthis Judgment, to set
aside their denial of Conditional Use Permit (“CUP”) No. 00-36; and
Defendants are hereby ordered, within ten (10) days of the date of this Judgment, to
issue CUP Ne. 00-36 and all other pdts, and to take all other actions, that may be
necessary to allow construction of Plaintiffs proposed wireless facility at 7512
Cadcncia Streel in the Cit)’ of Carlsbad C‘Facility”); and
Dcfendants shall notify forthwith all agents, employees and officers ofthe City, whose
action may be necessary to effectuate the relief granted herein, of Defendants’
obligations and duties set forth in this Judgment Granting Injunctive Relief and
Mandamus; and
Defendants and their agents, employees and offrcers are enjoined hm talang any
action inconsistent with the relief granted herein.
2.
3.
4.
The court, finding no just reason for delay, hereby directs the entry of final judgment in favor
of Plaintiff on Counts one, two, three, eight and ten of the Complaint.
i~ rs so ORDERED.
DATED: I$/> c-, 2003
cc: allparties
-3-
_- - -
01~~2045
. ..
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36
From: Christer Westman To :
Date: 12/9/03 10:03AM
Subject:
Good Morning,
Michael Holzmiller; Ray Patch&
CUP 0036 Van Hoose notification
I called the Van Hoose home and left a message on the answering machine and sent a fax with the first
page of the agenda bill to the Van Hoose home on December 9,2003 at approximately 1O:OO a.m. to
notify them that the City Council would consider CUP 00-36 for approval at the December 9, 2003 City
Council meeting.
I asked them to call me if they had any questions.
Christer Westman AlCP cwest@ci.carlsbad .ca.us