New Cingular Wireless PCS, LLC v. Cnty. of Marin

NEW CINGULAR WIRELESS PCS, LLC, Plaintiff, v. COUNTY OF MARIN CALIFORNIA, Defendant.

Case No. 20-cv-07915-SI

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

February 19, 2021

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS COMPLAINT

Re: Dkt. No. 22

On February 12, 2021, the Court held a hearing on defendant's motion to dismiss the complaint. For the reasons set forth below, the motion is GRANTED in part and DENIED in part.

BACKGROUND

The following facts are drawn from plaintiff's complaint, which the Court treats as true for the purpose of this motion to dismiss.

On November 11, 2020, plaintiff New Cingular Wireless PCS, LLC ("AT&T") filed this lawsuit against defendant County of Marin (the "County") alleging three causes of action pursuant to the Telecommunications Act of 1996 (the "TCA"), 47 U.S.C. §§ 253, 332.¹ Dkt. No. 1, Compl. ¶ 7. Plaintiff alleges that the County's denial of its application (the "Application") for a use permit to allow for construction and operation of a wireless communications facility violates Sections 253 and 332 of the Act because: (1) the County's denial effectively prohibited plaintiff from closing asignificant coverage gap in the provision of wireless service in violation of 47 U.S.C. §§ 253, 332(c)(7)(B)(i)(II); (2) the County's denial of the Application was not supported by substantial evidence contained in a written record in violation of 47 U.S.C. § 332(c)(7)(B)(iii); and (3) the County improperly regulated the placement, construction, and modification of personal wireless service facilities on the basis of environmental effects of radio frequency emissions in violation of 47 U.S.C. § 332(c)(7)(B)(iv). Id. ¶¶ 57-80. Plaintiff maintains that the proposed facility is consistent with the Marin County General Plan and Marin County Telecommunications Facilitates Policy Plan ("TFPP"). Id. ¶ 4.

In 2019, plaintiff AT&T began the process of submitting the Application to construct a 30-foot-tall bell tower situated at the rear entrance to the main church building (the "Proposed Facility") to be located on the property of St. Luke's Presbyterian Church (the "Church") at 10 Bayview Drive, San Rafael, Marin County, California. Id. ¶ 1. The tower served to address plaintiff's significant gap in its wireless service coverage in the vicinity of the Proposed Facility. Id. ¶ 28. Plaintiff demonstrated its significant service coverage gap in the County's administrative proceedings by submitting radio frequency propagation maps as exhibits to its Radio Frequency Statement. Id. ¶ 30. To close the gap, plaintiff proposed to install a wireless communications facility disguised as a bell tower attached to the rear entrance of the Church's main building. Id. ¶ 32.

Marin County's TFPP establishes location policies and preferences for wireless communications facilities.² Id. ¶ 34. Plaintiff alleges that it thoroughly investigated alternative sites and designs to ensure its Proposed Facility was the best available and least intrusive means for closing its service coverage gap. Id. ¶ 33. Plaintiff claims there are no industrial, agricultural, mixed use, open space, or recreational sites in the gap area. Id. ¶ 35. Plaintiff claims to have investigated all non-residential properties in the area, including commercial sites near the harbor, two elementary schools, the San Rafael Fire Station, and the Church. Id. Over time, plaintiff also claims to haveinvestigated two nearby water tanks - including a water tank suggested by the Planning Commission and Board of Supervisors - and the existing Verizon tower located far outside of plaintiff's gap area. Id. Plaintiff's analyses of alternatives were submitted to the County in connection with the Application. Id. ¶ 33.

Finding the Church to be the least intrusive location to close its service coverage gap, plaintiff and the Church considered a total of six location and design candidates for the Proposed Facility - including a bell tower (or other architectural element) and a faux pine tree (often referred to as "monopine design"). Id. ¶ 36. The Church, based on its analysis, disfavored monopine designs and authorized plaintiff to construct the Proposed Facility as a bell tower near a rear building entrance. Id.

In advance of the May 2020 Deputy Zoning Administrator ("DZA") Hearing, County Staff issued its Staff Report. Id. ¶ 37. The report asked plaintiff to develop an alternative "taller and skinnier bell tower" design. Id. Plaintiff prepared engineering drawings for this alternative bell tower design on an expedited basis. Id.

During the May 2020 DZA Hearing, plaintiff presented its Proposed Facility and alternative "taller and skinnier bell tower" design. Id. Plaintiff alleges that despite County Staff's recommendation for approval, the DZA denied the application without considering the alternative "taller and skinner bell tower" design. Id. ¶ 38. It is undisputed that plaintiff did not present any plans for a faux pine tree design at the DZA Hearing. See generally Dkt. No. 22 at 3 (County MTD); Compl. ¶¶ 38-40. Plaintiff appealed the denial to the County Planning Commission. Compl. ¶ 38.

In mid-July, ahead of the appeal hearing scheduled for July 27, 2020, County Staff issued its Planning Commission Staff Report. Id. ¶ 39. The Staff Report - for the first time - recommended that plaintiff develop, as an alternative design, a "mono-pine antenna structure located amongst the mature trees along the southern property line" of the Site. Id. Plaintiff requested a continuance of the Planning Commission hearing to investigate and develop the recommended alternative monopine design. Id. ¶ 40. The Planning Commission hearing was continued until September 28, 2020. Id.

Before September 28, 2020, plaintiff contacted County Staff to pinpoint the County'spreferred locations for monopines on the Church's property. Id. ¶ 41. Once County Staff identified the preferred locations, plaintiff worked with the Church "to secure authority to place the Proposed Facility designed as a monopine and located per County Staff's recommendations." Id. Plaintiff then developed the requested designs, prepared simulated photographs of these two designs, and presented them ahead of the continued Planning Commission hearing. Id.

During the September 28, 2020 Planning Commission hearing, multiple Planning Commissioners expressed approval of one of the monopine alternatives. Id. ¶ 43. However, plaintiff alleges that the Planning Commission heeded direction from County Staff not to consider any of the alternative designs. Id. The County justifies County Staff's actions, claiming that plaintiff failed to submit the "required technical studies for evaluation, including but not limited to photo-simulations, radio frequency report, and noise analysis." Dkt. No. 22 at 4 (County MTD) (citing Ex. C, p.1, ¶5). The Planning Commission denied plaintiff's appeal and application of the bell tower design. Id. Plaintiff appealed that decision to the County Board of Supervisors. Id.

Ahead of the October 13, 2020 Board of Supervisors hearing, plaintiff submitted the engineering designs for the monopine alternatives. Compl. ¶ 46. Plaintiff also reiterated its willingness to construct any one of the four designs presented to the County. Id.

At the October 13, 2020 Board of Supervisors hearing, the Board did not consider any of the alternative designs for the Proposed Facility and denied plaintiff's Application. Id. ¶ 47.

On October 26, 2020, the County issued its written denial of plaintiff's Application in the form of the Denial Resolution. Id. The Denial Resolution specifies that the "revised [faux pine tree] projects the applicant submitted are not the subject matter of this appeal." See Dkt. No. 22 at 4 (County MTD) (citing Ex. C, p.1, ¶6). The Denial Resolution further explained that the Board is denying the proposed bell tower design because "the project...would cause degradation to [certain] views...due to poor design and placement. Specifically, the proposed development would be visually intrusive and adversely affect views from surrounding properties." Compl. ¶ 47.

LEGAL STANDARD

A complaint must contain "a short and plain statement of the claim showing that the pleaderis entitled to relief," and a complaint that fails to do so is subject to dismissal pursuant to Rule 12(b)(6). Fed. R. Civ. P. 8(a)(2). To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This "facial plausibility" standard requires the plaintiff to allege facts that add up to "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While courts do not require "heightened fact pleading of specifics," a plaintiff must allege facts sufficient to "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 570. "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 557). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 679.

In reviewing a Rule 12(b)(6) motion, courts must accept as true all facts alleged in the complaint and draw all reasonable inferences in favor of the non-moving party. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, courts are not required to accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (citation omitted).

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