Nextel West Corp. v. Town of Edgewood, New Mexico

479 F.Supp.2d 1219

NEXTEL WEST CORP. D/B/A Nextelcommunications, Plaintiff, v. TOWN OF EDGEWOOD, NEW MEXICO, et al., Defendants.

No. CIV 05-751 MCA/RLP.

United States District Court, D. New Mexico.

September 26, 2006.

Jeffrey H. Albright, Cynthia A. Loehr, Lewis & Roca Jontz Dawe LLP, Albuquerque, NM, for Plaintiff.

David Henderson, Santa Fe, NM, for Defendants.

MEMORANDUM OPINION AND ORDER

ARMIJO, District Judge.

THIS MATTER comes before the Court on the following motions: (1) Nextel West Corporation d/b/a Nextel Communications' Motion for Partial Summary Judgment [Doc. 30] filed on February 17, 2006; (2) Defendants' Request for Eighteen-Day Extension of Time in Which to File Response to Motion for Summary Judgment [Doc. 32] filed on March 8, 2006; (3) Defendants' Motion to Certify Determinative State Law Questions to State Supreme Court [Doc. 49] filed on April 13, 2006; (4) Defendants' Motion for Partial Summary Judgment [Doc. 50] filed on April 13, 2006; (5) Plaintiffs Motion in Limine to Limit Testimony of Richard Comi and Exclude Documents Related to Selected Issues [Doc. 51] filed on April 13, 2006; (6) Plaintiffs Motion in Limine to Limit Testimony of Bruce P. Budagher and Exclude Documents Related to Issue of Gerald Coppler Misconduct [Doc. 52] filed on April 13, 2006:(7) Plaintiffs Motion for Extension of Time in Which to Respond to Defendant's Motion for Summary Judgment [Doc. 60] filed on May 1, 2006; (8) Plaintiffs Daubert Motion Regarding Testimony of Richard Comi and Related Exhibits [Doc. 69] filed on May 12, 2006; (9) Defendants' Motion to Consolidated Case with Telecom Partners v. Town of Edgewood, et al. (D.N.M. Civ. 06-507 LAM/ WPL) [Doc. 83] filed on June 19, 2006; (10) Defendants' Motion in Limine to Prohibit Evidence Relevant to the "Vested Rights" Claim Litigated in the Administrative Proceedings and Supported by Substantial Evidence [Doc. 94] filed on August 25, 2006; (11) Plaintiffs Unopposed Motion for Scheduling of Deadlines for Completion of Briefing of Defendants' Motion for Partial Summary Judgment [Doc. 96] filed on August 25, 2006; (12) Plaintiffs Motion in Limine to Prohibit Testimony Offered for the Purpose of Supplementing the Administrative Record [Doc. 97] filed on August 29, 2006, and (13) the parties' Joint Motion for Extension of Time to File Trial Briefs [Doc. 101] filed on August 31, 2006. Having considered the parties' submissions, the relevant law, and otherwise being fully advised in the premises, the Court determines that Plaintiff is entitled to summary judgment on the claims asserted in Counts I, II, and III of the First Amended Complaint, and that Defendants are entitled to summary judgment on Counts IV and V of the First Amended Complaint. Therefore, Plaintiffs motion for partial summary judgment (which only pertains to Counts I, II, and III) is granted, while Defendant's motion for summary judgment is granted in part with respect to Counts IV and V, and denied in part with respect to Counts I, II, and III. The first two motions for extensions of time to complete briefing on the cross-motions for summary judgment are granted nunc pro tunc, and any responses received as of this date are accepted as timely filed. All other remaining motions are denied in light of the Court's ruling on the dispositive issues raised in the parties' cross-motions for summary judgment, and the trial scheduled for September 12, 2006, is vacated. The Court directs Plaintiffs counsel to meet and confer with Defendant's counsel and submit a proposed form of final order granting the relief requested in Counts I, II, and III of the First Amended Complaint by no later than September 13, 2006.

I. BACKGROUND

On July 8, 2005, Plaintiff Nextel West Corp. d/b/a Nextel Communications filed this civil action against Defendant Town of Edgewood, New Mexico, and a number of town officials. The central allegation in Plaintiffs Complaint is that Defendants violated several provisions of the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7), when they denied Plaintiffs application to install an array of antennas on an existing tower where two similar antenna arrays belonging to other personal wireless service providers are already installed.

Plaintiff filed a First Amended Complaint [Doc. 8] on September 2, 2005, which Defendants answered on September 19, 2005. [Doc. 9.] Thereafter, the Court issued an Initial Pretrial Report [Doc. 19] pursuant to Fed.R.Civ.P. 16 and D.N.M. LR-Civ. 16.1, which established a number of pretrial case-management deadlines and set a trial date of September 12, 2006. Some of the individual town officials named as Defendants in the First Amended Complaint were dismissed by stipulation of the parties. [Doc. 21, 26, 38.] The parties then requested and received a number of extensions of the case-management deadlines set forth in the Initial Pretrial Report. [Doc. 25, 27, 28, 29, 32, 60, 81, 84.] In addition, Defendants moved to amend their Answer [Doc. 36] on March 13, 2006, and the parties requested and received additional time to file various supplements and surreplies. [Doc. 54, 56, 57, 62, 65, 66, 67, 70, 71, 74, 77, 78, 79.] The result is that briefing on Plaintiffs motion for partial summary judgment was not completed until August 10, 2006, approximately one month before the scheduled trial date. [Doc. 92.]

This Memorandum Opinion and Order will not attempt to list every fact set forth in the somewhat convoluted record created by the parties' voluminous filings.¹ A basic summary of events, however, can be culled from evidence of record as follows.

In March 2001, Telecom Partners, LLC sought and obtained a State Building Permit from the State of New Mexico's Construction Industries Division for the construction of a latticework tower structure with a height of 185 feet on a plot of land adjoining Interstate 40 on the western side of the Town of Edgewood, New Mexico. This plot of land is in a "C — B Commercial Zone" under the Town's 1999 zoning ordinance and adjoins Interstate 40, a four lane, divided interstate highway. [Ex. 3 to Doc. 30; Ex. 4 to Doc. 8, verbatim testimony at 56-57.]

The purpose of the Telecom Partners tower is to accommodate up to five arrays of telecommunications antennas, along with several microwave dishes. This purpose is evident on the original plans for the tower dating from March 1, 2001, which show the antenna arrays and microwave dishes mounted on the tower. [Ex. 6 to Doc. 30; Ex. 4 to Doc. 8, verbatim testimony at 65-66, 75.] The advantage of this design is that it allows several antenna arrays to co-locate on a single tower, thus avoiding the proliferation of additional smaller towers, each containing a single antenna array. [Ex. 4 to Doc. 8, verbatim testimony at 52.]

Telecom Partners also sought and obtained approval of a Development Review Application for the tower from the Town of Edgewood's zoning officer in March 2001. On the application form, the town's zoning officer noted a number of other approvals or permits that Telecom Partners might have to obtain from other agencies such as the Federal Aviation Administration (FAA). [Ex. 3 to Doc. 30.] Telecom Partners obtained the necessary approvals from other agencies before constructing the tower. [Ex. 5B to Doc. 36.]

At the time of the tower's construction, the Town of Edgewood did not have a specific zoning ordinance pertaining to wireless telecommunications facilities. Shortly after the approval of Telecom Partners' application, however, the town enacted a ninety-day moratorium on "the review and/or approval of any and all telecommunications tower development(s)" within its municipal boundary, "in order to allow for the review, and adoption of a municipal Telecommunications Tower Ordinance." [Ex. 3A to Doc. 36.] Because the town's zoning officer approved the Telecom Partners tower before this moratorium went into effect and before a new zoning ordinance was enacted, initial questions about its legality were answered by reference to the Town's 1999 zoning ordinance.

When Telecom Partners began construction of the tower in May 2001, the construction was noticed by residents of the area, who hired a private attorney and made inquiries with town officials. On or about May 16, 2001, a representative from the homeowners' association for the neighborhood near the tower site, Timothy R. Oden, submitted a letter from a private attorney, Anita P. Miller, contending that the town's 1999 zoning ordinance did "not authorize telecommunications towers as a permissive, conditional or special use in any Zone District," and that "an amendment to the Ordinance is necessary in order that such towers may locate in the Village." [Ex. 5A to Doc. 36.] Ms. Miller's letter also noted, however, that she did "not have time to do a thorough review of the circumstances surrounding the issuance of the Building Permit, having only received the materials in the file on Monday, May 14th." [Ex. 5A to Doc. 36.]

In response to the letters from Ms. Miller and Mr. Oden, the town's mayor requested and obtained a legal opinion concerning the tower from another attorney Gerald A. Coppler.² Mr. Coppler's letter dated May 24, 2001, opines that the Telecom Partners tower is a "permissive use" under the 1999 zoning ordinance and that the town cannot retroactively withdraw its zoning approval for the tower because Telecom Partners' rights in the tower had already vested. [Ex. 5B to Doc. 36.] A copy of Mr. Coppler's letter was forwarded to Mr. Oden, and the homeowner's association decided "not to pursue further action on the matter because of the anticipated time, expense, and difficulty of obtaining" a favorable ruling. [Ex. 5 to Doc. 36.]

Construction of the Telecom Partners tower was completed in 2001. Antenna arrays belonging to two other personal wireless service providers (Alltel and T Mobile) were installed on the tower between 2001 and 2003, during which time the town's zoning ordinance had no...