Sprint Telephony Pcs, L.P. v. County of San Diego

Page 886

377 F.Supp.2d 886

SPRINT TELEPHONY PCS, L.P., a Delaware limited partnership, and Pacific Bell Wireless, LLC, a Nevada limited liability company, dba Cingular Wireless, Plaintiffs, v. COUNTY OF SAN DIEGO, a division of the state of California; Greg Cox, in his capacity as a supervisor of the County of San Diego; Dianne Jacob, in her capacity as supervisor of the County of San Diego; Pam Slater, in her capacity as a supervisor of the County of San Diego; Ron Roberts, in his capacity as a supervisor of the county of San Diego; and Bill Horn, in his capacity as a supervisor of the County of San Diego, Defendants.

No. 03CV1398 BTM(BLM).

United States District Court, S.D. California.

July 8, 2005.

Andrew D. Skale, Daniel T. Pascucci, Buchanan Ingersoll LLP, San Diego, CA, Counsel for Sprint Telephony PCS, LP.

John J. Sansone, County Counsel, County of San Diego, Thomas D. Bunton, Senior Deputy, San Diego, CA, Counsel for County Defendants.

ORDER (1) GRANTING IN PART AND DENYING IN PART SPRINT'S MOTION FOR PARTIAL SUMMARY JUDGMENT (2) GRANTING IN PART AND DENYING IN PART COUNTY'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT; AND (3) ORDERING ENTRY OF FINAL JUDGMENT

MOSKOWITZ, District Judge.

On December 1, 2004, Sprint Telephony PCS, L.P. ("Sprint") filed a motion for partial summary judgment. On December 17, 2004, defendants County of San Diego, Greg Cox, Dianne Jacob, Pam Slater, Ron Roberts and Bill Horn (collectively "County") filed a motion for summary judgment, or, in the alternative, partial summary judgment. For the reasons discussed below, Sprint's motion is GRANTED IN PART AND DENIED IN PART and the County's motion is GRANTED IN PART AND DENIED IN PART.

I. PROCEDURAL BACKGROUND

Sprint and Pacific Bell Wireless, LLC, dba Cingular Wireless ("Pacific Bell") (collectively "Plaintiffs") commenced this action on July 15, 2003. In their Complaint, Plaintiffs allege that the County's Ordinance No. 9549 N.S. ("WTO" or the "Ordinance"), which amended the San Diego County Zoning Ordinance ("Zoning Ordinance") relating to wireless telecommunications facilities, violates the Federal Telecommunications Act of 1996 (the "TCA"), Pub.L. 104-104, 110 Stat. 56 (1996). The Complaint asserts four causes of action: (1) prohibition of provision of telecommunications service in violation of 47 U.S.C. § 253(a); (2) discriminatory regulation of a public right-of-way in violation of 47 U.S.C. § 253(c) and the Fourteenth Amendment; (3) violation of 42 U.S.C. § 1983; and (4) declaratory judgment.

In an order filed on October 20, 2003, Judge Keep granted in part and denied in part the County's motion to dismiss. Judge Keep granted the motion as to Plaintiffs' second cause of action on the ground that section 253(c) does not provide for a private right of action. Judge Keep also dismissed Plaintiffs' equal protection claim without prejudice. However, the County's motion was denied as to all of the remaining claims. With respect to Plaintiffs' first cause of action, Judge Keep rejected the County's argument that section 253 was inapplicable and that section 332(c)(7) was the only avenue for challenging the Ordinance under the TCA.

On November 13, 2003, the County filed a motion for judgment on the pleadings, arguing that Plaintiffs' first cause of action should be dismissed because there is no private right of action under section 253(a). The County also argued that Plaintiff's third cause of action should be dismissed because there is no section 1983 right of action for violations of section 253(a). In an order filed on January 5, 2004, Judge Keep held that Plaintiffs had a private right of action under section 253(a) and could seek section 1983 remedies for violations of section 253(a). See Sprint Telephony PCS. L.P. v. County of San Diego, 311 F.Supp.2d 898 (S.D.Cal.2004).

On September 16, 2004, this case was reassigned to Judge Moskowitz.

On February 8, 2005, Pacific Bell was dismissed from the case with prejudice pursuant to a stipulation and order thereon.

II. FACTUAL BACKGROUND

A. The WTO

The WTO was enacted by the County in April, 2003. The WTO states that its purpose is "to establish comprehensive guidelines for the placement, design and processing of wireless telecommunications facilities in all zones within the County of San Diego."

The WTO establishes a four-tier application processing structure. (Zon.Ord. § 6985.) Tier 1 applies to invisible wireless facilities and facilities with very low visual impacts. Tier 2 applies to low visibility facilities in the commercial, industrial or special purpose zones, or facilities in any of the zones that are covered by a "Wireless Community Master Plan," as defined by section 6983(W). Tier 4 applies to non-camouflaged towers greater than 60 feet, or 15 feet above the maximum height limit in the zone, whichever is lower, and all facilities in residential and rural zones except those that fall within Tiers 1 and 2. Tier 3 applies to all facilities other than those meeting the criteria of Tiers 1, 2, or 4.

Applications under Tier 1 are processed as administrative site plans, which are reviewed by the Director of the Department of Planning and Land Use ("Director"). Applications under Tier 2 are processed similarly to Tier 1 applications except that they are also subject to community review. Applications under Tiers 3 and 4 are processed as minor use permits and major use permits, respectively. Whether wireless applications are processed under Tier 3 or 4, they must comply with the use permit requirements in §§ 7350-7399 of the County Zoning Ordinance.

The WTO requires all applicants to submit detailed information regarding the proposed wireless facility. Among other things, applicants are required to provide:

• a map showing all the applicant's existing sites in the local service network associated with the gap the facility is meant to close (Zon.Ord. § 6984(A))

• a visual impact analysis (including photo simulations) showing the maximum silhouette, viewshed analysis, color and finish palette and proposed screening (Zon.Ord. § 6984(B))

• evidence that establishes that the proposed facilities have been designed to the minimum height required from a technological standpoint for the proposed site (Zon.Ord. § 6985(C))

• the anticipated maintenance and monitoring program for the antennas, back-up equipment and landscaping (Id.)

• Noise and acoustical information (Id.)

• a plan showing all proposed landscaping, screening and proposed irrigation (Id.)

• a letter stating the applicant's willingness to allow other carriers to co-locate on their facilities (Id.)

Furthermore, the Director may "require additional information based upon specific project factors." (Zon.Ord. § 6984.)

The WTO also imposes general regulations and design regulations. (Zon.Ord. §§ 6985(C), 6987.) A number of these regulations pertain to requirements that the facilities be "camouflaged", "consistent with community character," "compatible with existing architectural elements, building materials and other site characteristics," and have minimal "visual impact." (Zon.Ord. §§ 6985(C)(1), (3), 6987(B), (F), (O).)

In addition, the WTO includes the following set-back requirement: "Telecommunications towers located adjacent to a residential use shall be set back from the nearest residential lot line by a distance at least equal to its total height or 50 feet, whichever is greater." (Zon.Ord. § 6985(C)(4).)

B. The Use Permit Requirements

The use permit procedures require that applicants submit documents including: a list of the names of all persons having an interest in the application (as well as the names of all persons having any ownership interest in the property involved); complete plans (including a plot plan); and a description of the property involved and the proposed use permit. (Zon.Ord. § 7354(b)(1)-(2).)

All applications for a use permit are subject to a public hearing requirement. (Zon.Ord. § 7356.) In determining whether to grant a use permit, the Planning Commission (or the Director, in the case of a minor permit) is required to make the following findings:

That the location, size, design, and operating characteristics of the proposed use will be compatible with adjacent uses, residents, buildings, or structures, with consideration given to:

1. Harmony in scale, bulk, coverage and density;

2. The availability of public facilities, services and utilities;

3. The harmful effect, if any, upon desirable neighborhood character;

4. The generation of traffic and the capacity and physical character of surrounding streets;

5. The suitability of the site for the type and intensity of use or development which is proposed; and to

6. Any other relevant impact of the proposed use ....

(Zon.Ord. § 7358(a).)

Use permits may be granted or modified "subject to the performance of such conditions ... and for such period of time as the Planning Commission, the Board of Supervisors ... or the Director... shall deem to be reasonable and necessary or advisable under the circumstances so that the objectives of the Zoning Ordinance shall be achieved." (Zon.Ord. § 7362.) A use permit may be revoked or modified if one or more of the conditions upon which such permit was granted have been violated. (Zon.Ord. § 7382(a)(2).) Any person violating any condition of a use permit shall be deemed guilty of a misdemeanor unless, in the discretion of the prosecutor, it is charged as an infraction. (Zon.Ord. § 7703.)

A major use permit decision may be appealed to the Board of Supervisors. (Zon.Ord. § 7366(a)(1).) A minor use permit decision may be appealed to the Planning Commission. (Zon.Ord. § 7366(a)(2).) Following the filing of an appeal, a public hearing shall be scheduled and noticed and all interested persons may appear and present evidence. (Zon.Ord. § 7366(h).) The authority having appellate jurisdiction may grant or modify the use permit subject to "specified...