T-MOBILE WEST CORPORATION v. CITY AND COUNTY OF SAN FRANCISCO (U.S. District Court, Northern District of California, February 14, 2011.)
A wireless communications provider (the "Plaintiff") applied for a conditional use permit ("CUP") to install a wireless telecommunications facility consisting of eight panel antennas mounted to the existing elevator penthouse structures of a four-story, mixed-use building in San Francisco. Following a hearing on the matter, the Planning Commission approved the application and authorized the installation of the facility. The Planning Commission found, among other things, that the facility was "necessary or desirable, and compatible with, the neighborhood or the community." A resident appealed the Planning Commission's decision to the City Board, complaining that the facility was not necessary, not desirable and not compatible with the neighborhood.
The City Board held a public hearing on the appeal. The resident submitted data, collected by another resident, on signal strength in the vicinity of the proposed site. This resident, who was a customer of the Plaintiff living near the proposed facility site, measured signal strength using a field test mode on the resident's phone. The values from the phone apparently showed adequate coverage. The resident also asserted, and the Plaintiff did not dispute, that Plaintiff had at least eight existing wireless facilities within a mile of the proposed location. The resident also offered Plaintiff's coverage maps from its website, which approximated "anticipated coverage outdoors" and represented that Plaintiff had good voice and data coverage in the vicinity. Based on this, the resident argued that the facility was not necessary.
At the public hearing, Plaintiff responded with data showing that its coverage in the neighborhood "would be greatly improved with this project." A map showed that coverage in the neighborhood ranged from good to poor. Specifically, in the area south of the proposed site, a signal could be obtained only by "walking on the street." Plaintiff asserted that the "only way to get the accurate picture of the existing signals is to drive the neighborhood using the appropriate software to gauge the signals" and that signal measurement entails "a fairly sophisticated scientific testing process, " which requires analysis by engineers. Plaintiff also offered data that, in the vicinity of the proposed site, there were dropped calls and that it received three complaints from its customers using phones within the neighborhood. The Court noted, however, that the three complaints originated in an area that would not have benefitted from the proposed facility. Several other members of the public objected to the proposed facility. Some raised concerns about the health effects of radio frequency emissions. However, at the beginning of the hearing, a deputy city attorney informed the City Board that the Telecommunications Act of 1996 prohibits local governments and agencies from disapproving a wireless transmission facility based on such concerns. In an 11-0 vote, the City Board reversed the Planning Commission's decision to approve Plaintiff's CUP application.
The Plaintiff brought a complaint under the Telecommunications Act of 1996 ("TCA"). Pursuant to the TCA, "[a]ny decision... to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record." 47 U.S.C. § 332(c)(7)(B)(iii)). Although Plaintiff alleged that the City violated the TCA in a number of ways, the parties' motions pertained only to this limitation. Plaintiff sought partial summary judgment that the City's written findings did not constitute a "decision in writing" and that, even if they did, they were not supported by substantial evidence. The City sought partial summary judgment that its determination satisfied the "decision in writing" and substantial evidence requirements of § 332(c)(7)(B)(iii).
Decision In Writing. The Court indicated that the "TCA requires local zoning authorities to issue a written decision separate from the written record which contains sufficient explanation of the reasons for the decision to allow a reviewing court to evaluate the evidence in the record supporting those reasons" citing MetroPCS, Inc. v. City & Cnty. of S.F., 400 F.3d 715, 723 (9th Cir. 2005). Under this standard, it is not sufficient for an authority to stamp the word "DENIED" on a party's application. However, this standard does not require localities to explicate the reasons for their decision and link their conclusions to specific evidence in the written record.
The Court held that the City Board's findings satisfied the "decision in writing" requirement of § 332(c)(7)(B)(iii). The five-page document recited the facts of Plaintiff's application, referred to the public hearing, specified the resident's and Plaintiff's arguments at the hearing and identified the evidence submitted by the resident to support his position. The findings further stated that the City Board's decision was based on the record, which contained the Planning Commission's findings, testimony presented at the public hearing and the submitted documentary evidence. Because there was no need to tie conclusions to specific evidence and because the findings "contain sufficient explanation to enable judicial evaluation of the evidentiary support for its rationale," they were sufficient.
Substantial Evidence. The Court stated that although the TCA does not define the term "substantial evidence," courts have held that this language is meant to trigger the traditional standard used for judicial review of agency decisions. Under this deferential standard, courts may not overturn a locality's decision on "substantial evidence" grounds if that decision is authorized by applicable local regulations and supported by a reasonable amount of evidence (i.e., more than a "scintilla" but not necessarily a preponderance). In other words, the evidence must constitute a showing that a reasonable mind might accept as adequate, and courts must consider the entirety of the written record.
The Court noted that the San Francisco Planning Code authorizes consideration of a neighborhood's need for a proposed use in evaluating conditional use permit applications. The Court held that the written record contained evidence that there was an adequate signal in the neighborhood, few calls were dropped, a customer of Plaintiff was satisfied and no members of the public expressed support of Plaintiff's application. The Court decided that a reasonable mind could accept this evidence as adequate to support a conclusion that the neighborhood surrounding the proposed site did not need the proposed facility.
Plaintiff contended that the City Board could not reasonably rely on the evidence submitted by the resident because determining the adequacy of coverage is a "complex engineering issue." Plaintiff apparently challenged the data submitted by the resident as unscientific and distanced itself from its advertising materials. The Court stated that although it is true that a resident who took signal measurements stated that it was not a scientific test, there was no evidence in the written record directly challenging the accuracy of the data. Nor was there evidence in the written record suggesting that Plaintiff's advertising materials misrepresented the signal strength in the neighborhood. While the documents stated that they only approximated outdoor coverage, there was no evidence in the written record suggesting that the City Board should have discounted them.
The Court concluded that the City Board issued a decision in writing that was supported by substantial evidence.
For a copy of this decision, contact Anthony Dorland at dorlanda@moss-barnett.com.