Skyway Towers LLC et al v. The City of San Antonio et al
Filing
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ORDER Granting City Council's Motion to Dismiss: 10 MOTION to Dismiss filed by The City of San Antonio City Council. The City of San Antonio City Council terminated. Signed by Judge David A. Ezra. (aej)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
SKYWAY TOWERS LLC and F.A.
McCOMAS, INC.,
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Plaintiffs,
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vs.
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THE CITY OF SAN ANTONIO and
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THE CITY OF SAN ANTONIO CITY )
COUNCIL,
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Defendants.
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________________________________ )
CV. NO. 5:14-CA-410-DAE
ORDER GRANTING CITY COUNCIL’S MOTION TO DISMISS
On July 9, 2014, the Court held a hearing on the Motion to Dismiss
(“Motion”) filed by Defendant City of San Antonio City Council (the “City
Council”).1 (“Mot.,” Dkt. # 10.) Scott Thompson, Esq., and William Francis III,
Esq., represented Plaintiffs Skyway Towers LLC and F.A. McComas, Inc.; Shawn
Fitzpatrick, Esq. represented Defendant City of San Antonio City Council. After
careful consideration of the memoranda in support of and in opposition to the
Motion, and in light of the parties’ arguments at the hearing, the Court, for the
reasons that follow, GRANTS the City Council’s Motion.
1
This motion in no way concerns the City of San Antonio itself.
1
BACKGROUND
A.
Factual History
Skyway Towers LLC (“Skyway”) constructs, owns, and manages
wireless communication towers that allow wireless carriers to create and maintain
a network of “cell sites,” designed to send and receive radio signals. (“Compl.,”
Dkt. # 1 ¶ 10.) If Skyway is unable to construct a cell site within a given area, the
wireless carriers it serves will not be able to provide service to consumers within
that area. (Id. ¶ 11.)
Three wireless carriers, AT&T, T-Mobile, and Verizon, and their
separate engineering departments, found significant gaps in service coverage
within San Antonio. (Id. ¶¶ 13–14.) AT&T provided Skyway with a search area
established by its engineers, and requested that Skyway develop a wireless
communications facility within that search area so that it may remedy its gap in
coverage. (Id. ¶ 15.)
Skyway then sought suitable properties within the search area that
were appropriate for a wireless communications facility. (Id. ¶ 16.) After
evaluating properties within the search area, Skyway found that the property
located at 14440 Huebner Road (the “Site”) was suitable for constructing and
maintaining a wireless communications facility. (Id. ¶ 17.)
The Site, owned by Plaintiff F.A. McComas, Inc. (“McComas”) is
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zoned for commercial use. (Id. ¶ 20.) However, because the Site is located in the
Edwards Recharge Zone District, it is subject to the Edwards Aquifer Protection
Standards (chapter 34, article VI, division 6 of the San Antonio City Code) and
requires Specific Use authorization by the City of San Antonio Water System
(“SAWS”). (Id.) Again, because the Site is located in the Edwards Recharge Zone
District, any development on the Site also requires review and approval by the
Texas Commission on Environmental Quality (“TCEQ”). (Id. ¶ 20.)
In February 2013, at Skyway’s request, McComas filed an
Application for the Specific Use Permit (the “Application”). (Id. ¶ 23.) The City
of San Antonio construed the Application as a request for a “zoning change.” (Id.)
Pursuant to the Edwards Aquifer Protection Standards, the Application was
referred to the SAWS for review and recommendation. (Id. ¶ 25.) On March 18,
2013, SAWS recommended approval of the Application, subject to compliance
with particular recommendations designed to address the environmental concerns
posed by development of the Site. (Id. ¶ 26.) On May 28, 2013, TCEQ approved
Skyway’s Modification of an Approved Water Pollution Abatement Plan,
providing state authorization for the proposed wireless facility. (Id. ¶ 27.)
On April 16, 2013, the application was presented to the City Zoning
Commission. (Id. ¶ 28.) The Zoning Commission delayed its decision on the
Application until December 17, 2013 to allow Skyway to continue their meetings
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with the Hunter’s Creek North neighborhood, which objected to the proposed 150
foot tall monopole wireless communications tower.2 (Id. ¶¶ 28–31.) On December
17, 2013, the City’s Zoning Commission recommended approval of the
Application. (Id. ¶¶ 28–31, 44.)
Despite the recommendation, upon the request of City Councilman
Nirenberg, Skyway investigated other potential locations for the proposed wireless
communications tower. (Id. ¶¶ 45–47.) Skyway contacted the owners of the only
two other properties within the search area that met the zoning and building
requirements. (Id. ¶ 47.) Both owners responded that they were not willing to
allow Skyway to construct a communications tower on their property. (Id.)
On April 3, 2014, Skyway and McComas presented the Application to
the City Council. (Id. ¶ 48.) They presented evidence that the proposed wireless
communications tower complied with City Code requirements, that the Site was
the only feasible site, and that the Zoning Commission, SAWS, and TCEQ
recommended approval. (Id. ¶¶ 50–55.) At the April 3, 2014 City Council
meeting, two community members, one of whom stated that he represented the
Hunter’s Creek North Neighborhood Association, spoke in general opposition to
the Application. (Id. ¶ 56.)
2
Pursuant to negotiations between Plaintiffs Skyway and McComas and the
Hunter’s Creek North Neighborhood, Plaintiffs agreed to deed restrictions limiting
the Site to only one tower of 150 feet, and changing the proposed tower to a
“stealth flagless flagpole.” (Compl. ¶¶ 38–42.)
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According to Skyway and McComas, “the City Council did not
discuss any of the evidence presented on the Application and did not discuss any
potential grounds for denial, beyond the mere statement that the neighborhood was
opposed.” (Id. ¶ 70.)
After the close of public comment on the Application, Councilman
Nirenberg stated that he disagreed with the recommendations of the Zoning
Commission, the Zoning Staff, the SAWS, and TCEQ. (Id. ¶ 57.) Councilman
Nirenberg moved to deny the Application, stating that some of the neighborhoods
in the vicinity of the site were opposed to any wireless communications tower in
the area. (Id.) Councilman Gallagher seconded Councilman Nirenberg’s motion
to deny the Application. (Id. ¶ 58.) Councilman Gallagher stated that he based his
decision on the general opposition of the surrounding neighborhood. (Id.)
The City Council subsequently voted to deny the Application. (Id.
¶ 71.) The City Council did not issue any written documentation of its denial of
the Application or the reasons for the denial. (Id. ¶¶ 72–73.)
B.
Procedural History
On May 2, 2014, Plaintiffs Skyway and McComas filed a Complaint
for Declaratory and Injunctive Relief and Expedited Treatment against Defendants.
(Id. at 1.) Plaintiffs brought three causes of action against the City of San
Antonio and the City Council under the Communication Act’s Mobile Services
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Provision, 47 U.S.C. § 332(c)(7). (Id. ¶¶ 78–105.) Plaintiffs contend that
Defendants (1) failed to issue a written decision (id. ¶¶ 78–85), (2) failed to
support the decision with substantial evidence (id. ¶¶ 86–96), and (3) caused an
effective prohibition of personal wireless service (id. ¶¶ 96–105).
On May 30, 2014, Defendants filed an Answer.3 (Dkt. # 9.) On June
4, 2014, the City Council filed the instant Motion to Dismiss.4 (Mot.) (Id.) On
June 20, 2014, Plaintiffs filed an Opposition to the City Council’s Motion to
Dismiss. (“Resp.,” Dkt. # 13.)
LEGAL STANDARD
The City Council relies on Federal Rule of Civil Procedure 12(b)(6) in
support of its Motion to Dismiss. Rule 12(b)(6) authorizes dismissal of a
complaint for “failure to state a claim upon which relief can be granted.” Review
is limited to the contents of the complaint and matters properly subject to judicial
notice. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322
(2007). In analyzing a motion to dismiss for failure to state a claim, “[t]he court
accepts ‘all well-pleaded facts as true, viewing them in the light most favorable to
the plaintiff.’” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.
2007) (quoting Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d
3
In their Answer, Defendants moved to dismiss the City Council as a party in the
action. (See Dkt. # 9 ¶ 3.) However, the Court requested that Defendants file the
Answer and Motion to Dismiss separately.
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464, 467 (5th Cir. 2004)).
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead
“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). When a complaint fails to adequately state
a claim, such deficiency should be “exposed at the point of minimum expenditure
of time and money by the parties and the court.” Id. at 558 (citation omitted).
In Iqbal, the Supreme Court established a two-step approach for
assessing whether a complaint has sufficient facial plausibility to survive a Rule
12(b)(6) motion. First, a reviewing court must identify all of the conclusory
allegations and disregard them, for they are “not entitled to an assumption of
truth.” Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009); see also Plotkin v. IP Axess
Inc., 407 F.3d 690, 696 (5th Cir. 2005) (“We do not accept as true conclusory
allegations, unwarranted factual inferences, or legal conclusions.”). “The tenet that
a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions,” and courts “are not bound to accept as true a
legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (internal
quotations and citations omitted).
Second, a reviewing court must “consider the factual allegations [in
the complaint] to determine if they plausibly suggest an entitlement to relief.”
Iqbal, 556 U.S. at 680. “A claim has facial plausibility when the plaintiff pleads
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factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. at 678. “It follows, that ‘where
the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but has not ‘shown’—that
the pleader is entitled to relief.’” Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir.
2009) (quoting Iqbal, 556 U.S. at 677). A complaint need not include detailed
facts to survive a Rule 12(b)(6) motion to dismiss. See Twombly, 550 U.S. at
555–56. In providing grounds for relief, however, a plaintiff must do more than
recite the formulaic elements of a cause of action. See id. at 556–57. Thus,
although all reasonable inferences will be resolved in favor of the plaintiff, the
plaintiff must plead “specific facts, not mere conclusory allegations.” Tuchman v.
DSC Commc’ns Corp., 14 F.3d 1061, 1067 (5th Cir. 1994).
DISCUSSION
The City Council presents three arguments in support of its motion for
dismissal. First, it contends that Plaintiffs’ Complaint does not seek relief from, or
against, the City Council. (Mot. ¶ 5.) Second, it argues that Plaintiffs’ causes of
action under § 332(c)(7)(B)(iii) are invalid against the City and, presumably, the
City Council, because “the City’s zoning decisions are regulatory, legislative
decisions rather than adjudicative decisions.” (Id. ¶ 2.) Third, and most
importantly, it asserts that it is not a jural entity capable of being sued under state
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and municipal law. (Id. ¶¶ 6–7.)5
I.
Plaintiffs’ Complaint Seeks Relief From the City Council
The City Council first contends that Plaintiffs’ claims against them
must be dismissed because Plaintiffs do not seek relief from, or against, the City
Council. (Mot. ¶ 5.) Pursuant to Rule 12(b)(6), dismissal of a defendant against
whom the plaintiff fails to seek damages or other relief is appropriate. See Judy
Chou Chiung-Yu Wang v. Prudential Ins. Co. of Am., 439 F. App’x 359, 367 (5th
Cir. 2011). However, as Plaintiffs correctly note in their Opposition to the Motion,
Plaintiffs establish that the Complaint refers to the City of San Antonio and the
City Council collectively as “the City.” (Resp. at 3; Compl. at 1.) Therefore, the
allegations and causes of action against “the City” refer to both the City and the
City Council. Accordingly, dismissal of the claims against the City Council on this
ground is not appropriate and is denied.
II.
Whether § 332(c)(7)(B) Applies to the City Council’s Action
The City Council next argues that Plaintiffs’ § 332(c)(7)(B)(iii) cause
of action does not apply to it because its zoning decisions are regulatory,
5
The City Council also cites its Answer (Dkt. # 9), arguing that “Plaintiffs’ use of
47 U.S.C. § 332(c)(7)(B) violates the US Constitution and that the statute itself is
unconstitutional if it can be used to compel the City Council to legislate, or to
legislate in a certain way.” (Mot. ¶ 9.) However, the City Council concedes that
this argument is “the proper subject of a motion for summary judgment, or trial,
and is not asserted in this motion.” (Id.) Therefore, the Court will not address this
argument.
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legislative actions rather than adjudicative decisions and § 332(c)(7)(B)(iii) applies
only to adjudicative decisions. (Mot. ¶ 2.) However, this is a substantive
argument that the Court need not reach for the reasons specified infra. Instead, this
argument better suited in the context of a motion for summary judgment.
III.
The City Council, as the Governing Body of the City, May Not be Sued
The City Council next contends that the Plaintiffs’ claims against it
should be dismissed because it is not a jural entity capable of suing or being sued.
(Mot. ¶ 6.) The City Council maintains that the City of San Antonio is the only
proper party to defend against Plaintiffs’ claims.
The capacity of a governmental entity to sue or be sued in federal
court is determined by state law. See Fed. R. Civ. P. 17(b); Wright, Miller, &
Kane, 6A Federal Practice and Procedure: Civil 2d § 1562 (2d ed. 1990). Under
Texas law, a city is “allowed to designate whether one of its own subdivisions can
be sued as an independent entity.” Darby v. Pasadena Police Dep’t, 939 F.2d 311,
313 (5th Cir. 1991); accord Motel 6 Operating, L.P. v. Gaston Cnty., N.C., 3:08CV-00390-FDW, 2009 WL 1940499 (W.D.N.C. July 2, 2009) (“Political
subdivisions of a state or local government have capacity only if the law creating
them recognizes them as separate legal entities having capacity to sue or be sued.”
(citing 4 James Wm. Moore et al., Moore’s Federal Practice ¶ 17.26 (3d ed.
2009))). This designation is found in the instrument that conferred authority to the
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subdivision. Wright, Miller, & Kane, 6A Federal Practice and Procedure: Civil 2d
§ 1562 (“[A] governmental corporation . . . is a separate entity and its capacity to
sue and be sued is determined in the same way as is the capacity of a private
corporation under Rule 17(b)—by the law under which it was organized.”).
The subdivision must “enjoy a separate legal existence” meaning that
it must be a “separate and distinct corporate entity.” Darby, 939 F.2d at 313
(quoting Mayes v. Elrod, 470 F. Supp. 1188, 1192 (N.D. Ill. 1979)); see also Kirby
Lumber Corp. v. State of La. through Anacoco-Prairie State Game and Fish
Comm’n, 293 F.2d 82, 83 (5th Cir. 1961) (holding that a political subdivision
cannot pursue a suit on its own unless it is “a separate and distinct corporate
entity”). As a result, unless a city has taken explicit steps in the instrument to grant
jural authority to the subdivision, the subdivision cannot engage in any litigation
except in concert with the city itself. Darby, 939 F.2d at 313 (citing Kirby Lumber
Corp., 293 F.2d at 83; Taylor v. Adm’r of Small Bus. Admin., 722 F.2d 105, 107
(5th Cir. 1983)); see also Thomas-Melton v. Dall. Cnty. Sheriff’s Dep’t, 39 F.3d
320 (5th Cir. 1994) (indicating that even if the county were added as a defendant,
the plaintiff would still need to show that a county subdivision was an entity
amenable to suit in order to engage in litigation in concert with the government).
To illustrate, in Darby, the Fifth Circuit found that the Pasadena
Police Department was not a separate and distinct corporate entity from the City of
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Pasadena, Texas because the City did not expressly grant “its police department the
capacity to engage in separate litigation.” 939 F.2d at 315. As such, the Pasadena
Police Department was not a legal entity distinguishable from the City and
therefore could not be sued separately. Id. Similarly, in Avery v. Burke County,
the Fourth Circuit held that neither the North Carolina Board of Health nor the
Board of Social Services were legal entities separate and apart from Burke County
because “[b]oth boards [were] created by, and [were] extensions of, the county.”
660 F.2d 111, 114 (4th Cir. 1981) (citing N.C. Gen. Stat. §§ 108-7 and 130-13).
In support of their argument that the City Council is a separate jural
entity, Plaintiffs appropriately cite to the San Antonio City Charter. See Wright,
Miller, & Kane, 6A Federal Practice and Procedure: Civil 2d § 1562 (noting that a
subdivision’s jural authority derives from the instrument that conferred authority to
the subdivision). Plaintiffs first cite San Antonio City Charter Art. I, Section 3,
Paragraph 1, which confers the power to sue and to be sued to the City of San
Antonio. Then, Plaintiffs cite Article II, Section 4, which states: “Subject to the
provisions of [the] Charter, the [City] Council shall have and exercise all powers
now or hereafter conferred on the City.” Combining these two provisions,
Plaintiffs contend that “by granting the City the power to sue and be sued and then
granting the City Council all powers conferred on the City, the City Charter does
explicitly grant the City Council the power to sue and be sued.” (Resp. at 5.)
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However, Plaintiffs’ reliance on the Charter conferring general
powers of the City to the City Council does not imply that the City conferred jural
authority to the City Council. As stated in Darby, the entity must be expressly
granted the ability to engage in separate litigation from the City. 939 F.2d at 315.
Here, the Charter does not expressly grant the City Council with the authority to
engage in litigation independently of the City. The City Council’s powers,
including the power to sue and be sued, are only conferred upon it through its role
as the governing body of the City. The Charter does not explicitly state that the
City Council has the power to sue and be sued as a separate jural entity from the
City.
Moreover, even crediting Plaintiffs’ reading of the Charter, the City
Council is not a “separate entity” apart from the City. See Darby, 939 F.2d at 313
(“In order for a plaintiff to sue a city department, it must ‘enjoy a separate legal
existence.’”). By granting the City Council all of the powers of the City and
establishing it as the City’s governing body, it is clear that the City Council is not
separate from the City. Rather, the City Council exclusively acts on behalf of the
City. See Johnson v. Hurtt, 893 F. Supp. 2d 817, 826 (S.D. Tex. 2012) (finding
that the Houston Police Department did not enjoy a separate legal existence apart
from the City as “merely an arm of the City because its creation and functions are
dependent on the will of the City’s governing body”). There is no provision in the
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City Charter that allows or grants the City Council the power to function
independently of, or as a separate government unit, from the City. See U.L.
Coleman Co., Ltd. v. Bossier City-Parish Metro. Planning Comm’n, CIV. A. 082011, 2009 WL 3518173, at *2 (W.D. La. Oct. 29, 2009) (finding that the Office
of Permits was not a separate legal entity from the city because there were no
provisions in the city charter “allowing or otherwise granting the Office of Permits
the power to function independently of, or as a separate government unit, from the
City”).
Plaintiffs have failed to show that the City Council enjoys a separate
legal existence from the City. The City Council cannot be sued independently
from the City and thus the City Council should be dismissed from Plaintiffs’
action.
IV.
City Council is Not a Required Defendant
Despite finding that the City Council cannot be sued because it is not
a separate jural entity, the Court writes separately to address Plaintiffs’ concern
that the relief they seek can only be obtained from the City by an act of the City
Council. (Id.) To support this argument, Plaintiffs cite various cases indicating
that the proper remedy for a violation of § 332(c)(7) is an order requiring that the
local authority grant all necessary permits and applications to allow the approval
and construction of the denied wireless communications tower. (Id. at 3–4 (citing
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Preferred Sites, LLC v. Troup Cnty., 296 F.3d 1210, 1222 (11th Cir. 2002)
(holding that “an injunction ordering issuance of a permit is an appropriate remedy
for violation of [the Act]”); Brehmer v. Planning Bd. of Town of Wellfleet, 238
F.3d 117, 120–22 (1st Cir. 2001); Omnipoint Corp. v. Zoning Hearing Bd. of Pine
Grove Tp., 181 F.3d 403, 409–10 (3d Cir. 1999); Cellular Tel. Co. v. Town of
Oyster Bay, 166 F.3d 490, 497 (2d Cir. 1999)).)
However, the Court is not persuaded that the City Council is a
required defendant. Upon review of Plaintiffs’ cited cases, only Cellular Tel. Co.
includes both a town and the town board, but that case did not specifically require
the town board as a party. See 166 F.3d at 497. In fact, the court held that the
“Town”—not the “Town Board” specifically—was required to issue the permits.
Id. Similarly, despite Preferred Sites, LLC holding that the remedy for a
§ 332(c)(7) violation is the issuance of a permit, that case does not even include a
city council or similar subsidiary body as a defendant. See 296 F.3d at 1210.
Therefore, the Court fails to see how these cases demonstrate that the City Council
is necessary for Plaintiffs to acquire their injunctive remedy. Plaintiffs can seek
the same remedy against the City itself without the City Council remaining a party
defendant.6
6
In fact, the City Council’s attorney admitted as such at the July 11, 2014 hearing.
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CONCLUSION
For the foregoing reasons, the Court GRANTS the City Council’s
Motion to Dismiss (Dkt. # 10). However, as noted above, the City of San Antonio
is still a party Defendant to this action.
IT IS SO ORDERED.
DATED: San Antonio, Texas, July 14, 2014.
_____________________________________
David Alan Ezra
Senior United States Distict Judge
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