Sposi et al v. Santa Clara City
Filing
59
MEMORANDUM DECISION AND ORDER-granting 46 Motion to Compel; denying 22 Motion for TRO; denying 31 Motion to Dismiss Party. See Order for details. Signed by Judge Clark Waddoups on 10/3/18. (jmr)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
MARY BETH SPOSI, an individual; and
MENLO SMITH, an individual,
MEMORANDUM DECISION
AND ORDER
Plaintiffs,
v.
Case No. 2:17-cv-1057-CW
SANTA CLARA CITY, UTAH, a Utah City,
VERIZON WIRELESS, and WINDY PEAK,
LC.,
Judge Clark Waddoups
Defendants.
This case is an appeal from a decision by Santa Clara City, Utah (the “City”) in 2017 to
issue a conditional use permit to Verizon Wireless (“Verizon”) to build a cell tower on property
owned by Windy Peak, LC (“Windy Peak”). Plaintiffs Mary Beth Sposi and Menlo Smith are
property owners who challenge the City’s decision to issue the special permit. They now move
to enjoin Verizon from building the approved tower. They also move to compel the City to
supplement the record with prior application materials filed by Verizon in 2016. Conversely,
Verizon and Windy Peak move to dismiss the action in its entirety on statute of limitations
grounds.
DISPOSITION OF MOTIONS
The court held a hearing on August 23, 2018 to address each of the motions. For the
reasons stated on the record, the court denies the Motion to Dismiss filed by Verizon and Windy
Peak (ECF No. 31). The court concludes 47 U.S.C. § 332(c)(7)(B)(v) required Plaintiffs to file
suit against the City within thirty days after its adverse ruling. Plaintiffs did so. The section
does not afford Plaintiffs a right of action against Verizon and Windy Peak. Thus, failing to join
those defendants within thirty days does not act as a statutory bar. Moreover, while Verizon and
Windy Peak may be necessary parties under Rule 19 of the Federal Rules of Civil Procedure, as
discussed on the record, they are not indispensable parties when the Rule 19(b) balancing factors
are considered. After the court issued its ruling from the bench, Verizon and Windy Peak opted
to continue as parties in the case and participate in a manner similar to those who intervene as of
right under Rule 24(a). Accordingly, they shall continue as defendants in this matter.
For the reasons stated on the record, the court grants Plaintiffs’ Motion to Compel Santa
Clara to Supplement Record (ECF No. 46). The City acknowledges its 2016 Decision is part of
the record. See Appx. of Record Evidence, Ex. 1, at Appeal Rec., Vol. I, at 9 (ECF No. 35). That
decision references the exhibits at issue in Plaintiffs’ Motion. See 2016 Decision, Appeal Rec.,
Vol. I, at 11-23. The record also provides sufficient evidence to show the Planning Commission
and the City considered the 2016 application materials when it reached its decision on Verizon’s
2017 application. See e.g., Verizon Letter, Appeal Rec., Vol. II, at 289-95 (ECF No. 36)
(responding to the City’s request that Verizon address each point made in the 2016 Decision as
part of the City’s consideration of the 2017 application). Thus, pursuant to Utah Code Ann. §
10-9a-801(8)(a)(ii), all exhibits listed on the first “Appendix of Record Evidence,” Appeal Rec.,
Vol. I, at 23, shall be filed by the City as part of the Appeal Record.
For the reasons stated below, the court denies Plaintiffs’ Motion for Temporary
Restraining Order and Preliminary Injunction (ECF No. 22) solely on the basis that Plaintiffs’
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have failed to show irreparable harm. Because the motion fails on that essential requirement, the
court need not reach the issue of whether the other requirements may have been satisfied.
FACTUAL BACKGROUND 1
In 2016, the City overturned a decision by its Planning Commission to issue a conditional
use permit to Verizon for construction of a 100-foot cell tower. The City concluded that
Verizon’s application failed to satisfy applicable requirements.
Included among the City’s
findings and conclusions were the following main determinations:
1.
“The use will be detrimental to the aesthetics and property in the area.”
2.
“The use would not comply with Santa Clara’s zoning regulations” because (a)
the proposed location “is designated as open space under Santa Clara’s general
plan,” (b) the site “is not already developed with telecommunications facilities,”
and (c) “Verizon failed to submit any studies about feasible alternatives that
would have less severe environmental impacts.”
3.
Verizon failed to show “the proposed tower is necessary to remedy a significant
gap in coverage.”
2016 Decision, Appeal Rec., Vol. I, at 14-18.
On January 13, 2017, Verizon filed a new application.
Id. at 25. The City hired
CityScape Consultant Inc. (“CityScape”), a telecommunications expert, to review the materials
submitted by Verizon. CityScape reviewed whether Verizon had shown a need for a cell tower
and whether its application met all local requirements. Appeal Rec., Vol. II, at 273. It noted that
The court does not provide an exhaustive factual background about this dispute because it is
deciding the Preliminary Injunction motion solely on the ground that Plaintiffs failed to show
irreparable harm.
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Santa Clara had the right to regulate telecommunication facilities, including their location, type
of structure, collocations, and so forth. Id. It also noted, however, that Santa Clara’s rights were
not unlimited because federal law prohibits local governments from enacting laws that
effectively preclude providers from developing their networks. Id. Moreover, one provider
cannot be preferred over another. Id.
Significantly, CityScape informed Santa Clara that while Verizon had shown a need to
increase its coverage, primarily in the St. George area, it had the best service coverage out of the
four main providers in the region. Appeal Rec., Vol. I, at 270; Appeal Rec., Vol. II, at 276-77.
Thus, if Verizon was seeking to build a tower, CityScape said the other providers likely would
seek to build a tower by Verizon’s or locate their antenna on the same tower, thereby
necessitating an increased height. Id. The City therefore faced the possibility of a taller tower or
even more structures in the proposed view corridor if it approved Verizon’s application.
CityScape provided a summary of its findings on May 1, 2017. Based on the information
before it, CityScape concluded that two reasonable locations existed for the cell tower: Frei
Farm, which was the proposed site, and Arrowhead School. Appeal Rec., Vol. II, at 277.
CityScape opined that the Arrowhead School site actually “would do more to benefit Santa
Clara” even if it only had a 50-foot tower compared to a 100-foot tower that would be necessary
for the Frei Farm to provide equal coverage. Id.
CityScape further noted that Verizon’s application failed to provide all necessary
information. Id. at 275. Through its application materials and during “a narrative,” Verizon
provided “reasonable information,” but CityScape commented there still was “substantial
unknown information, mostly concerning the design parameters of each alternative location,”
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and that the City should explore those issues at the Planning Commission hearing. 2 Id. at 275,
278.
The City Attorney then asked Verizon to provide “a written letter or statement addressing
each item of the Appeal Authority decision issued on August 3, 2016,” which denied Verizon’s
original application. Appeal Rec., Vol. II, at 289. Verizon asserted that was not a condition
required by its new application, but it nevertheless provided a written response. Id. The first
item Verizon addressed was the impact on aesthetics and property in the area. It said its tower
would effectively blend with the area because it lowered the tower from 100 feet down to 60 feet
and it would paint it. Id. at 290. Additionally, it stated it had provided photo simulations from
different points, all of which showed the tower would “blend in with existing natural and
manmade environment.” Id.
Verizon further asserted the appraisal used in reaching the 2016 Decision was flawed and
should not be considered. Id. It cited to a study that said “[m]ore than 75% of prospective home
buyers said a good cellular connection was important to them.” Id. (citation omitted). Thus, by
providing better cell service, Verizon contended it was not detrimentally impacting property in
the area. Id. Verizon, however, did not provide any appraisal or independent assessment to
show the actual impact of the tower on the relevant property.
On May 9, 2017, the Planning Commission held a hearing and then evaluated whether
On May 8, 2017, Verizon provided further commentary to the City about why an alternative
site at the Sunbrook Golf Course in St. George was not feasible. Appeal Rec., Vol. II, at 299. A
dispute exists about whether Verizon’s attempts to make contact with St. George about the site
were made to the proper person and whether it fully explored the options for adequate access to
the property. Additionally, Verizon acknowledged at the hearing that it had not provided
propagation data for that site in the same manner that it had for the other alternative sites. These
issues, however, go to the merits of the case and not to whether Plaintiffs will suffer irreparable
injury absent an injunction.
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Verizon had met each requirement to obtain a conditional use permit. Appeal Rec., Vol. II, at
366-69. To obtain such a permit, Santa Clara requires an applicant to show “[t]hat the use will
not be detrimental to the health, safety, welfare, or aesthetics, or detrimental to property or
improvements in the area. Santa Clara City Code § 17.40.060(B) (emphasis added). For
telecommunication facilities, to the extent allowed by law, the City must “[e]nsure against the
creation of visual blight within or along the city’s scenic corridors and ridge lines.” Id. §
17.42.010(B). Additionally, the City requires the following:
No telecommunication facility shall be installed . . . in or at a
location . . . designated with a . . . park or open space (OS) on the
Santa Clara general plan, unless it blends with the surrounding
existing natural and manmade environment in such a manner as to
be effectively unnoticeable and a finding is made that no other
location is technically feasible.
Id. § 17.42.190(B) (emphasis added).
It is undisputed that the location of the site at issue is designated as an open space on
Santa Clara’s general plan. Thus, the question of whether the tower would be effectively
unnoticeable and not create a visual blight to the detriment of aesthetics and property values in
the area was before the City. When the Planning Commission reached this item during its
deliberations, however, it assumed federal law preempted its local statutes, and therefore, did not
specifically address the aesthetics and property value factors. Appeal Rec., Vol II, at 366-67.
The Commission then approved the permit and Plaintiffs appealed that decision to the City
Council. 3
In Plaintiffs’ July 25, 2017 written statement to the City, they referenced a March 23, 2017
letter that laid out a portion of Plaintiffs’ positions. Appeal Rec., Vol. II, at 383. Plaintiffs
incorporated that letter into its written statement. The Appeal Record submitted to the court does
not appear to have that March 23, 2017 letter. See Appx. of Record Evidence, at Appeal Rec.,
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Significant for this motion only, 4 during the 2016 permit process, Plaintiffs provided an
appraisal showing the detrimental impact on their property value if a 100-foot tower was built in
their view scape. Verizon’s 2017 application proposed a 60-foot tower and offered to make it a
stealth structure rather than a monopole. Plaintiffs did not provide evidence about the impact on
their property values if a 60-foot stealth tower was built in their view scape, or if multiple towers
were built to accommodate other providers.
On appeal to the City Council, however, Plaintiffs did contend that Verizon’s photo
simulations were taken from selective locations and none of them were taken from the
subdivisions that would face the greatest impact. Id. at 383-84. Thus, according to Plaintiffs,
Verizon had failed to provide sufficient evidence on that factor, as well as others, 5 and should
not have been issued a conditional use permit. Id. at 383-84, 386.
Following a hearing, where it heard from the parties and others in the community, on
August 2, 2017, the City Council affirmed the Planning Commission’s decision subject to certain
conditions to “better mitigate the anticipated detrimental effects of Verizon’s proposed use.”
Appeal Rec., Vol. I., at 5. The City limited the tower height to 60 feet. Id. at 5-6. It directed
that the tower structure be modified to accommodate three other carriers and that the tower be
Vol. I, at 9. To the extent the City has not provided it as part of the record, the court directs the
City to do so.
To obtain a conditional use permit, Verizon had the burden of showing its cell tower did not
detrimentally impact property values. On a motion for preliminary injunction, however,
Plaintiffs bear the burden of showing irreparable harm.
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Whether Verizon fulfilled its obligation to provide adequate photo simulations is also in
dispute. Verizon contends it provided photographs specifically requested by Plaintiffs and that it
would have provided more had Plaintiffs timely raised their objections. Appeal Rec., Vol. II., at
405-06.
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concealed within a structure that was “more aesthetically compatible with the surrounding area.”
Id. at 6. It did not address how better mitigation and the tower being “more aesthetically
compatible,” as opposed to aesthetically compatible, satisfied the statutory requirements that the
tower not be detrimental to nearby property owners.
ANALYSIS
A preliminary injunction is “an extraordinary remedy that may only be awarded upon a
clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7, 22 (2008) (citation omitted). To obtain an injunction, Plaintiffs must show (1) they
are “substantially likely to succeed on the merits;” (2) they “will suffer irreparable injury if the
injunction is denied;” (3) the threatened injury to them “outweighs the injury the opposing party
will suffer under the injunction; and (4) the injunction would not be adverse to the public
interest.” Beltronics USA, Inc. v. Midwest Inventory Distribution, LLC, 562 F.3d 1067, 1070
(10th Cir. 2009) (citation omitted). Of these factors, “[a] showing of probable irreparable harm
is the single most important prerequisite for the issuance of a preliminary injunction.” N.M.
Dep’t of Game & Fish v. United States DOI, 854 F.3d 1236, 1249 (10th Cir. 2017) (quotations
and citations omitted). Thus, a movant must show “such injury is likely before the other
requirements for the issuance of an injunction will be considered.”
Id. (emphasis added)
(quotations and citations omitted).
To prove irreparable harm, Plaintiffs must show their injury is “certain, great, actual and
not theoretical.
Id. at 1251 (quotations and citation omitted).
It requires showing “that
irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22 (emphasis in
original) (citations omitted). In other words, Plaintiffs must do more than allege they may suffer
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harm. They must show such harm is probable and that such “harm cannot be compensated after
the fact.” Dep’t of Game & Fish, 854 F.3d at 1250 (citations omitted).
In this case, Plaintiffs assert Verizon failed to come forward with sufficient evidence to
show the tower would not be a detriment to aesthetics and nearby property values. They contend
Verizon failed to provide appropriate site pictures and thereby minimized the visual impact of its
planned cell tower on property owners. Absent such information, Plaintiffs contend the City
should not have approved the permit.
In other cases, telecommunication providers have come forward with specific
information to refute a cell tower would negatively impact property values in the proposed area.
See e.g., AT&T Mobility Servs., LLC v. Vill. Of Corrales, 642 Fed. Appx. 886, 890 (10th Cir.
2016) (stating AT&T “presented some evidence that the tower would not have an adverse effect
on the property values of adjacent homes”); Bell Atl. Mobile of Rochester L.P. v. Town of
Irondequoit, 848 F. Supp. 2d 391, 401 (W.D.N.Y. 2012) (stating Verizon had disproved a
reduction in property values). Santa Clara’s statute requires similar consideration of the impact
on property before an applicant can receive a conditional use permit. Verizon had the burden to
come forward with such evidence during the permit process. Whether Verizon met that burden,
however, goes to the merits and not to whether Plaintiffs alleged harm is irreparable for purposes
of obtaining a preliminary injunction.
The only evidence the court has before it is the representation that the 2016 appraisal
showed the proposed cell tower will detrimentally impact nearby property values. 6 As stated
above, however, the appraisal pertained to a 100-foot cell tower that was not a stealth design. No
6
The 2016 appraisal has not been provided to the court yet.
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evidence was provided about the impact of a 60-foot stealth cell tower. Moreover, Plaintiffs
have not shown the magnitude of the harm, nor that any such harm cannot be addressed. At
most, Plaintiffs contend the City cannot be sued for monetary damages and once the cell tower
goes up, it cannot be removed easily. Removal still can be required, however, at Verizon’s
expense, if the permit was issued improperly. 7 Accordingly, Plaintiffs have failed to show any
alleged harm is irreparable. Because Plaintiffs have failed to establish a necessary element to
obtain a preliminary injunction, the court denies Plaintiffs’ motion.
CONCLUSION
For the reasons stated above, and on the record, the court DENIES the Motion to Dismiss
(ECF No. 31) filed by Verizon and Windy Peak, LC. The court GRANTS the Motion to Compel
(ECF No. 46) filed by Plaintiffs and directs Santa Clara City to supplement the Appeal Record
with the exhibits identified on the first “Appendix of Record Evidence,” at Appeal Rec., Vol. 1,
at 23 (ECF No. 35). The City also should supplement the record with Plaintiffs’ March 23, 2017
letter if it has not already done so.
The court DENIES Plaintiffs’ Motion for Temporary
Restraining Order & Preliminary Injunction (ECF No. 22).
DATED this 3rd day of October, 2018.
BY THE COURT:
___________________________________
Clark Waddoups
United States District Judge
Should Verizon elect to proceed with the construction of the tower, prior to resolution of this
appeal, it will do so at its own risk of being required to remove the tower should it not prevail.
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