GTE Mobilnet of California Limited Partnership v. Town of Danville

Background

GTE Mobilnet of California, L.P., doing business as Verizon Wireless, applied to the Town of Danville for a land-use permit to install a small wireless facility at 1 Gatetree Drive. The proposed facility consisted of panel antennas concealed inside a cylinder mounted on an extension of an existing 38.4-foot utility pole, increasing the pole’s height to about 50 feet.

Verizon submitted materials addressing the facility’s location, coverage objective, and radio-frequency emissions. Its engineering report stated that the facility’s maximum exposure at publicly accessible locations would be 0.23% of the Federal Communications Commission’s public limit. Town planning staff and the Planning Commission concluded that the proposal satisfied the Town’s requirements and recommended approval.

Danville Citizens for Responsible Growth appealed the approval. It argued, among other things, that the facility was too close to residences, would affect aesthetics and property values, and should be moved to sites near an East Bay Municipal Utilities District facility. Verizon responded that those sites were too far away to meet the facility’s coverage objective and that it had separately planned another small cell in that area.

After additional hearings, the Town Council voted 4-1 to deny Verizon’s application. The formal denial identified two reasons: Verizon had not shown that the proposed facility or an alternative near a church was the “least intrusive means” of meeting its coverage objective, and Verizon had not adequately demonstrated compliance with federal radio-frequency limits because its engineering report relied on proprietary software.

Legal standard

The court reviewed Verizon’s first claim under the Telecommunications Act of 1996. That law requires a local government’s written denial of a wireless-facility application to be supported by substantial evidence in the written record. “Substantial evidence” means relevant evidence that a reasonable person could accept as adequate to support the decision. The court explained that it had to evaluate the evidence in relation to the Town’s applicable state and local requirements and could not replace the Town’s reasonable factual judgments with its own.

Verizon moved for partial summary judgment under Federal Rule of Civil Procedure 56. Summary judgment is appropriate when there is no genuine dispute about a material fact and the moving party is entitled to judgment as a matter of law. The motion concerned only the first claim, which alleged that the Town’s denial was not supported by substantial evidence. The second claim was not part of the motion.

Analysis

The “least intrusive means” finding

The court held that the Town’s first reason for denial was not supported by substantial evidence. The Town’s ordinance did not require an applicant to consider less intrusive alternatives except when seeking a limited exception from other ordinance requirements. The Town conceded that this exception provision did not apply to Verizon’s application and that the words “least intrusive means” did not expressly appear in the ordinance provisions governing the application.

The court concluded that the Town could not impose a new approval criterion that was not in place when Verizon applied. Although the record contained extensive discussion of aesthetics and residential setbacks, the formal denial did not rely on those matters. The Planning Commission and planning staff had found that the project satisfied the applicable ordinance and design guidelines, and the Town did not provide rebuttal evidence showing that Verizon failed to satisfy an applicable legal requirement.

The court also declined to consider arguments about residential setbacks, aesthetics, landscaping, or Verizon’s ability to install equipment in public rights-of-way as alternative grounds for the denial. Those reasons were not stated in the Town Council’s formal denial, so the court treated them as impermissible after-the-fact explanations.

The radio-frequency finding

The court also held that the Town’s second reason for denial was not supported by substantial evidence. Verizon had submitted the Hammett & Edison report, which used Federal Communications Commission-approved formulas and computer software to calculate expected emissions because the facility had not yet been built. The report concluded that the facility would comply with federal limits.

The Town did not submit evidence contradicting or undermining the report’s methods or conclusions. The court noted that the Town could have questioned the Hammett & Edison engineer, commissioned its own report, or obtained a peer review, but the record showed that it did not do so. Verizon also offered post-construction testing, and the Town’s attorney stated that the Town could revoke the permit if emissions exceeded federal limits.

Because the Town had not presented evidence casting doubt on the engineering report or testimony, the court found that substantial evidence did not support the Town’s conclusion that Verizon had failed to demonstrate compliance with federal radio-frequency requirements.

Judicial notice

Verizon asked the court to take judicial notice of Exhibits B through F, which concerned official acts and technical reports from other local governments. Judicial notice allows a court to accept certain facts or documents without requiring formal proof. The Town argued that the materials were irrelevant, outside the administrative record, and not properly considered under the rules governing review of agency decisions.

The court denied Verizon’s request for judicial notice as to Exhibits B through F because Verizon had not clearly explained the legal basis for relying on that extra-record evidence.

Disposition

Judge Joseph C. Spero granted Verizon’s motion for partial summary judgment on the first claim of the complaint. The court ordered the Town to issue a permit for the facility, subject to all conditions included in the Planning Commission’s original approval on October 23, 2018. The court denied Verizon’s request for judicial notice as to Exhibits B through F.