GTE Mobilnet of California Limited Partnership v. Carmel by-the-Sea, City of

Background

GTE Mobilnet of California Limited Partnership, doing business as Verizon Wireless, applied to the City of Carmel-by-the-Sea for a small wireless facility on Carmelo Street. After the City denied the application, Verizon appealed. The parties agreed to extend the deadline for the City to take final action until December 17, 2021.

On December 7, 2021, the City Council denied Verizon’s appeal and approved a draft denial resolution. Before the hearing, the City had posted the agenda and draft resolution on its public website. The City posted a video of the hearing the next day. The mayor signed the final resolution on December 14, 2021. The City did not send that resolution directly to Verizon, but stored it on an internal server and made it available through the City’s public-records process. Verizon did not use that process or follow up on its email request for the resolution.

Verizon sued the City, alleging that the City violated the Telecommunications Act of 1996 and breached a settlement agreement by failing to provide timely written notice of the denial. The City initially moved to dismiss for failure to state a claim. After the City and intervenors asked the court to consider documents outside the complaint, the court converted that motion into a motion for summary judgment. Summary judgment is a decision without a trial when the evidence shows that no genuine dispute over an important fact requires a trial.

La Playa Carmel Hotel, LLC and STOP Cell Towers in Carmel Neighborhoods intervened and joined the City’s motion.

Court’s analysis

The Telecommunications Act requires a municipality to act on a wireless-facility application within a reasonable time. If the municipality denies the application, the denial must be in writing and supported by substantial evidence in a written record. The Act does not expressly state that the municipality must deliver the written denial directly to the applicant.

The court relied on the Supreme Court’s explanation that a denial must be provided or made accessible to the applicant, but that the Act does not specify how the municipality must convey the decision. The court found that the City’s public posting of the draft denial resolution together with the hearing video satisfied the Act. It also found that the final resolution was properly issued before the agreed deadline and was accessible through a public-records request.

The court rejected Verizon’s argument that the City had secretly issued and concealed the final resolution. Verizon had requested a copy by email, but that request did not follow the City’s posted public-records instructions, and Verizon did not follow up. The court also found that Verizon had timely notice of the decision and appealed within 30 days. Because Verizon had timely notice, the court concluded there was no genuine dispute requiring trial.

The court granted the City’s request for judicial notice of Resolution No. 2021-084. It declined to take judicial notice of several other documents as irrelevant to the timely-action issue, but considered those documents and the declaration of Ashlee Wright as evidence in deciding summary judgment.

Disposition

The court granted summary judgment in favor of Carmel-by-the-Sea and the intervenor-defendants, La Playa Carmel Hotel, LLC and STOP Cell Towers in Carmel Neighborhoods. Because both claims in Verizon’s complaint depended on a finding that Verizon lacked timely notice of the City’s final action, the court concluded that no claims remained and dismissed Verizon’s complaint with prejudice. The court did not address the intervenors’ additional arguments that the complaint was time-barred or unripe.