New Cingular Wireless PCS, LLC v. City of Los Altos

Background

GTE Mobilnet of California Limited Partnership, identified in the opinion as Verizon, challenged the City of Los Altos’s denial of an application for a small-cell wireless facility at an existing utility pole near Los Altos High School. New Cingular Wireless PCS, LLC, identified as AT&T, challenged the denial of twelve applications for small-cell facilities on existing utility poles.

The applications were reviewed under Los Altos’s 2019 Wireless Ordinance. That ordinance prohibited wireless facilities in residential areas and imposed restrictions involving schools, residential units, parks, and other wireless facilities. Verizon’s application was denied because the proposed site was within 500 feet of Los Altos High School. AT&T’s applications were denied because the proposed sites were in prohibited residential zones and/or within 500 feet of schools.

Both plaintiffs alleged that the denials and the 2019 Ordinance violated the federal Telecommunications Act. Verizon also asserted claims under California law. The plaintiffs sought to challenge the ordinance and the denials, including on the grounds that the ordinance was not supported by substantial evidence, was preempted by federal law, effectively prohibited wireless service, and was adopted because of concerns about radio-frequency emissions.

Change in the Ordinance

On June 30, 2022, the City Council repealed the 2019 Ordinance and adopted the 2022 Ordinance, which took effect on July 30, 2022. The 2022 Ordinance entirely replaced the earlier ordinance’s location rules. Unlike the 2019 Ordinance, it did not prohibit wireless facilities in residential areas, eliminated the prohibitions involving parks and schools, and removed the 500-foot buffer from residential units. It instead created preferred and less-preferred locations, with facilities categorically permitted in significant portions of the city and potentially allowed in less-preferred locations when a nearby preferred location was not technically feasible.

The court granted the City’s request for judicial notice of the new ordinance because the materials were proper subjects for judicial notice under Federal Rule of Evidence 201.

Mootness Analysis

“Mootness” means that a live dispute no longer exists for the court to resolve. The court explained that, under Ninth Circuit precedent, a government body’s repeal, amendment, or expiration of challenged legislation is generally presumed to make a case moot. A plaintiff may overcome that presumption by showing a reasonable expectation that the government will reenact the challenged provision or a substantially similar one. That showing must be based on evidence in the record, not speculation alone.

The court applied that presumption because Los Altos repealed the 2019 Ordinance and replaced it with the 2022 Ordinance without reenacting the challenged provisions. The court found no evidence creating a reasonable expectation that the City Council would enact the same or substantially similar restrictions. It also concluded that the 2022 Ordinance was not a reconstituted version of the 2019 Ordinance because it used different requirements and replaced the challenged provisions with alternative rules.

The court rejected the plaintiffs’ argument that their claims remained live because the City had violated federal law when it denied their applications in 2019. The court explained that the plaintiffs’ facial and as-applied challenges were tied to the repealed 2019 Ordinance. Because that ordinance had been replaced, the challenges to it were moot.

Disposition

The court DISMISSED AS MOOT both actions, TERMINATED the plaintiffs’ respective motions for summary judgment, and directed the clerk to close the files. The court did not decide whether the 2019 Ordinance or the application denials violated the Telecommunications Act or California law. Judge Edward J. Davila signed the order.