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Sposi v. Santa Clara City

United States District Court, D. Utah, Central Division

October 3, 2018

MARY BETH SPOSI, an individual; and MENLO SMITH, an individual, Plaintiffs,
v.
SANTA CLARA CITY, UTAH, a Utah City, VERIZON WIRELESS, and WINDY PEAK, LC., Defendants.

          MEMORANDUM DECISION AND ORDER

          CLARK WADDOUPS, UNITED STATES DISTRICT JUDGE.

         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' 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 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 ...


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