United States District Court, D. Utah, Central Division
MARY BETH SPOSI, an individual; and MENLO SMITH, an individual, Plaintiffs,
SANTA CLARA CITY, UTAH, a Utah City, VERIZON WIRELESS, and WINDY PEAK, LC., Defendants.
MEMORANDUM DECISION AND ORDER
WADDOUPS, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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
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
3. Verizon failed to show “the proposed tower is
necessary to remedy a significant gap in coverage.”
Decision, Appeal Rec., Vol. I, at 14-18.
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.
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 ...