Opinion
No. CV-22-01009-PHX-MTL
2022-10-05
VERTICAL BRIDGE DEVELOPMENT LLC, et al., Plaintiffs, v. COUNTY OF MARICOPA, et al., Defendants.
Christopher M. Blaesing, Pro Hac Vice, Sasha D. Riedisser, Pro Hac Vice, Bryan Cave Leighton Paisner LLP, St. Louis, MO, Jacob Alexander Maskovich, Bryan Cave Leighton Paisner LLP, Phoenix, AZ, for Plaintiffs. Charles E. Trullinger, Jonathan C. Simon, Michael Evan Gottfried, Maricopa County Attorney Civil Services Division, Phoenix, AZ, Wayne J. Peck, Maricopa County Attorneys Office, Phoenix, AZ, for Defendants.
Christopher M. Blaesing, Pro Hac Vice, Sasha D. Riedisser, Pro Hac Vice, Bryan Cave Leighton Paisner LLP, St. Louis, MO, Jacob Alexander Maskovich, Bryan Cave Leighton Paisner LLP, Phoenix, AZ, for Plaintiffs. Charles E. Trullinger, Jonathan C. Simon, Michael Evan Gottfried, Maricopa County Attorney Civil Services Division, Phoenix, AZ, Wayne J. Peck, Maricopa County Attorneys Office, Phoenix, AZ, for Defendants.
ORDER
Michael T. Liburdi, United States District Judge
I.
Vertical Bridge Development LLC and other plaintiffs here (collectively "Vertical Bridge") petitioned the Maricopa County Board of Supervisors for a special use permit ("SUP") to construct a cell tower in an unincorporated area in the New River region of Maricopa County. (Doc. 1 ¶¶ 1, 3.) A cellular service company, T-Mobile, identified a coverage gap in this area. (Id. ¶¶ 74-75, Exh. 3.) Vertical Bridge studied the matter and concluded "that the [p]roposed [t]ower had to be located in this area in order to remedy this significant gap." (Id. ¶ 76.)
A SUP was required under the County's zoning code because Vertical Bridge's plans for the cell tower did not conform with the existing setback requirement and antennae array limitations. (Id. ¶ 35.) As part of the SUP review process, Vertical Bridge engaged community members and Maricopa County staff in a lengthy, detail-oriented review process and public out-reach campaign. (Id. ¶¶ 40-64.) Planning and Development Department staff recommended approving the SUP application with certain agreed-to conditions. (Id. ¶ 49.) Staff rejected objections from dissenting community members who raised aesthetic and safety concerns. (Id. ¶ 50.)
Later, the community objectors renewed their concerns during the Planning and Zoning Commission review process. (Id. ¶ 54.) Without explanation, the Planning and Zoning Commission recommended denial of the SUP. (Id. ¶ 55.) Vertical Bridge appealed that decision to the Maricopa County Board of Supervisors and redoubled its efforts to satisfy opposing concerns without sacrificing the planned cell tower's functionality. (Id. ¶¶ 56-65.) Plans for the cell tower and surrounding structure were revised. For example, Vertical Bridge proposed to "reduce[ ] the tower height from eighty to sixty-five feet," "reduce[ ] the diameter of the antennae arrays from 13 feet to 9.5 feet," and make other structural changes to mitigate potential noise and light pollution. (Id. ¶ 65.)
The Board of Supervisors considered the SUP application at a public meeting. (Id. ¶ 70.) Staff presented an overview of the SUP application along with details relating to the changes that Vertical Bridge made in response to the community members' opinions. (Id. ¶¶ 71-73.) Vertical Bridge's attorney presented on the technical need for this cell tower, the consideration of alternative sites, the company's community engagement, and the changes made in response to community concerns. (Id. ¶¶ 74-80.)
The five-member Board unanimously rejected the SUP application. (Id. ¶ 87.) Supervisor Bill Gates, who represents the supervisorial district that includes New River, reasoned that those community members who opposed the cell tower "all moved out there for a certain way of life, and that area is actually a prime example of the way of life out there, a more rural way of life . . . ." (Id. ¶ 83.) Supervisor Clint Hickman agreed. (Id. ¶ 86.) Supervisor Jack Sellers stated that he opposed the SUP application "based on the Planning and Zoning Commission recommendation of denial." (Id. ¶ 85.)
After the Board of Supervisors meeting adjourned, the County posted meeting minutes on its website. (Id. ¶ 88.) The minutes reflect that the Board of Supervisors denied the SUP application but do not provide further explanation. (Id. ¶¶ 89-90.) Three weeks later, a County official sent Vertical Bridge a letter stating, "As you are aware, on April 20, 2022 the Maricopa County Board of Supervisors voted 5-0 to deny your special use permit request referenced above. Please feel free to contact me directly with any questions." (Doc. 1-5 at 1.)
II.
Vertical Bridge initiated this action claiming that the Maricopa County Board of Supervisors' decision denying its SUP application violated the Telecommunications Act of 1996 (the "TCA"). See 47 U.S.C. § 332(c)(7)(B)(v). The Board has answered the Complaint and denies liability. (See Doc. 10.) The Board also filed a Motion for Judgment on the Pleadings relating to Counts I and II of the Complaint. (Doc. 18.) Count I alleges that the Board of Supervisors violated the TCA by failing to provide Vertical Bridge with a written basis for the denial of its SUP application. See 47 U.S.C. § 332(c)(7)(B)(iii). And Count II alleges that the Board's decision is "[unsupported] by substantial evidence contained in a written record." See id.; (Doc. 1 ¶¶ 101, 111.) Vertical Bridge opposes the motion.
III.
Under Federal Rule of Civil Procedure 12(c), a party may move for judgment on the pleadings "[a]fter the pleadings are closed but early enough not to delay trial." The purpose of a Rule 12(c) motion is "to dispose of cases where the material facts are not in dispute and a judgment on the merits can be rendered by looking to the substance of the pleadings and any judicially noticed facts." Hebert Abstract Co. v. Touchstone Props., Ltd., 914 F.2d 74, 76 (5th Cir. 1990).
In deciding a motion for judgment on the pleadings, the Court must inquire whether the complaint contains "sufficient factual matter, accepted as true, to state a claim of relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see United States ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011) (finding that Iqbal applies to Rule 12(c) motions because Rule 12(b)(6) and Rule 12(c) motions are functionally equivalent). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. However, the Court is not required "to accept as true a legal conclusion couched as a factual allegation." Id.
Under both Rule 12(c) and Rule 12(b)(6), dismissal of a complaint, or any claim within it, for failure to state a claim may be based on either a " 'lack of a cognizable legal theory' or 'the absence of sufficient facts alleged under a cognizable legal theory.' " Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)).
IV.
A.
To achieve maximum performance, wireless telephone networks require the installation and maintenance of cellular network towers "roughly spaced within a one-to-five-mile radius." Mattaniah S. Jahn, et al., "You Want to Put That Where?" A Discussion of the Interplay Between Local Zoning Control and Effective Prohibition Under the Telecom Act of 1996, 51 Stet. L. Rev. 463, 463-62 (2022). Cellular towers are imposing structures, dominating over neighborhoods, shopping centers, and tree lines. They interfere with the community's aesthetic feel and generate safety concerns. On the other side of the matter, many community residents welcome cellular network towers for the strengthened cell phone reception and data coverage that they provide.
State and local governments—cities, towns, and counties—are tasked with regulating the design, appearance, and safety of structures within their jurisdictional boundaries. Residents and other community members generally consider local government officials as the primary decision-making authority on the placement and design of cellular towers. But Congressional policy favoring the expansion of wireless telecommunication services has, to some degree, rolled back the discretion that local officials may exercise. Congress enacted the TCA "to encourage the development of telecommunications technologies, including wireless telephone services." Omnipoint Comms., Inc. v. City of Huntington Beach, 738 F.3d 192, 194 (9th Cir. 2013). And while the TCA preempts state and local governments in some policymaking areas, it expressly preserves local zoning authority, with some caveats. The TCA provides, "[e]xcept as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities." 47 U.S.C. § 332(c)(7)(A). Some of those exceptions include the following, which form the basis of Vertical Bridge's Complaint.
First, a state or local government may not impose regulations on cellular towers in a manner that "unreasonably discriminate[s] among providers of functionally equivalent services" and that "[has] the effect of prohibiting the provision of personal wireless services." Id. § 332(c)(7)(B)(i). Count III of the Complaint alleges that the denial of the SUP application constitutes discrimination among wireless service providers. The Complaint alleges that the County previously approved 75-foot tower 2,400 feet away from the proposed site that does not incorporate some of the esthetic qualities demanded here. (Doc. 1 ¶¶ 124-30.) Count IV alleges that the County's decision constitutes an effective prohibition of cellular service in the area identified as a coverage gap. (Id. ¶¶ 132-37.) According to Vertical Bridge, the proposed cellular tower remedies that gap.
Second, when a state or local government denies an application to place or construct a cellular tower, the "decision . . . shall be in writing and supported by substantial evidence in a written record." Id. § 332(c)(7)(B)(iii). Count I of the Complaint alleges that the Maricopa County Board of Supervisors failed to provide a satisfactory written basis for its denial of the SUP application. According to Vertical Bridge, the May 12, 2022, letter stating only that the application was denied does not satisfy the TCA's requirement that the writing state the reasons for denial. (Doc. 1 ¶¶ 101-08.) Indeed, it alleges that no basis for denial has been provided at all. (Id. ¶ 108.) Vertical Bridge further alleges in Count II that the County's denial lacks any support in the evidentiary record. To the extent that the Board based its decision on certain objectors' aesthetic concerns or the "rural nature of the area," those reasons do not constitute substantial evidence. (Id. ¶¶ 111-22.) The County challenges these two claims in the instant Motion.
B.
Local government boards and councils, such as the Maricopa County Board of Supervisors, "act in several capacities: legislative, executive, administrative, and quasi-judicial." Wennerstrom v. City of Mesa, 169 Ariz. 485, 488, 821 P.2d 146 (1991). In its Motion for Judgment on the Pleadings, Maricopa County advances the theory that state and local decisions that are legislative in nature are not restricted by the requirements of § 332(c)(7)(B)(iii). That is, the County argues, a legislative action denying a wireless services application does not need to state the basis of the denial "in writing and supported by substantial evidence in a written record." See 47 U.S.C. § 332(c)(7)(B)(iii). The County further asserts that the Board of Supervisors' decision to deny the SUP was a legislative decision because "[t]he procedure to process an application for a SUP is identical to that for any rezoning, with the planning and zoning commission making a recommendation to the board of supervisors after required public input." (Doc. 18 at 7 (footnote omitted).) The Court need not evaluate the County's claim that its SUP process is legislative in nature because the Motion will be resolved on other grounds.
The County bases the legislative exception theory from the Ninth Circuit's decision in Omnipoint Communications v. City of Huntington Beach, 738 F.3d 192 (9th Cir. 2013). The issue in that case related to a voter referendum requirement in the City of Huntington Beach municipal charter:
No . . . structure costing more than $100,000 may be built on or in any [city] park or beach or portion thereof . . .
unless authorized by the affirmative votes of at least a majority of the total membership of the City Council and by the affirmative vote of at least a majority of the electors voting on such proposition at a general or special election at which such proposition is submitted.Id. at 196. The opinion refers to this provision as "Measure C."
A wireless communications carrier submitted applications to construct antennae facilities in two city-owned parks. Id. at 197-98. The city council approved both applications and construction soon began. Id. at 198. The carrier then learned that it underestimated construction costs. Id. Expenditures to build both facilities would exceed $100,000, each. Id. The city determined that, under Measure C, voter approval was necessary and ordered construction suspended. Id.
Rather than submit the projects to voter approval, the wireless carrier filed a lawsuit claiming that the TCA preempted Measure C. Id. The court disagreed. Id. at 200. It observed that the TCA's preemptive scope is limited: "the TCA preempts a local land use authority's legislative regulations if they fail to incorporate the requirements of § 332(c)(7)(B)(i)[] and (iv)[] and preempts its adjudicative decisions if the procedures for making such decisions do not meet the minimum requirements of § 332(c)(7)(B)(ii)[] and (iii)[] . . . ." Id. at 199. Indeed, the court found that city authorities fully complied with the TCA. Id. ("[B]oth the City's Planning and Building Department and its Building and Safety Department approved T-Mobile's applications in writing within a reasonable period of time."). Even if the city fully complied with the TCA's dictates, which it had, the court reasoned that the wireless carrier must still obtain the property owner's full, lawful approval to begin construction, and the means of obtaining that approval required a public vote. Id. ("[O]nce it became clear that T-Mobile's proposed project triggered Measure C, T-Mobile lacked the necessary land owner permission until Measure C's requirements were discharged.").
Prohibiting unreasonable discrimination among providers and the effective prohibition of personal wireless services. This prohibition forms the basis of Count III here and it is not challenged in the instant Motion.
Prohibiting regulation based on environmental effects. This provision is not at issue in this case.
Requiring that the local government instrumentality act on a request "within a reasonable period of time." Although this provision is referred to in the Complaint, it does not appear to be at issue in this case.
Requiring that the state or local government provide a written denial in writing supported by substantial evidence in the record. This is the basis of Counts I and II and the subject of Maricopa County's Motion.
In this case, Maricopa County relies too heavily on the Ninth Circuit's description of § 332(c)(7)(B)'s subparts as either legislative or adjudicative functions of the local governing body. The "legislative" and "adjudicative" designations may be useful for understanding how Congress's two policies of promoting the expansion of wireless telephone networks and maintaining some degree of local control interact with one another. It might also derive from the TCA's statutory text describing some government functions as regulatory and others as decisions. Those designations go no further. The Ninth Circuit did not, as suggested, categorically exclude some policies intended to facilitate the growth of the wireless telecommunications industry simply because certain local government outcomes result from a legislative-like process. Instead, the Omnipoint Communications decision concluded that Measure C is a local requirement for obtaining the landowner's consent for building on city-owned land. The court held that the TCA does not preempt this local land-use law. Omnipoint Comms., Inc., 738 F.3d at 200-01.
Not only does Maricopa County misread and misapply Omnipoint Communications, but it also ignores the statute's plain language. The statute does not make any meaningful distinction between legislative and adjudicative functions performed by a local governing body. As Vertical Bridge persuasively explains (Doc. 22 at 6), the requirement in § 332(c)(7)(B)(iii) is unequivocal. "Any decision" made by the local government instrumentality "to deny a request to place, construct or modify personal wireless service facilities shall be in writing and supported by substantial evidence in the record." 47 U.S.C. § 332(c)(7)(B)(iii); see also T-Mobile South, LLC v. City of Roswell, 574 U.S. 293, 302, 135 S.Ct. 808, 190 L.Ed.2d 679 (2015) ("[T]he statutory text and structure, and the concepts that Congress imported into the statutory framework, all point clearly toward the conclusion that localities must provide reasons when they deny cell phone tower siting applications."). If the governing body denies a request, it must provide the applicant with a written decision. That decision must be supported by substantial evidence. And that evidence must be part of the record. Maricopa County's argument would graft categorial exclusions onto the statutory text unintended by Congress.
C.
Considering the foregoing, and the standard that this Court must apply to a Rule 12(c) motion, the Court concludes that Counts I and II of the Complaint allege "sufficient factual matter, accepted as true, to state a claim of relief that is plausible on its face." See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. It is uncontested that the Maricopa County Board of Supervisors considered the SUP application filed by Vertical Bridge. In so doing, the Board considered the proposed New River cell tower site, along with specific technical facts, design specifications, and community member opinions. It is also uncontested that the Board denied the application. Whether characterized as a legislative or adjudicative action, there is very little doubt that it was a "decision" within the meaning of the TCA.
V.
Accordingly,
IT IS ORDERED that the Motion for Judgment on the Pleadings: Counts I and II (Doc. 18) is denied.