VERIZON WIRELESS, Plaintiff, vs. CITY OF ALBANY, Defendant

8/3/2019 VERIZON WIRELESS, Plaintiff, vs. CITY OF ALBANY, Defendant

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Complaint for Declaratory Judgment and Injunction; Request for Expedited Review

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MACKENZIE&ALBRITTONLL

P

220SANSOMESTREET,14THFLOOR

SANFRANCISCO,CA94104

(415)288-4000

JAMES A. HEARD (SBN 114940)

[email protected] & ALBRITTON LLP

220 Sansome Street, 14th Floor

San Francisco, California 94104

Telephone: (415) 288-4000Facsimile: (415) 288 4010

Attorneys for Real Party GTE MOBILNET OFCALIFORNIA LIMITED PARTNERSHIP,a California limited partnership d/b/a VERIZON WIRELESS

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

GTE MOBILNET OF CALIFORNIALIMITED PARTNERSHIP, a Californialimited partnership d/b/a VERIZONWIRELESS,

Plaintiff,

vs.

CITY OF ALBANY,

Defendant.

CASE NO.

COMPLAINT FOR DECLARATORY

JUDGMENT AND INJUNCTION;

REQUEST FOR EXPEDITED REVIEW

UNDER 47 U.S.C. 332(c)(7)(B)(v)

Plaintiff GTE Mobilnet of California Limited Partnership, a California limited partnership

doing business as Verizon Wireless (Verizon Wireless), complains against defendant the City of

Albany (the City), and alleges as follows:

I. INTRODUCTION

1. This is both a facial and as applied challenge to one of the most burdensome andprohibitive local enactments in the area of wireless telecommunication facilities in the Nation. It

is exactly the kind of local enactment, one that blocks a seamless network and the full benefit of

technological advances, that Congress meant to prohibit in the robust protections for the

Case4:11-cv-06155-LB Document1 Filed12/07/11 Page1 of 35

CV 11-06155 LB


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MACKENZIE&ALBRITTONLLP

423W

ASHINGTONSTREET,SIXTHFLOOR


(415)288-4000

placement of wireless facilities which were added to the Communications Act in 1996. See 47

U.S.C. 332(c)(3)-(7).

2. The City has violated the United States Constitution and the federalCommunications Act (the Act) by enacting and enforcing its Wireless Communication Facilities

Ordinance, codified as Section 20.20.100, Albany Municipal Code (AMC), with related

definitions at Section 20.08.020, AMC (collectively, the Ordinance). The Ordinance is so

restrictive that it effectively bars new wireless facilities in the City, and has even prevented

Verizon Wireless from making needed technological upgrades to an existing wireless facility,

despite the lack of any visual or other impacts.

3. Among its many burdensome requirements, the Ordinance prohibits wirelessfacilities in any residential zone (which includes most of the Citys land area), subject only to a

narrow exception where the applicant can demonstrate that there is no feasible alternative. In the

few remaining areas which are theoretically open to new facilities, the Ordinance imposes a series

of barriers that, taken as a whole, effectively prohibit the provision of wireless

telecommunications services. These include, but are not limited to, requirements for: the

maximum achievable setback from any permitted child care facility, school, or residential zone;

costly and burdensome discretionary review ofevery application to build or modify any wireless

facility even where any aesthetic impact would be minor or non-existent with unfettered

discretion in the decision-maker; and proof that the applicant needs to build or modify its facility

in order to provide service within the Albany city limits.

4. Taken together, as they must be for purposes of federal preemption, these barrierseffectively prohibit construction of new wireless facilities in Albany. In essence, Albany has

enacted a ban on the construction or upgrade of any wireless facilities in the City, under the guise

of a wireless siting ordinance. Verizon Wireless is informed and believes that in the six years

since it enacted the Ordinance, the City has not approved a single new wireless facility.

5. The burdens under the Ordinance are further illustrated by the Citys prolongeddelay and ultimate denial of a simple request by Verizon Wireless to replace four antenna panels



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(415)288-4000

on an existing wireless telecommunications facility at 423 San Pablo Avenue (the Existing

Facility) with four new antenna panels. The four new antenna panels are virtually

indistinguishable in size and appearance from the four they would replace. Verizon Wireless

needs to upgrade its antennas in order to use the 700 Mhz spectrum that it is licensed and

authorized by the Federal Communications Commission to use, and to provide enhanced, fourth-

generation wireless broadband service known as Long-Term Evolution or 4G LTE. Verizon

Wireless customers elsewhere in the Bay Area and Nation already enjoy 4G LTE service.

6. While this upgrade is significant to Verizon Wireless and its customers, it is utterlyinsignificantfrom any legitimate land use perspective. Replacing the antenna panels would not

cause or increase any visual, noise, or other impacts properly regulated under the Albany zoning

code.

7. Despite the absence of any such impacts, the City subjected Verizon Wireless tomore than two years of exhaustive review before ultimately denying its application.

8. The reason for the denial was the Citys explicitly stated desire toprevent VerizonWireless from upgrading the facility to provide new services, which the City claimed would

extend the life of a non-conforming structure. Yet the Existing Facility was lawfully

constructed, and was subsequently rendered non-conforming only because the City chose to set

the height limit under the Ordinance at 17 feet below the Existing Facility. In any event, the City

lacks any authority to regulate the technology or radio spectrum used or services provided by

Verizon Wireless, all of which are exclusively regulated by the federal government.

9. The stated reasons for denial also included an alleged increase in visual impact, butthis was simply a pretext with no factual basis. In fact, both the Citys planning staff and the

consultant hired to review the application had previously admitted that there would be no

significant visual impact, and the City did not even raise this issue until five days before the final

City Council hearing.

10. The Ordinance requires a discretionary conditional use permit for any upgrade intechnology, equipment, or services at an existing facility no matter how minor or unnoticeable



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the visual or other impacts. Yet in the case of a legal non-conforming facility, it is virtually

impossible to obtain the required permit, as the City seeks to lock such facilities in place, with

only routine maintenance permitted. (AMC 20.20.I.3.) The City interprets routine

maintenance in its most restrictive possible sense, as limited to repair or replacement of existing

equipment with identical equipment, even prohibiting any change in the manufacturer, model

numbers, or frequencies of antennas. In todays competitive market, characterized by swift

changes in technology, no rational carrier would replace its existing facilities with exactly the

same equipment.

11. As interpreted by the City, the Ordinance prohibits any upgrade in capacity,technology, or service to a legal, non-conforming facility without regard for visual or other

impacts unless the applicant can demonstrate, among other things, that no other alternative

solutions which would meet the Development Standards are feasible. (AMC

20.20.100.F.5.a(3).) The City thus confronts the wireless carrier with a Catch-22. The City

interprets alternative solutions to include building another, completely new facility in a different

location. At the same time, the Ordinance makes it a practical impossibility to construct any new

facilities in the City.

12. The Citys onerous and intrusive regulatory scheme violates federal law, both on itsface and as applied to Verizon Wireless in this case. It is well-established that local governments

may not interfere with the federal government's regulation of technical and operational aspects of

wireless telecommunications technology, a field that is occupied by federal law. New York SMSA

Ltd. v. Town of Clarkstown, 612 F.3d 97, 105 (2d Cir. 2010). Yet, by requiring a discretionary

permit to perform technological upgrades that would have no impact on legitimate land-use

concerns, and by denying such a permit to Verizon Wireless specifically because the City wished

to prevent Verizon Wireless from offering new services from the Existing Facility, that is exactly

what the City has done. In addition, as interpreted and enforced by the City, the Ordinance is

preempted because it has the effect of prohibiting service in violation of the federal

Communications Act, 47 U.S.C. 253.



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(415)288-4000

13. Finally, the permit denial on November 7, 2011 (copy attached as Exhibit A)violated Section 332 of the Act in several respects: (a) it was not based on substantial evidence in

violation of 332(c)(7)(B)(iii), because the antenna upgrade will have no visual impact, and

because the primary grounds for denial are preempted by state law regarding vested rights in legal

non-conforming uses and by the exclusive federal authority to regulate the technical and

operational aspects of wireless services; (b) it had the effect of prohibiting Verizon Wireless from

providing service in violation of 332(c)(7)(B)(i)(II), because replacing the existing antennas is the

least intrusive means of filling a significant gap in service; and (c) it discriminated unreasonably

against Verizon Wireless in violation of 332(c)(7)(B)(i)(I), because the City had previously

allowed a competitor of Verizon Wireless to install an entirely new and more visible facility

on the same pole.

14. As redress, Verizon Wireless seeks declaratory and injunctive relief barring theCity from enforcing its Ordinance and directing it to approve the proposed modification of the

Existing Facility and issue the permit to Verizon Wireless that was denied on November 7, 2011.

Verizon Wireless also seeks any other legal and equitable relief to which it is entitled, including

but not limited to costs of this action as authorized by law. Verizon Wireless also respectfully

requests expedited judicial review of these claims as required by Section 332(c)(7)(B)(v) of the

Act, including an expedited schedule for briefing and argument of motions for summary judgment

II. JURISDICTION AND VENUE

15. This case arises under the Constitution and laws of the United States, including theSupremacy Clause, U.S. Const. Article VI, Clause 2; and the federal Communications Act,

47 U.S.C. 151, et seq.

16. The Court has subject-matter jurisdiction over this action under 28 U.S.C. 1331and 1337. The Court has authority to grant declaratory relief under 28 U.S.C. 2201 and 2202.

17. Venue is proper in this Court under 28 U.S.C. 1391(b), because the City islocated in this District and the acts or omissions giving rise to this action occurred in this District.

18. A statutory cause of action to challenge the denial of a permit for a wireless facility



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(415)288-4000

is expressly provided by 47 U.S.C. 332(c)(7)(B)(v). This Complaint has been filed within the

thirty (30) day statute of limitations set forth in that provision.

III. THE PARTIES

19. Plaintiff GTE Mobilnet of California Limited Partnership, doing business asVerizon Wireless, is the local affiliate of a nation-wide provider of wireless telecommunications

services.

20. Verizon Wireless is, and at all times mentioned herein was, qualified to do businessin California.

21. Verizon Wireless is a communications common carrier and atelecommunications carrier that provides personal wireless services, and interstate and

intrastate telecommunications services as those terms are defined and used in the Act and the

rules, regulations and orders promulgated by the Federal Communications Commission (the

FCC) pursuant to this statutory scheme.

22. Verizon Wireless is licensed by the FCC to provide interstate and intrastatetelecommunications services and personal wireless services via radio communication nationwide,

including within the City of Albany. Verizon Wireless provides such services via spectrum that it

is licensed to use by the FCC, including but not limited to spectrum in the 700 MHz band.

23. Defendant City of Albany is a municipal corporation duly constituted under theConstitution and laws of the State of California. It has the authority under California law to sue

and be sued.

IV. BACKGROUND

A. Cellular Technology24. Mobile telephones work by transmitting a radio signal to antennas mounted on a

pole, building, or other structure. The antenna feeds the signal to electronic equipment housed in

small equipment shelter or cabinet, also referred to as a base station. The base station is connected

by fiber optic cable, ordinary telephone wire, or microwave to a local telephone network and then

to a switch, through which calls can be routed to other communications networks. The



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(415)288-4000

combination of a base station and its associated antennas is commonly referred to as a cell site.

25. To provide continuous service to a wireless telephone user, coverage from thecarriers cell sites must overlap in a grid pattern resembling a honeycomb. Each section of the

grid or honeycomb corresponds to the coverage area of a single cell site. In the event that a carrier

is unable to construct a sufficient number of cell sites within a specific geographic area, it will not

be able to provide uninterrupted service to the consumers within that area. If a given area has an

insufficient number of cell sites, customers in that area will suffer an unacceptable level of

dropped calls, poor signal quality, and network access problems.

26. Even where there are no existing gaps in coverage, wireless carriers must build,modify, and upgrade their networks to meet demand and to keep pace with changing technology.

In particular, wireless carriers must install new cell sites and upgrade existing ones to provide

service to a growing number of customers and to enable the provision of the next generation of

wireless services. The specific upgrades at issue in the Citys permit denial in this case were

designed in part to increase network capacity for wireless data services. They were also designed

to allow Verizon Wireless to employ the 700 Mhz spectrum it purchased at auction from the FCC

to good advantage in the Bay Area. Moreover, because wireless antennas are optimized and tuned

to transmit and receive on particular frequencies, a carrier that acquires a new spectrum license

from the FCC may need to replace or supplement its existing antennas in order to make use of the

new radio spectrum. The FCC also has build out requirements, under which carriers that

purchase spectrum from the FCC are required to build network facilities to serve a certain

percentage of the population of that area within a certain number of years. Such build out

requirements apply to the 700 Mhz spectrum purchased by Verizon Wireless in the area that

includes the City of Albany, California.

B. The Existing Facility27. The Existing Facility currently consists of a 65-foot wooden monopole located at

the rear of a bank building on commercially zoned property at 423 San Pablo Avenue. Verizon

Wirelesss four 48-inch panel antenna panels are mounted with their centerline at approximately



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59 feet above ground level. MetroPCS owns a second array of six antenna panels that are installed

on the same pole, with their centerline at approximately 45 feet.

28. Verizon Wireless has operated a cell site at the Existing Facility since 1990, whenit installed the monopole and its original antennas pursuant to a building permit duly issued by the

City. At that time, the California Public Utilities Commission preempted local governments from

requiring discretionary zoning review for cell sites, but it has since delegated primary permitting

authority over cell sites to local governments.

29. VZW later transferred the monopole to Crown Castle GT Company LLC(Crown) and continued to operate the facility as Crowns tenant.

30. In 2001, the Citys Planning Director granted an administrative use permitauthorizing MetroPCS to collocate on the Existing Facility and install an array of antennas on the

pole at a height of approximately 45 feet, based on the finding that no significant change will

occur in the use or appearance of the site. (Staff Report for MetroPCS facility dated August 28,

2001, p. 2.) MetroPCS currently has six antenna panels installed on the pole.

V. REGULATORY FRAMEWORK

A. Federal Control of Radio Communications31. For nearly 100 years, beginning with the Radio Acts of 1912 and 1927, wireless

services have been subject to continuous, pervasive, and uniform federal regulation. As the

Supreme Court recognized long ago, [n]o state lines divide the radio waves, and national

regulation is not only appropriate but essential to the efficient use of radio facilities. FRC v.

Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 279 (1933). Thus, the comprehensive federal

regulation of nearly all aspects of wireless service has long been to the exclusion of state and local

regulation.

32. Since 1934, this control has been vested with the FCC. See Communications Actof 1934. See 47 U.S.C. 151 et seq. Under the Communications Act, Congress created the FCC

and placed it at the helm of a unified and comprehensive regulatory system for the industry.

NBC v. United States, 319 U.S. 190, 214 (1943) (internal quotation marks omitted). Congress



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designated the FCC as the centraliz[ed] authority responsible for execut[ing] and enforc[ing]

Congresss goals of making available to all people of the United States . . . a rapid, efficient,

Nation-wide, and world-wide . . . radio communication service and promoting safety of life and

property through the use of . . . radio communication. 47 U.S.C. 151.

33. Personal wireless services, including what is colloquially known as cell phoneservice, are offered on a variety of different radio frequency bands pursuant to rules and

regulations promulgated by the FCC. Both Congress and the FCC have extended their long-

standing and uniform control over wireless service to these modern technologies. In its first order

relating to commercial cellular service, the Commission expressly assert[ed] Federal primacy in

this area, because it was concerned that state or local regulation of this technology would . . .

direct[ly] conflict with [the Commissions] attempt . . . to establish a nation-wide system of radio

communications. Future Use of Frequency Band 806-960 MHz, 46 F.C.C.2d 752, 766-67 ( 43

44) (1974).

34. The federal government, either through legislation or through rule-making andspectrum-licensing authority delegated to the FCC, controls and determines which radio frequency

bands shall be used for the provision of personal wireless services. See, e.g., 47 U.S.C 303.

From time to time, the FCC makes new frequency bands available for personal wireless services.

Under the terms of the Communications Act, 47 U.S.C. 309(j), licenses to use these new

frequencies are sold in spectrum auctions.

35. The federal government thus possesses exclusive authority to authorize andregulate the use of the radio spectrum, including specifically the technical issues related to radio

telecommunications. See, e.g., New York SMSA Ltd. Partnership v. Town of Clarkstown, 612 F.3d

97 (2d Cir. 2010). No state or local government may intrude into this federally occupied field by

attempting to regulate or block the use of particular technologies to provide wireless services. Id.

B. Federal Preemption of Local Regulation of Wireless Entry36. In 1993,Congress reinforced federal primacy over state and local wireless

regulation by adding Section 332 to the Communications Act. See Omnibus Budget



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Reconciliation Act of 1993, Pub. L. No. 193-66, Title VI, 6002(b), 107 Stat. 312 (1993)

(OBRA). Section 332(c)(3) established specific rules and classifications for personal wireless

services and divested state and local governments of the ability to act as regulatory gatekeepers for

entities wishing to provide these services.

37. Section 332(c)(3), titled State preemption, provides that no State or localgovernment shall have any authority to regulate [1] the entry of or [2] rates charged by any

commercial mobile service. 47 U.S.C. 332(c)(3)(A) (emphasis added). Congress passed this

amendment to further consolidate wireless regulation at the federal level and thus foster the

growth and development of mobile services that, by their nature, operate without regard to state

lines as an integral part of the national telecommunications infrastructure. H.R. Rep. No. 103-

111, at 260 (1993). In the FCCs words, Congresss purpose in amending the Act in 1993 was to

ensure a national regulatory policy for [wireless service], not a policy that is balkanized state-by-

state. Petition on Behalf of the State of Conn., 10 F.C.C.R. 7025, 7034, ( 14) (1995) (emphasis

added); see also Conn. Dept of Pub. Util. Control v. FCC, 78 F.3d 842, 845 (2d Cir. 1996)

(explaining that the 1993 amendments were enacted to dramatically revise the regulation of the

wireless telecommunications industry, of which cellular telephone service is a part).

C. Federal Preemption of Local Roadblocks to Competition38. With the passage of the Telecommunications Act of 1996 (the TCA), Congress

created a new telecommunications regime designed to foster competition in local telephone

markets. Verizon Maryland, Inc. v. Pub. Service Commn of Md., 535 U.S. 635, 638 (2002). The

express purpose of the TCA is to promote competition and reduce regulation in order to secure

lower prices and higher quality services for American telecommunications consumers and

encourage the rapid deployment of new telecommunications technologies. 110 Stat. 56 (1996).

39. To ensure that its pro-competitive national policy would not be frustrated, Congressenacted several provisions of the Act that further protect carriers from unjustified local and state

barriers to entry.



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1. Section 253: Prohibition On Barriers To Entry40. Section 253 of the Act preempts any State or local law or legal requirement that

may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or

intrastate telecommunications service. 47 U.S.C. 253(a). Commercial mobile wireless

services, like those provided by Verizon Wireless, are telecommunications services.

41. Section 253(a) preempts state and local regulations that not only prohibit outrightthe ability of any entity to provide telecommunications services, but also those that have the effect

of prohibiting the provision of such services. Thus, a carrier need not show a complete or express

ban in order to make out a claim of effective prohibition under Section 253.

2. Section 332(c)(7): Restrictions On Individual Siting Decisions42. The TCA also added 332(c)(7) to the Act, which confers additional protections

on wireless carriers beyond those accorded to all telecommunications carriers in 253(a). Section

332(c)(7) specifically addresses local decisions on particular applications for permits to install

wireless communications facilities.

43. Congress enacted 332(c)(7) because it recognized that state and localgovernments could frustrate the rapid deployment of a wireless network not only by promulgating

burdensome statutes and ordinances, but also by applying zoning requirements in such a way as to

deny wireless providers the ability to construct essential wireless communications infrastructure.

While Congress generally preserved local zoning authority over traditional land-use matters, such

as visual impacts, in Section 332(c)(7) it imposed several substantive and procedural limitations

on local decisions in order to ensure that those decisions do not frustrate the Acts pro-competitive

goals. Three of these limitations are of particular relevance here.

44. Section 332(c)(7)(B)(iii) provides that any denial of an application to install ormodify a wireless facility shall be in writing and supported by substantial evidence contained in a

written record.

45. Section 332(c)(7)(B)(i)(II) provides that local government regulation shall notprohibit or have the effect of prohibiting the provision of personal wireless services.



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46. 332(c)(7)(B)(i)(I) provides that local government regulation shall notunreasonably discriminate among providers of functionally equivalent services.

47. In a decision interpreting aspects of Section 332(c)(7), the FCC recently explainedthat personal wireless service providers have often faced lengthy and unreasonable delays in the

consideration of their facility siting applications, and that the persistence of such delays is

impeding the deployment of advanced and emergency services. Petition for Declaratory Ruling

to Clarify Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review and to Preempt

Under Section 253 State and Local Ordinances That Classify All Wireless Siting Proposals as

Requiring a Variance (Shot Clock Ruling), 24 FCC Rcd. 13994 (2009) ( 32).

VI. THE CITYS UNLAWFUL ORDINANCE

48. Albany enacted the Ordinance in 2005 in response to public opposition to theinstallation of new wireless facilities and their perceived adverse health effects. In its zeal to seal

off the City to new wireless facilities and services, Albany has gone far beyond its legitimate

zoning authority and has violated federal law. The City deliberately intrudes into the most basic

operational and technical aspects of wireless network development and deployment. It employs

outright prohibitions, improper standards and burdens of proof, and Byzantine processes to

discourage deployment and upgrading of wireless facilities in the City needed for service to the

public. This City has also overstepped its role by regulating far beyond traditional aesthetic or

land use concerns. The City claims the authority to dictate the type of technology and the kind of

services that may be provided within its borders. It is doing exactly what the district court and the

Second Circuit found was unlawful in the Clarkstown case. Town of Clarkstown, 612 F.3d at 105.

49. The Ordinance violates federal law in a variety of interrelated ways. The starkestexample is a simple, broad prohibition on wireless facilities in any residential zone. The only

exception is when an applicant provides technical evidence satisfactory to the City showing a

clear need for this facility and the infeasibility of locating it elsewhere. Thus, the carrier is

charged with proving an almost impossible negative. This standard is far more restrictive than the

showing required to demonstrate an unlawful prohibition of service under 47 U.S.C.



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332(c)(7)(B)(i)(II), which requires only that the proposed facility is the least intrusive alternative,

not the only alternative. As the great majority of the Citys land area is residentially zoned, the

Ordinance effectively prohibits wireless facilities in most of the City.

50. Even in the limited portion of the City that is theoretically available for wirelessinfrastructure, the Ordinance imposes additional barriers that make it effectively impossible to

place or upgrade wireless facilities. These include requiring the maximum achievable setback

from any permitted child care facility, school, or residential zone; a separate 50-foot residential

setback for facilities within the San Pablo Commercial and Solano Commercial zones; and proof

that the applicant needs to build or modify its facility in order to provide service within the Albany

city limits.

51. Moreover, the Ordinance imposes a burdensome, complicated, costly, and time-consuming process for every request to place or modify a wireless facility. Nowhere does the

Ordinance impose any outside time limit on the required processes to ensure that applications are

reviewed and acted on within a reasonable period of time in compliance with federal law. See

Shot Clock Ruling, 24 FCC Rcd at 13995 ( 4) (generally requiring localities to act on completed

applications within 90 days (in the case of collocations) or 150 days (for siting applications other

than collocations)).

52. As clearly illustrated by the facts in this case, the Ordinances permitting processdoes not include meaningful distinctions between applications to construct a new tower, a new

facility that collocates on an existing structure (even those that are completely camouflaged within

such structure), and a simple request to upgrade existing antennas on a previously approved

facility. No matter how small the modification or how well hidden the facility, each application is

subject to a maze of burdensome application submittal requirements, consultants retained at the

applicants expense, certifications, public notifications, hearings, and the requirement of a

discretionary use permit in all cases.

53. Finally, the Ordinance intrudes directly into the technical and operational aspects ofwireless technology. The Ordinance purports to limit facilities within Albany to providing service



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(415)288-4000

within the Albany city limits, requires them to specify the type, manufacturer, and model number

of antennas and other equipment used to service their customers, seeks to prevent any upgrade in

technology or new services at facilities that existed as of the date of its enactment, and requires

costly and burdensome discretionary review of any such upgrades, regardless of whether they have

any visual, noise, or other impacts properly regulated under the Ordinance.

54. As set forth below, the Ordinance is preempted by federal law in a number of waysand should be enjoined by this Court. The foregoing examples of the flaws in the Ordinance

which render it unenforceable are not intended to provide an exhaustive account.

VII. PROLONGED REVIEW AND UNLAWFUL DENIAL OF THE APPLICATION

55. The burdens imposed by the Ordinance are well illustrated by the Citys lengthyreview and ultimate denial of the simple request by Verizon Wireless to upgrade the antennas at it

Existing Facility.

56. On June 22, 2009, Verizon Wireless, through its agent and landlord Crown,submitted an application for a conditional use permit (CUP) to replace the four existing antenna

panels with four new ones, and to add two additional antenna panels for a total of six. Verizon

Wireless needed to upgrade its antennas in order to provide 4G LTE service. Because it cannot

provide 4G LTE service using the existing antennas, Verizon Wireless has a significant gap in 4G

LTE coverage in the area served by the Existing Facility.

57. The City engaged consultant Jonathan Kramer to review the application. In areport dated February 8, 2010, Mr. Kramer concluded that the proposal would comply with FCC

limits on RF emissions, that the increase from four to six panels will not materially or

substantially alter the existing aesthetics of this site, and that the City should approve it.

58. The Albany Planning Commission reviewed the application on April 27, 2010.Despite a report from planning staff recommending approval, the Commission took no action.

Some Commissioners expressed concern that the proposed addition of two antenna panels was an

expansion of a legal non-conforming use, and continued the item to May 25, 2010, for further

discussion. The May 25, 2010 hearing date was continued to June 22, 2010, and then



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subsequently to a future undetermined date.

59. Following the April 27th hearing, Verizon Wireless revised its plans to eliminate theneed for the two additional antenna panels, concluding it could fill the gap in 4G LTE service by

replacing the four existing panels with four newer models of substantially the same size and

appearance. Since this type of like-for-like swap of physically similar antenna panels is a routine

part of maintaining its network, Verizon Wireless believed it could perform the work without

permits, in accordance with the exemption for routine maintenance under the Citys Ordinance.

Verizon Wireless therefore commenced the work, but the City issued a stop-work order on

September 24, 2010.

60. On October 14, 2010, Verizon Wireless submitted its revised plans to the City, inwhich it proposed the four-panel swap. At a hearing on October 26, 2010, the Planning

Commission determined that the proposed swap constituted maintenance, which the Ordinance

exempted from the requirement for a use permit. The Commission authorized planning staff to

approve the work with a ministerial permit. Since the Commission had determined that no use

permit was required, Crown withdrew the use permit application on behalf of Verizon Wireless.

61. On November 1, 2010, in a closed session of the Albany City Council (theCouncil), a Council Member requested that the Council review the Planning Commissions

decision.

62. At a subsequent hearing on December 13, 2010, the Council reversed the PlanningCommission and determined that the proposed like-for-like swap would require a CUP. Prior to

this hearing, City planning staff advised the Council that the key issue is whether the replacement

of four existing antenna enclosures with four similar looking, but technologically updated antenna

enclosures, triggers a need for a new conditional use permit. Staff Report for December 13,

2010, Council hearing, at p. 3 (emphasis added). Planning staff conceded that there would be no

adverse visual impact, and possibly even some improvement: In terms of placement and design,

the appearance of the facility will not change. In addition, the applicant has offered to reduce the

length of the support brackets, bringing the antenna enclosures in closer to the pole. Although it



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does not change the height, which is the primary area of non-conformity, changing the brackets

would be a modest aesthetic improvement. (Id., p. 5.) In reversing the Commission, the Council

did not even suggest that the upgrade would cause any adverse visual or other impacts. Instead, it

decision was based entirely on the finding that Verizon Wireless sought to upgrade its technology

in order to provide new services from the Existing Facility.

63. On January 20, 2011, Verizon Wireless, through its agent Crown, filed anotherCUP application (the Application) seeking approval for the same four-panel swap the Planning

Commission had previously approved. It did so under protest, expressly noting its position that no

CUP was required for this routine maintenance.

64. On July 26, 2011, the Planning Commission considered the four-panel swap for thesecond time. In a staff report for that hearing, City Planning Staff conceded that the FCC is the

primary regulator of wireless communications, including the design and operation of equipment.

(Staff Report for the July 26, 2011, Planning Commission hearing, p. 2.) Nonetheless, the

Commission denied the Application on the basis that the Council had determined that replacing

the antenna panels constituted an upgrade in technology rather than maintenance, and that the

panels would be installed above the height limit, ignoring the fact that they would simply replace

existing panels of substantially the same size with no increase in height, visual impact, or any

other characteristic of legitimate concern to the City.

65. Verizon Wireless, through its agent Crown, filed a timely appeal to the Council,which first reviewed the Application at a hearing on September 19, 2011. At the hearing,

representatives of Crown and Verizon Wireless, including a Verizon Wireless RF engineer,

explained the need for the antenna replacement, and the absence of any feasible alternatives.

Despite their consistently stated position that alternative locations were an irrelevant consideration

for this minor equipment upgrade, the Crown and Verizon Wireless representatives explained their

review of both on-site and off-site alternatives in a level of detail that would have been appropriate

if they were proposing a new, free-standing wireless facility.

66. The on-site alternative of lowering the antennas to the height limit of 48 feet was



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not feasible because MetroPCS already had its antennas at approximately that level and, even if it

did not, lowering the Verizon Wireless antennas to that level would markedly shrink the coverage

footprint of the Existing Facility and compromise existing service.

67. The numerous off-site alternatives considered would either be prohibited by theCitys restrictive Ordinance (as in the case of a new monopole), or would not provide adequate

coverage, either due to inadequate height, distance from the coverage target, or proximity to other

nearby facilities (which can create signal interference).

68. Moreover, any off-site alternative would be inconsistent with the preference forcollocation under the Ordinance, and would necessarily be more intrusive than simply replacing

the existing four antenna panels with physically similar ones. For these reasons, the Crown and

Verizon Wireless representatives explained replacing the antennas represented the least intrusive

means of providing the needed 4G LTE coverage.

69. The Council chose not to accept this overwhelming evidence. Instead, it continuedthe hearing so that its supposed expert, Jonathan Kramer, could review the underlying technical

data on which Crown and Verizon Wireless based their testimony. On September 22, 2011, the

City demanded that Verizon Wireless provide Mr. Kramer with a host of technical data, most of

which would have been extremely burdensome to produce and would have been completely

unnecessary to any rational evaluation of the simple replacement of existing antenna panels with

no discernible impacts. This included, among other burdensome busy-work, coverage maps for

each of the numerous off-site alternatives, and documentation of inquiries to landlords for each

alternative, even though each of these had been rejected because new antennas at the Citys 48-

foot height limit could not conceivably provide 4G LTE coverage equivalent to the proposed

antennas centered at 59 feet, with their tops extending to 61 feet.

70. Verizon Wireless responded with a letter from its RF Engineer dated October 3,2011, explaining in detail the basis for his conclusion that each of the alternatives was infeasible,

and also explaining why most of the information requested by Mr. Kramer was unnecessary and

irrelevant to any such determination.



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71. In a report dated November 2, 2011, Mr. Kramer opined that because Verizonproposed to deploy an entirely new radio service on a new band of operations, the work did not

qualify as maintenance. He also concluded that it would actually increase the number of antennas

because each of the four panels would enclose more than one antenna (though elsewhere in his

report he described the proposal as a four (4) antenna configuration); that Verizon Wireless had

failed to provide sufficient information to establish the absence of off-site alternatives; and that its

antenna replacement would have a negative visual impact.

72. Mr. Kramers conclusion concerning the purported negative visual impact was notonly in direct contradiction to his own previous report (which he sought to explain on the basis

that he had not visited the site before issuing the earlier report, and that it involved installing six

antennas rather than four), but was the first time any City representative had even suggested that

visual impact was an issue with the Application. Notably, Mr. Kramer did not base his finding of

visual impact on the antennas themselves, but on the coaxial cables that would be attached to

them, and the manner of attaching them to the antennas. Mr. Kramer ignored the facts that the

new cables would be less than one inch in diameter, identical to those already on the monopole

(and similar to ordinary television cables), and would be attached to the new antennas in exactly

the same manner and location as those presently attached to the existing antennas.

73. At a hearing on November 7, 2011, the Council voted to deny the appeal and theApplication, and adopted a resolution memorializing that decision (the Decision). The Decision

relied expressly on Mr. Kramers report and his testimony at the hearing, adopting his reasoning

almost verbatim for the key findings that: (a) the antenna replacement would not involve

maintenance but rather an upgrade to new technology using a different frequency and therefore

would require a CUP; (b) it would increase the visual impact of the Existing Facility; and (c)

Verizon Wireless did not adequately demonstrate the absence of feasible alternatives in order to

qualify for an exception to the height limit.

VIII. IRREPARABLE INJURY, PUBLIC INTEREST, AND BALANCE OF HARDSHIPS

74. As a result of the Citys actions, Verizon Wireless has been, and will continue to be



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damaged and irreparably harmed absent the relief requested herein. The harm caused by the

Citys unlawful actions includes, but is not limited to, impairment of Verizon Wirelesss: (a)

ability to provide its customers in the City with the enhanced fourth-generation wireless

broadband service available elsewhere in the Bay Area and Nation; (b) ability to compete with

other providers of telecommunications services; (c) full use of its existing licenses and business

investments; and (d) good will and business reputation.

75. The harm that the Citys actions have caused Verizon Wireless is not reasonablysusceptible to accurate calculation, and cannot be fully and adequately addressed through an award

of damages.

76. Moreover, the public interest in promoting competition, lower prices, and rapiddeployment of new technology in the telecommunications arena the express goals of the

Telecommunications Act has been irreparably harmed and will continue to be irreparably

harmed by the Citys unlawful actions. Verizon Wirelesss present and future customers, as well

as the public at large, are significantly prejudiced by the Citys unlawful conduct.

77. In addition, wireless telecommunications are an important component ofemergency response systems and provide a vital alternative to traditional land lines during fires,

earthquakes, and other natural and man-made disasters. By preventing Verizon Wireless from

installing equipment needed to provide improved service, the Citys unlawful actions are causing

irreparable harm to the public interest in reliable emergency and first responder communications.

78. In contrast to the immediate and irreparable injury being suffered by VerizonWireless, its customers, and the public interest, the City will suffer no injury if the Court issues the

requested declaratory and injunctive relief. The replacement of four antenna panels with four

newer models of virtually identical size and appearance will have no visual or other impacts, and

the level of technology, frequencies used and services provided by the Existing Facility are

beyond the Citys legitimate authority to regulate.

IX. ALLEGATIONS SUPPORTING DECLARATORY RELIEF

79. A present, actual controversy has arisen and now exists between the parties



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regarding their respective legal rights and duties. Verizon Wireless contends that the Citys

actions were preempted by and in violation of the Act. On information and belief, the City denies

such allegations.

80. Verizon Wireless has been and will continue to be adversely affected by the Citysunlawful acts.

81. Accordingly, declaratory relief is appropriate and necessary to adjudicate the extentof Verizon Wirelesss rights and the Citys duties and authority.

COUNT ONE(Preemption Under 47 U.S.C. 253 and the Supremacy Clause)

82. Verizon Wireless re-alleges and incorporates by reference all preceding paragraphsas if fully restated herein.

83. Section 253 of the Communications Act expressly commands that [n]o State orlocal statute or regulation, or other State or local legal requirement, may prohibit or have the effect

of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications

service. 47 U.S.C. 253(a).

84. The Ordinance purports to regulate and limit telecommunications serviceproviders facilities and technologies, imposes unduly burdensome requirements that rise to the

level of a prohibition, imposes unlawful discrimination, and permits the City to restrict and

prohibit telecommunications services offered.

85. On information and belief, no wireless siting applications have been approved bythe City since the enactment of the Ordinance.

86. To the extent that the Ordinance purports to give the City authority to regulate andlimit telecommunications service providers facilities and technologies, imposes unduly

burdensome requirements that rise to the level of a prohibition, imposes unlawful discrimination,

or otherwise restricts and prohibits telecommunications services offered, the Ordinance is

preempted under Section 253.

87. The Decision also constitutes further evidence that the Ordinance as a wholeoperates as an effective prohibition within the meaning of Section 253.



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88. The Ordinance prohibits and has the effect of prohibiting the provision of wirelesstelecommunications services under Section 253 of the Communications Act, and is also preempted

under the Supremacy Clause of the U.S. Constitution.

COUNT TWO(Preemption Under 47 U.S.C. 332(c)(3) and the Supremacy Clause)


90. Section 332(c)(3)(A) of the Communications Act states that no State or localgovernment shall have any authority to regulate the entry of or the rates charged by any

commercial mobile service. 47 U.S.C. 332(c)(3)(A).

91. Technical regulation of wireless services as a condition precedent to providingservice is entry regulation of the type prohibited by Section 332(c)(3)(A).

92. Restrictions or prohibitions on the ability to offer any commercial mobile service isentry regulation of the type prohibited by Section 332(c)(3)(A).

93. The Ordinance imposes and permits technical regulation of a commercial mobileservice or services in the City, in violation of 47 U.S.C. 332(c)(3)(A). The Decision is based on

and includes technical regulation of wireless services in the City as a condition precedent to

providing service, and is entry regulation of the type prohibited by 47 U.S.C. 332(c)(3)(A). It

regulates technical and operations aspects of commercial mobile service or services in the City, in

violation of 47 U.S.C. 332(c)(3)(A).

94. The Ordinance and the Decision regulate, restrict, and limit the provision of acommercial mobile service or services, in violation of 47 U.S.C. 332(c)(3)(A).

95. The Ordinance and the Decision constitute barriers to entry that are prohibited by47 U.S.C. 332(c)(3)(A).

96. The Ordinance and Decision are preempted by 47 U.S.C. 332(c)(3)(A) and theSupremacy Clause.



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COUNT THREE(Field Preemption of the Ordinance and the Supremacy Clause)


98. At the direction of Congress, federal law has completely occupied the field ofwireless licensing and the field of regulation concerning the technical and operational aspects of

wireless telecommunications service. No state or local government may regulate these matters.

99. The Ordinance and the Decision condition, regulate, and restrict federally licensedactivities, and regulate the technical and operational aspects of wireless telecommunications

services.

100. The Ordinance and the Decision intrude into a field occupied exclusively by thefederal government and are preempted by the Supremacy Clause of the U.S. Constitution.

COUNT FOUR(Agency Preemption of the Ordinance and the Supremacy Clause)


102. Pursuant to its broad Congressional mandate to regulate wireless communications,the FCC has promulgated technical and operational standards for wireless telecommunications

service and has made clear that these regulations are preemptive and that local governments have

no authority to establish or enforce technical standards for wireless service. See, e.g.,In re Future

Use of Frequency Band806-960 MHZ, 46 FCC 2d 752, 766-67 ( 43, 44) (1974) (the FCCs

technical standards and . . . operational rules are to apply nation-wide . . . without regard to state

boundaries or varying local jurisdictions.); Use of the Bands 825-845 MHz and 870-890 MHz, 86

FCC 2d 469, 503-05 ( 79, 82) (1981) ( asserting federal primacy over the areas of technical

standards and competitive market structure for cellular service); Use of the Bands 825-845 MHz

and 870-890 MHz, 89 FCC 2d 58, 95 ( 81) (1982) (It is imperative that no additional

requirements be imposed by the states which could conflict with our standards and frustrate the

federal scheme for the provision of nationwide cellular service.).



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103. The FCC has imposed both general and specific requirements and duties on theholders of wireless licenses, including build out obligations that require a licensee to begin

offering service using licensed spectrum within a set period of time, and has also affirmatively

determined not to regulate certain aspects of wireless telecommunications services.

104. The FCCs administrative orders and regulations have the same preemptive effectas other federal laws, and its regulations will pre-empt any state or local law that conflicts with

such regulations or frustrates the purposes thereof. City of New York v. FCC, 486 U.S. 57, 64

(1988). The decision not to regulate can have the same preemptive effect as a decision to impose

regulation.

105. The Ordinance and Decision purport to regulate the technical and operationalaspects of wireless networks, conflict with both general and specific FCC orders, frustrate the

objects and purposes of the Communications Act as implemented by the FCC, and are thus

preempted by the Supremacy Clause of the U.S. Constitution.

COUNT FIVE(DenialNot Based On Substantial Evidence In Violation Of 47 U.S.C. 332(c)(7)(B)(III))


107. The Application constitutes a request for the placement of a personal wirelessservices facility and, as such, Verizon Wireless is entitled to the benefits and protections of the

TCA with respect to such application.

108. The Decision was not based on substantial evidence to the extent it relied on theopinion of Jonathan Kramer. On information and belief, Mr. Kramer lacks the necessary

qualifications to render an expert opinion on either the aesthetic or technical aspects of the

Application. In addition, his opinion was internally inconsistent, ignored important facts, and

otherwise inadequate to constitute substantial evidence.

109. The finding of increased visual impact lacks any factual basis, and is contrary to theCitys prior finding that the MetroPCS facility would have no such impact, the admissions of

planning staff in reviewing the Verizon Wireless Application, and the admissions of Mr. Kramer



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in reviewing the previous Verizon Wireless proposal to install six antenna panels instead of four.

110. The Decision was contrary to established California law recognizing the vestedright to continue a legal non-conforming use barring any physical expansion or change in use, and

that one entitled to a nonconforming use has a right to . . . engage in uses normally incidental

and auxiliary to the nonconforming use . . . . Hansen Brothers Enterprises, Inc. v. Board of

Supervisors of Nevada County, 12 Cal. 4th

533, 565 (1996) (quoting 8A McQuillin, Municipal

Corporations (3d ed. 1994) 25.200, p. 89) (italics added by the Court). The addition of 4G LTE

antennas to an existing cell site is neither an expansion nor a change in the use.

111. In addition, the operation of a cell site includes the right to replace antennas andmake other routine equipment upgrades. Under California law, rights concerning the construction

and deployment of telecommunications services incorporate the natural evolution of

communications technology. Salvaty v. Falcon Cable Television, 165 Cal. App. 3d 798, 803

(1985); see also Williams Communications, LLC v. City of Riverside, 114 Cal. App. 4th 642, 653

(2004).

112. To the extent the Decision reflects an effort by the City to regulate and restrict thetechnology used by Verizon Wireless it is also preempted by federal law, as set forth in more

detail in Counts One through Four of this Complaint.

113. Thus, the Decision was not based on substantial evidence and therefore violated 47U.S.C. 332(c)(7)(B)(iii).

COUNT SIX(Prohibition of Service in Violation of 47 U.S.C. 332(c)(7)(B)(i)(II))


115. The Decision prohibits Verizon Wireless from making technical and operationalchanges that are necessary in order to provide new personal wireless services and to continue

providing existing personal wireless services.

116. The Decision expressly denies Verizon Wirelesss propos[al] of an altogethernew deployment of wireless service from the existing facility. The City states that it is denying



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the proposed deployment of an entirely new radio service proposed in the application. The

Decision is keeping Verizon Wireless from offering additional wireless services.

117. Verizon Wireless has a significant gap in service in the area served by the ExistingFacility, and the Decision prevents Verizon Wireless from filling that gap by the least intrusive

means.

118. The Decision thus prohibits or has the effect of prohibiting Verizon Wireless fromproviding personal wireless services in violation of 47 U.S.C. 332(c)(7)(B)(i)(II).

COUNT SEVEN(Unreasonable Discrimination in Violation of 47 U.S.C. 332(c)(7)(B)(i)(I))

119. Verizon Wireless re-alleges and incorporates by reference all preceding paragraphs120. Verizon Wireless and MetroPCS are competitors and provide functionally

equivalent personal wireless services.

121. The City has permitted MetroPCS to install an array of six antenna panels on thesame pole as the Verizon Wireless Facility. Because it added new antennas to the pole, the

MetroPCS project had far more visual impact than the simple replacement of antennas proposed in

the Verizon Wireless Application.

122. By denying the Verizon Wireless Application, the City discriminated unreasonablyagainst Verizon Wireless in violation of 47 U.S.C. 332(c)(7)(B)(i)(I).

PRAYER FOR RELIEF

WHEREFORE, Verizon Wireless respectfully requests that this Court enter judgment

against the City as follows:

(i) For a declaratory judgment on Count One that the Ordinance is preempted under 47U.S.C. 253 and violates the Supremacy Clause of the U.S. Constitution.

(ii) For a declaratory judgment on Count Two that the Ordinance and Decision arepreempted under 47 U.S.C. 332(c)(3) and violate the Supremacy Clause of the U.S.

Constitution.

(iii) For a declaratory judgment on Count Three that the Ordinance and Decision



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regulate the technical and operational aspects of wireless service and therefore intrude into a field

exclusively occupied by federal law, conflict with federal law, violate the Supremacy Clause of

the U.S. Constitution and are preempted.

(iv) For a declaratory judgment on Count Four that the Ordinance and Decision imposetechnical standards on the deployment of personal wireless facilities which are preempted by the

regulatory actions of the FCC, and violate the Supremacy Clause of the U.S. Constitution.

(v) For a declaratory judgment that the entire Ordinance is invalid based upon thedeclarations sought in Counts One through Four or, in the alternative, a declaration that any

invalid portions of the Ordinance are so inextricably intertwined with the remaining provisions

that the Ordinance cannot function effectively without the invalid provisions and must therefore be

invalidated in its entirety.

(vi) For preliminary and permanent injunctive relief on all Counts enjoining the Cityand any of its officers, employees, or agents from taking any action to enforce any part of

Ordinance or from taking any action that would prohibit Verizon Wireless from providing wireless

telecommunications services to any part of the City.

(vii) For a declaratory judgment on Count Five that the Decision denying theApplication was not based on substantial evidence, in violation of 47 U.S.C. 332(c)(7)(B)(iii);

(viii) For a declaratory judgment on Count Six that the Decision had the effect ofprohibiting Verizon Wireless from providing personal wireless services, in violation of 47 U.S.C.

332(c)(7)(B)(i)(II);

(ix) For a declaratory judgment on Count Seven that in denying the Application, theCity discriminated unreasonably against Verizon Wireless, in violation of 47 U.S.C.

332(c)(7)(B)(i)(I);

(x) For preliminary and permanent injunctive relief on all Counts directing the City togrant Verizon Wireless any and all authorizations or approvals necessary to make the changes

sought in the Application that was the subject of the Citys Decision.

(xi) For expedited review of the matters set forth in this complaint;



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(xii) Awarding Verizon Wireless the costs and disbursements incurred in connectionwith this action pursuant to 28 U.S.C. 1920; and

(xiii) Granting such other relief as this Court considers just and proper.

DATED: December 7, 2011 Mackenzie & Albritton LLP

By:James A. Heard

Attorneys for Real Party GTE MOBILNET OFCALIFORNIA LIMITED PARTNERSHIP,D/B/A VERIZON WIRELESS



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1 RESOLUTION NO. 2011-5623 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ALBANY4 DENYING TH E APPEAL FILED BY CROWN CASTLE ON BEHALF OF5 VERIZON WIRELESS AND DEl'I'YING THE APPLICATION FOR A6 CONDITIONAL USE PERMIT AND DESIGN REVIEW TO MODIFY A7 NONCONFORMING WIRELESS FACILITY LOCATED AT 423 SAN8 PABLO AVENUE AND MAKING WRITTEN FINDINGS IN SUPPORT9 THEREOF101112 WHEREAS, on June 22, 2009 Crown Castle on behalf of Verizon WirelessI3 (the "applicant") submitted an application for a conditional use permit to increase the14 number of antenna enclosures from four to six enclosures with ancillary15 improvements on an existing nonconforming wireless communication facility (the16 nonconforming wireless facility") located at 423 San Pablo Avenue (the "prior17 application"). The existing wireless facility is nonconforming with respect to the18 height limits of the Planning and Zoning Code which imposes a 48 foot maximum19 height limit. The existing wireless facility consists of a 65 foot tall monopole with20 the Verizon antennas located at a height of 59 feet on the pole;2122 WHEREAS, during the time that the prior application was pending before the23 Planning and Zoning Commission, the City's building inspector observed that new24 antennas were being installed on the nonconforming wireless facility without any25 City approval or permits and issued a stop work order;2627 WHEREAS, on October 14, 20 I0, the applicant submitted revised plans that28 reduced the number of antenna enclosures from four to six. However, the number of29 antennas within the four enclosures still increased from four to six antennas and the30 new equipment proposed by the prior application deployed an entirely new wireless31 network (called Long Term Evolution, or "LTE") that provides high speed data32 communications as part of a 4G network;3334 WHEREAS, on October 26, 20 I0, the Planning and Zoning Commission35 reviewed the revised prior application and determined that the proposal consisted of36 routine maintenance not requiring a conditional use permit. At the Commission37 hearing, the applicant withdrew the prior application;3839 WHEREAS, on November 1,2010, pursuant to Municipal Code Section40 20.100.080.c.2.b, Councilmember Atkinson made a request that the City Council41 review the Commission's determination that the proposal consisted of routine42 maintenance. All references in this Resolution to section numbers are to sections of43 the Albany Municipal Code unless other specified;4445 WHEREAS, the City Council conducted its review of the Planning and46 Zoning Commission determination on December l3 , 2010. The Council voted

I


Exhibit A


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I unanimously that the proposed project was not routine maintenance but instead an2 upgrade to the nonconforming wireless facility. The Council directed that the matter3 be returned to the Planning and Zoning Commission after a new application was filed4 by the applicant and that the staffand Commission review include a full analysis of5 feasible alternative sites that would conform to all Code requirements;678 WHEREAS, on January 20,2011, the appiicant submitted a new application9 (the "application") which substantially reflected the revised plans submitted to the

10 City in October 2010. The application did not include an alternative sites analysis asI I directed by the Council and staff detennined that the application was not complete.12 Correspondence ensured between the applicant and the City on the completeness of13 the application and the applicant threatened to sue the City ifthe application was not14 accepted as complete and submit ted to the Planning and Zoning Commission for15 revIew;1617 WHEREAS, on June 21, 20 I I , the City accepted the application as complete18 in order to avoid litigation and due to the fact that it was clear that the applicant19 would continue to refuse to submit the additional information demanded by the City20 staff. In a letter from Community Development Director Jeff Bond, dated June 21,21 20 I I , the applicant was informed that in accepting the application as comple te the22 City was not waiving its right to require more information from the applicant,23 including the right of the Commission or Council to require the preparation of24 alternative site studies before making a decision on the application. At this time, a25 Tolling Agreement was entered into by the applicant and the City clarifying the t ime26 period in which the City was required to take action on the application in accordance27 with the Federal Communications Commission "Shot Clock" declaratory ruling;2829 WHEREAS, on July 26,2011, the Planning and Zoning Commission held a30 public hearing on the application. The Commission voted to deny the application on31 the basis that the existing facility is nonconforming, that the modification to the32 facility is not merely maintenance of an existing facility at an existing wireless site,33 and that the proposed modif ication is not consistent with City ordinances. The34 Commission also determined that a sufficient alternative solutions analysis was not35 provided by the applicant;3637 WHEREAS, on September 19,2011, the City Council held a de novo public38 hearing on the appeal filed by the applicant from the Planning and Zoning39 Commission hearing. After hearing from the applicant and members of the public,40 the Council directed that the hearing be continued in order that an independent review41 of the application can be conducted by a qualified technical expert hired by the City42 and that the written documentation upon which the Verizon engineer's opinions are43 based be provided to the City. Section 20.20.1OO.F .4.b.1 and b.2 authorize the City44 to require an independent review of a wireless facility application and to require an45 alternative sites or solutions analysis. The applicant consented to the continuance of

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I the hearing and the Tolling Agreement between the applicant and the City was2 extended to November 9, 2011;34 WHEREAS, the City retained Jonathan Kramer, a well-known and qualified5 telecommunications and radio frequency expert, to perform an independent review of6 the application. Mr. Kramer requested additional information from the applicant in7 order to better understand the scope of the proposed project; to determine whether an8 exception is warranted pursuant to Section 20.20.100.F.5.a.3; and to evaluate whether9 alternative solutions that conform to the City's zoning requirements are feasible. The10 applicant failed to provide most of the information requested by Mr. Kramer andI I failed to provide the supporting data and documentation for the opinions offered by12 Verizon's engineer at the September 19,2011 public hearing; and1314 WHEREAS, on November 7, 2011, the City Council held the continued15 public hearing on the appeal and application. The Council received an updated staff16 report and the report prepared by Mr. Kramer and heard additional testimony by the17 applicant and members of the public.181920 NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City21 of Albany, as follows:2223 I. The City Council hereby denies the appeal filed by Crown Castle on behalf of24 Verizon Wireless, and denies the application for a Conditional Use Permit and Design25 Review for the modification of an existing nonconforming wireless facility located at26 423 San Pablo Avenue (the "subject property"), based upon the findings set forth in27 Sections 4,5 and 6 of this Resolution.2829 2. The City Council hereby relies upon, incorporates and adopts the facts set30 forth in this Resolution, including without limitation the recitals, and finds that those31 facts and recitals are true and correct. The City Council has considered the staff32 reports and responses by staff to questions, the written report by Jonathan L. Kramer,33 dated November 2,2011, and his oral testimony and responses to questions at the34 public hearing, the presentation and written materials provided by the applicant and35 all other testimony and information provided during the public hearing before the36 City Council.3738 3. The City Council hereby finds that this project is exempt from CEQA39 pursuant to CEQA Guidelines Section 15270(a), which exempts projects that are40 denied by the public agency.4142 4. The City Council affirms its previous determination that the application does43 not propose routine maintenance of the nonconforming wireless facility, but instead44 proposes a significant modification and upgrade to the existing facility requiring the45 approval of a conditional use permit and design review pursuant to Section46 20.20.100.F. The application proposes an altogether new deployment of wireless

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I service from the existing facility, increases the number of antennas from four to six,2 changes the antenna type and model, degrades the visual appearance of the project3 site which is visible and dominating above the nearby structures and is plainly visible4 from the City's north-south arterial roadway, and results in an intensified use of an5 existing nonconfonning structure that exceeds the Planning and Zoning Code height6 limit by 17 feet.78 5. The City Council makes the following findings pursuant to Section9 20.20.l00.F.5 related to the requested conditional use penni!:

10II a. The proposed project at the wireless facility is not designed to protect the12 visual quality of the City. The existing facility exceeds the City's height13 limit by 17 feet. Photographs of the subject property in the administrative14 record demonstrate that the existing facility far exceeds the height of the15 adjacent commercial and residential buildings in a visually dominating16 manner and is unsightly and out of character with the surrounding area.17 The proposed modification adds at least eight new coaxial and other types18 of cables to the facility that will add to the visual clutter of the existing19 pole. The project plans submitted by the applicant are internally20 inconsistent. The antenna enclosures will use bottom connectors and21 cables that are much more visible than rear mounted connectors and22 cables. Due to the proposed deployment of an entirely new radio service23 proposed in the application, it is anticipated that additional equipment not24 shown in the project plans will need to be added to the pole to provide the25 new services proposed by the application.2627 b. All applicable development standards required by the City Code have not28 been met by the application. The current development standards at29 Section 20.20.1 00.E.2.h and 4.b impose a 48 foot height limit on a30 wireless facility located on the subject property. The existing monopole is31 65 feet in height with the Verizon antenna enclosures located on the pole32 at a height of 59 feet. The violation of the City's height limit requires a33 denial of the application unless an exception is granted by the City34 Council pursuant to the requirements in Section 20.20.100.F.5.a.3.35 Further, the proposed project will extend the life of a nonconfonning36 structure contrary to the purposes and requirements of Section 20.44.030.3738 c. Section 20.20.100.F.5.a.3 sets forth the finding that must be made to grant39 an exception to a development standard. The Council must find that40 "[s]tr ict compliance would not provide for adequate radio-frequency41 signal reception and that no other alternative solutions which would meet42 the development standards are feasible." The applicant has the burden of43 proof to show that this finding can be made, and why it should be made.44 Not only has the applicant failed to demonstrate that this finding is met,45 but the report by Mr. Kramer and other evidence in the record46 demonstrates that a sufficient alternative solutions analysis has not been

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VERIZON WIRELESS, Plaintiff, vs. CITY OF ALBANY, Defendant

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Transcript of VERIZON WIRELESS, Plaintiff, vs. CITY OF ALBANY, Defendant