Los Altos, CA


MEYERS NAVE
1999 Harrison Street, 9th Floor Oakland, California 94612
Telephone: (510) 808-2000 // Facsimile: (510) 444-1108
Attorneys for Defendant CITY OF LOS ALTOS

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

GTE MOBILNET of CALIFORNIA LIMITED PARTNERSHIP, a California Limited Partnership d/b/a VERIZON WIRELESS, Plaintiff,

v.

CITY OF LOS ALTOS, Defendant.

Case No. 5:20-cv-00386-EJD STIPULATION AND [PROPOSED] ORDER STAYING OUTSTANDING DISCOVERY AND CONTINUING DEADLINES PENDING THE COURT’S RULING ON VERIZON’S SUMMARY JUDGMENT MOTION

The Hon. Edward J. Davila Trial Date: None Set

Defendant City of Los Altos (“City”) and plaintiff GTE Mobilnet of California Limited Partnership, a California limited partnership d/b/a Verizon Wireless (“Verizon Wireless”) (collectively, the “Parties”) stipulate as follows:

  1. Verizon Wireless has filed a motion for summary judgment that is currently pending and set for hearing on September 2, 2021, at 9:00 a.m.
  2. Pursuant to the Court’s February 11, 2021, Case Management Order, the fact discovery cutoff is currently set for August 20, 2021; the deadline for designating experts and exchanging opening expert reports is set for September 17, 2021, and the deadline for serving rebuttal expert reports is set for October 22, 2021; the expert witness discovery cutoff is set for December 17, 2021; and the deadline for filing dispositive motions is set for February 25, 2022.
  3. Pursuant to the Court’s April 15, 2021, Order, the Pretrial Conference is set for August 26, 2021, for which a Joint Statement is due August 16, 2021.
  4. A trial date has not yet been set.
  5. The City has propounded additional written discovery upon Verizon, for which responses are due August 23, 2021, and has noticed the depositions of Verizon’s fact witnesses for August 18 and 19, 2021.
  6. The parties have met and conferred and determined that, considering the pending summary judgment motion, it would be in the parties’ mutual interest and the interests of judicial economy to stay the City’s pending discovery, vacate the current fact and expert discovery deadlines set by the Court’s February 11, 2021, Case Management Order, and to continue the Pretrial Conference, all to be reset, if necessary, after the Court has ruled on Verizon Wireless’s pending summary judgment motion.
  7. The parties, therefore, ask the Court to order the Parties to submit a proposed pretrial schedule, if necessary, addressing the following deadlines, within 20 days after the Court’s ruling on Verizon’s pending motion for summary judgment:
  • Verizon Wireless’s deadline for responding to the City’s outstanding written discovery;
  • The fact discovery cutoff;
  • Designation of opening experts with reports;
  • Designation of rebuttal experts with reports;
  • Expert discovery cutoff;
  • Deadline for filing dispositive motions;
  • Submission of joint pretrial conference statement;

DATED: August 11, 2021

MEYERS NAVE

By:

/s/ Deborah J. Fox
DEBORAH J. FOX
Attorneys for Defendant CITY OF LOS ALTOS
DATED: August 11, 2021

MACKENZIE & ALBRITTON LLP

By:

/s/ Mark L. Mosley
MARK L. MOSLEY
Attorneys for Plaintiff GTE MOBILNET OF CALIFORNIA LIMITED PARTNERSHIP, a California limited partnership d/b/a VERIZON WIRELESS
DATED: August 11, 2021


Case 5:20-cv-00386-EJD Document 66 Filed 08/17/21 (11 pages)

MACKENZIE & ALBRITTON LLP

  • JAMES A. HEARD, State Bar No. 114940 jheard@mallp.com
  • MARK L. MOSLEY, State Bar No. 136449 mmosleyesq@gmail.com
  • MELANIE SENGUPTA, State Bar No. 244615 m.sengupta@mallp.com
  • 155 Sansome Street, Suite 800 San Francisco, CA 94104
  • Telephone: (415) 288-4000 Facsimile: (415) 288-4010

Attorneys for Plaintiff GTE MOBILNET OF CALIFORNIA Limited Partnership, a California limited partnership d/b/a VERIZON WIRELESS




UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

Case No. 5:20-cv-00386-EJD

  • Date: December 2, 2021 Time: 9:00 a.m.
  • Courtroom: 4
  • Judge: The Hon. Edward J. Davila

GTE MOBILNET OF CALIFORNIA LIMITED PARTNERSHIP, a California limited partnership d/b/a VERIZON WIRELESS,Plaintiff, vs CITY OF LOS ALTOS, a California municipal corporation, Defendant.

SEPARATE STATEMENT OF PLAINTIFF VERIZON WIRELESS IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT

  • Source
  • Date: December 2, 2021
  • Time: 9:00 a.m.
  • Courtroom: 4
  • Judge: The Hon. Edward J. Davila

Pursuant to section V.B. of the Court’s Standing Order for Civil Cases, plaintiff GTE Mobilnet of California Limited Partnership, d/b/a Verizon Wireless (“Verizon Wireless”), submits the following reply separate statement of issues and material facts in support of its motion for partial summary judgment against defendant City of Los Altos (“City”):

  • Claim No. 1: The City’s 500-foot school setback “regulates the placement . . . of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions” in violation of 47 U.S.C. § 332(c)(7)(B)(i v).
  • Verizon Fact No. 1: During the public hearings at which the City Council deliberated and adopted the school setback, and in the hearings on the Application,1 participants urged the City to adopt the setback and deny the Application based on their fears of the supposedly harmful effects that radio frequency emissions from wireless facilities might have on children. Exhibits E (7/9 hearing transcript) at 49:6-14, 53:22 – 54:3; Exhibit F (7/30 hearing) at 80:7-10, 89:6-11, 108:3-13, 221:17-22, 244:1-21; Exhibit G (8/5 hearing) at 79:7-16, 95:2-12, 96:2- 12; Exhibit W (10/25 transcript) at 15:7-11; Exhibit X (12/17 transcript) at 50:1 – 51:11; 51:25 – 54:3; 55:21 – 56:13; Exhibit U (written statement submitted by Cindy Russell); Exhibit V (written statement submitted by Melissa Smith)
  • Los Altos Disputed. “Fact No. 1” is misleading. Residents expressed concerns on a variety of issues, including significant concerns over the aesthetic impact and blight that was expected from small deployments littering the residential areas of the City and around schools. Mehretu Decl., Exs. 110-115 [132- 157]. “Fact No. 1” is also irrelevant as it is the City Council’s determination that governs whether an ordinance will be adopted, and whether to uphold the denial of Verizon’s Application, and those determinations are reflected in the provisions of the ordinance, Resolution No. 2019-35, Decl. Ex. 108 [118], and called forth in the Council’s resolution denying Verizon’s appeal. Resolution No. 2019-51, Mehretu Decl. Ex. 108 [121].
  • Verizon Reply: The proffered exhibits (110-115) never mention the school setback and therefore they do not controvert this fact. The City points to only one exhibit (no. 114) that even mentions schools (but not the setback itself), and it does not propose a single aesthetic concern having anything to do with schools. It articulates only generic aesthetic complaints, which do not rise to the level of substantial evidence. See cases cited in footnote 2, on pages 6 and 7 of the reply brief. The focus of this statement (Exhibit 114) is to oppose the placement of wireless facilities “where children spend extended periods of time . . .” because “[e]xposure to cell towers are [sic] linked to higher rates of cancer.” This exhibit does not controvert Fact No. 1.

  • Claim No. 1: The City’s 500-foot school setback “regulates the placement . . . of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions” in violation of 47 U.S.C. § 332(c)(7)(B)(i v).
  • Verizon Fact No. 2: The projected radio frequency emissions at ground level from the Proposed Facility will be less than 2% of the limits set by the FCC. Exhibit D, at the 35th and 36th unnumbered pages (pages 1 and 2 of Radio Frequency Public Safety Report); Exhibit Q (updated report finding even lower levels); Exhibit X (12/17/2019 hearing transcript) at 14:24 – 17:21 (testimony of Dr. Jerrold Bushberg explaining meaning and significance radio frequency data). No contrary evidence was presented.
  • Los Altos Disputed. As to “Fact No. 2” the City has not had any opportunity to conduct expert discovery into Verizon’s claims about its RF emissions levels, and on that basis disputes this fact. Dkt. 39; Decl. ¶ 78. However, this fact is also irrelevant to the issue of Verizon’s claim because the City did not deny Verizon’s Application based on its level of Radio frequency emissions. Rather, the City denied Verizon’s Application because it did not comply with the City’s siting restrictions because it was located within 500 feet of a school in a Public and Community Facilities District. Mehretu Decl. Ex. 162 [588]; Verizon’s Application, Dkt. 51-2, pp. 54-94.
  • Verizon Reply: Expert discovery has nothing to do with this issue. The question here is whether there is any substantial evidence in the administrative record that radio frequency emissions from the proposed facility might exceed the FCC’s published limits. The cited report estimates that radio frequency emissions from the facility will come nowhere near those limits. The City had ample opportunity at the administrative hearing level to introduce contrary evidence and could not do so. This fact is uncontroverted.

  • Claim No. 1: The City’s 500-foot school setback “regulates the placement . . . of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions” in violation of 47 U.S.C. § 332(c)(7)(B)(i v).
  • Verizon Fact No. 3: No evidence was received by the City Council that would have justified the school setback on aesthetic grounds or any other reason besides concern about the alleged health impacts of radio frequency emissions.
  • Los Altos Disputed. As to “Fact No. 3,” concerns over the aesthetic impact of small cells littering residential areas of the City and around schools were widely held and forcefully expressed to the City in support of its comprehensive wireless ordinance, Mehretu Decl. Exs. 110-115 [132-157], which ordinance prohibits the siting of a small cell facility within 500 feet of a school in a Public and Community Facilities District. Resolution No. 2019-35, Mehretu Decl. Ex. 108 [120-121]. The basis for the City’s denial of Verizon’s Application was that it did not comply with the siting restrictions of the City’s comprehensive wireless ordinance because Verizon’s proposed small cell would be located within 500 feet of a school in a Public and Community Facilities District. Application, Dkt. 51-2, pp. 54-94; Resolution No. 2019-51, Mehretu Decl. Ex. 162 [587-592] at [588]. However, comments by residents are legally irrelevant to whether the City’s ordinance regulates based on radio frequency concerns. Nothing in the city’s comprehensive wireless ordinance purports to regulate facilities based on radio frequency where the facility complies with FCC regulations on such radio frequency emissions. Urgency Ordinance, Mehretu Decl. Ex. 107 [89]. Under bedrock separation of powers principles, a court is not permitted to speculate as to the motivation behind legislation, as Verizon has improperly invited the Court to do here. Golden State Transit Corp. v. City of Los Angeles, 686 F.2d 758, 759 (9th Cir. 1982); Wal-Mart Stores, Inc. v. City of Turlock, 483 F. Supp. 2d 987, 1009 (E.D. Cal. 2006); United States v. Constantine, 296 U.S. 287, 298–99 (1935).

    Comments by residents are legally irrelevant to whether the City’s ordinance regulates based on radio frequency concerns for another independent reason. At the substantial evidence phase, a court must “take applicable state and local regulations as we find them and evaluate the City decision’s evidentiary support (or lack thereof) relative to those regulations.” MetroPCS Inc. v. City & Cty of San Francisco, 400 F.3d 715,724 (9th Cir. 2005).
  • Verizon Reply: Here again, the cited exhibits (110-115) do not controvert this fact. The only articulated aesthetic objections were not related to schools, but to residential areas. Further, these were not specific objections, but merely general complaints, which do not constitute substantial evidence. The City’s legal arguments are answered in the accompanying brief. This fact is uncontroverted.

  • Claim No. 2: Under the holding of AT&T Wireless Services of California LLC v. City of Carlsbad, 308 F.Supp.2d 1148, 1159 (S.D. Cal. 2003), the City’s denial of Verizon Wireless’s Application was not “supported by substantial evidence contained in a written record” as required by 47 U.S.C. § 332(c)(7)(B) (iii) because the denial was impermissibly based on public fears of radio frequency emissions.
  • Verizon Fact No. 1: Facts 1 through 3 for Claim No. 1 are equally applicable to Claim No. 2 and are incorporated here by this reference.
  • Los Altos Disputed. The City’s denial of Verizon’s Application was based on its failure to comply with the siting restrictions contained in the City’s comprehensive wireless ordinance. Resolution No. 2019-35, Mehretu Decl. Ex. 108 [120-121]; Verizon’s Application, Dkt. 51-2, pp. 54-94; Resolution No. 2019-51, Mehretu Decl. Ex. 162 [587-592]. Opposing facts to “Facts 1 through 3 for Claim No. 1” are equally applicable to disputing “Claim No. 2” and are incorporated here by this reference to the extent the Court allows Verizon’s to incorporate facts from another section of this statement as it has attempted here.
  • Verizon Reply. The City is missing the point. The issue here is not whether the proposed facility would be within 500 feet of a school. The issue is whether the City adopted its school setback to achieve any specific aesthetic criterion, or whether it did so to protect children from the supposedly harmful effects of radio frequency emissions. The evidence is uncontroverted that it was the latter. Under the authorities cited, the City’s denial of the application is therefore unsupported by substantial evidence in the administrative record and must be vacated.

  • Claim No. 3: In the alternative, the City’s finding that Verizon Wireless failed to qualify for an exception under section 11.12.090 of the Ordinance because Verizon Wireless had not shown that denial of the Application violated either federal or state law is not supported by substantial evidence in the written record, in violation of 47 U.S.C. § 332(c)(7)(B) (iii).
  • Verizon Fact No. 1: As stated in its denial resolution (Exhibit Y), the City refused to apply the “material inhibition of service” test, set out in the “Small Cell Order,” which was affirmed in City of Portland v. United States, 969 F.3d 1020 (9th Cir. 2020). Thus, the City applied the wrong test. Findings made under the wrong test are irrelevant and do not constitute substantial evidence to support the City’s denial of the Application.
  • Los Altos Disputed. “Fact No. 1” is misleading and wrong for several reasons: The City did not employ the “wrong test” in its examination of the propriety of the exception under Section 11.12.090. Rather, the City Council properly analyzed whether Verizon had carried its burden to establish that an exception should apply by considering, among other things, whether Verizon had established a “significant gap” and whether, even if it had, its proposed facility was the least intrusive means, both of which remain the appropriate test here. City of Portland v. United States, 969 F.3d 1020, 1031- 1032, 1034 (9th Cir. 2020) (“Portland”), cert. denied sub nom. Portland, OR v. FCC, No. 20-1354, 2021 WL 2637868 (June 28, 2021); Sprint Telephony PCS, L.P. v. Cty. of San Diego, 543 F.3d 571, 580 (9th Cir. 2008) (“Sprint”). The City Council next concluded that Verizon failed to carry its burden and establish that its proposed facility was the “least intrusive means.” Mehretu Decl. Ex. 161 [499-500]. This conclusion was correct given that Verizon failed to establish that its proposed facility was the “least intrusive means” of achieving its legitimate wireless objectives in the City as a matter of law because Verizon’s proposed facility, as well as all of its proposed alternatives, violated the Wireless Ordinance’s siting restrictions. T- Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, 996, n. 10 (9th Cir. 2009) (“Anacortes”). More fundamentally, the City did not have the burden to establish why it was not granting an exception, nor did the City’s refusal to grant a discretionary exception need to be based on “substantial evidence.” MetroPCS at 723–24 (it is well established that the substantial evidence inquiry does not incorporate the substantive federal standards imposed by the Act, but instead requires a determination whether the denial of a facility is supported by substantial evidence in the context of some applicable local criterion); Newpath, No. SACV 06-550-JVS ANX, 2009 WL 9050819, at *19 n.17 (C.D. Cal. Dec. 23, 2009); Urgency Ordinance, Mehretu Decl. Ex. 107 [102].
  • Verizon Reply. As explained in the accompanying reply brief, the City’s new wireless ordinance required Verizon Wireless to make an evidentiary showing at the administrative level that the City’s denial of its application would violate either state or federal law. Verizon Wireless presented its evidence at that level. Thus, the City’s denial of an exception under its Ordinance was an evidentiary finding that must be supported by substantial evidence in the administrative record. If it is not, the City failed to comply with its own Ordinance. In this case, there can be no substantial evidence to support the City’s denial of an exception under federal law because the City was applying the wrong test. Thus, this fact is uncontroverted. Further, Verizon Wireless submitted evidence from the administrative record (Exhibit O, its Design Engineer’s Statement) explaining why a denial of the application here would “materially inhibit” its ability to provide service and, therefore, violate Section 332. Thus, the evidence in the administrative record is uncontroverted that, if the City had used the correct test, Verizon Wireless would have qualified for an exception under the ordinance.

  • Claim No. 3: In the alternative, the City’s finding that Verizon Wireless failed to qualify for an exception under section 11.12.090 of the Ordinance because Verizon Wireless had not shown that denial of the Application violated either federal or state law is not supported by substantial evidence in the written record, in violation of 47 U.S.C. § 332(c)(7)(B) (iii).
  • Verizon Fact No. 2: Fact No. 2: The City’s finding (applying the wrong test) that the “the evidence in the record did not show any significant gap” in coverage is controverted by the undisputed evidence in the written record. See Exhibit O (Design Engineer’s report); Exhibit X (12/17/2019 hearing transcript) at 22-33 (Design Engineer’s testimony).
  • Los Altos Disputed. As to “Fact No. 2” and “Fact No. 3,” the City has not had a full and fair opportunity to conduct expert discovery into Verizon’s claims about whether it has a “significant gap” or whether its proposed facility was the least intrusive means. Dkt. 39; Mehretu Decl. ¶ 78. As to this, the City has retained a highly experienced radio frequency engineer who will address why Verizon could achieve its legitimate wireless service goals in the City through technically feasible wireless facilities that – unlike Verizon’s proposed facility or any of those it presented as explored alternatives – comply with the City’s siting regulations. Mehretu Decl. ¶ 79; Mehretu Decl. Ex. 161 [499-500] (Councilmember Enander explained that Verizon failed to establish its proposed facility was the least intrusive means because “I’m further not persuaded that we have a comprehensive application in front of us that truly provides for a comparison of alternatives. What we are given is an alternative among small cell[s], not an alternative among different technologies and improvements in the use and utilization of spectrum, expansion of other resources and so on.”).
  • Verizon Reply. This has nothing to do with expert discovery in subsequent federal court litigation. The issue here is whether there is or is not sufficient evidence in the administrative record to controvert the evidence that had been submitted by Verizon Wireless at that level. The City is conceding here that there is none. Thus, these two facts (nos. 2 and 3) are uncontroverted.

  • Claim No. 3: In the alternative, the City’s finding that Verizon Wireless failed to qualify for an exception under section 11.12.090 of the Ordinance because Verizon Wireless had not shown that denial of the Application violated either federal or state law is not supported by substantial evidence in the written record, in violation of 47 U.S.C. § 332(c)(7)(B) (iii).
  • Verizon Fact No. 3: In the alternative, the City’s finding that Verizon Wireless failed to qualify for an exception under section 11.12.090 of the Ordinance because Verizon Wireless had not shown that denial of the Application violated either federal or state law is not supported by substantial evidence in the written record, in violation of 47 U.S.C. § 332(c)(7)(B) (iii).
  • Los Altos Disputed. [see previous entry]
  • Verizon Reply. [see previous entry]

  • Claim No. 3: In the alternative, the City’s finding that Verizon Wireless failed to qualify for an exception under section 11.12.090 of the Ordinance because Verizon Wireless had not shown that denial of the Application violated either federal or state law is not supported by substantial evidence in the written record, in violation of 47 U.S.C. § 332(c)(7)(B) (iii).
  • Verizon Fact No. 4: The City’s finding that its denial of the Application did not violate State law is not based on substantial evidence because California Public Utilities Code section 7901 requires any denial to be based on “site-specific aesthetic criteria,” Sprint PCS Assets, L.L.C. v. City of Palos Verdes Estates, 583 F.3d 716, 723-24 (9th Cir. 2009). Here, the City specifically asked Verizon Wireless to use the 155 Almond Avenue site (closer to the school). Then, no one ever raised any specific “size and placement” objection to that site. Therefore, no site-specific aesthetic criteria were ever identified, let alone applied. This finding is unsupported by substantial evidence in the written record.
  • Los Altos Disputed. As to “Fact No. 4” Prior to the City’s adoption of its comprehensive wireless ordinance, City staff suggested that Verizon consider moving its proposed site to one of its proposed alternatives further away from the original selected residential location specifically because residents who were concerned about the aesthetic impact the facility would have on their neighborhood. Mehretu Decl. Ex. 110 133]. Also, nothing in Sprint PCS Assets, L.L.C. v. City of Palos Verdes Estates, 583 F.3d 716, 723-24 (9th Cir. 2009) suggests that the City’s refusal to grant Verizon a discretionary exception was improper.
  • Verizon Reply. The City misunderstands the significance of exhibit 110. As explained in Verizon Wireless’s opening brief, Verizon Wireless originally proposed a site on Valencia Drive, further away from the high school. The City asked Verizon Wireless to relocate the proposed facility to 155 Almond Ave. (i.e., closer to the school) for aesthetic reasons, and Verizon Wireless agreed to do so. Exhibit 110 is part of the correspondence that led to that agreement. It therefore directly contradicts the position, advanced by the City here, that it adopted its school setback to achieve aesthetic objectives. Nothing about the exception procedure in the City’s ordinance is discretionary. It requires an evidentiary hearing followed by a finding by the City Council. To the extent that that finding was not supported by substantial evidence, the City violated its own Ordinance. Here, the City is effectively conceding that this is what happened. The inevitable result of this concession is that this fact (no. 4) is uncontroverted.

Dated: August 17, 2021

MACKENZIE & ALBRITTON LLP Mark L. Mosley Attorneys for Plaintiff GTE Mobilnet of California Limited Partnership, d/b/a Verizon Wireless