Crown

Second Amended Petition Seeking Removal of Wireless Telecommunications Site and Such Other Relief as the Court May Grant Against Crown Castle Usa Inc., and the County of Los Angles, for Declaratory Relief, for Inverse Condemnation, for Trespass, for Nuisance and for Noncompliance by Crown Castle With Applicable Federal and State Historical and Environmental Standards and Related Injunctive Relief.

 

[Redacted], Petitioner

vs.

The County of Los Angeles, Respondent

 

Introduction and Facts Pertinent to All Causes of Actions

1. In the case at bar, defendant Crown Castle USA, Inc. (“Crown”) has installed a pole, pursuant to Permit, and later a multiple purpose telecommunications antenna, without Permit, but with a Zoning Conformance Review interpreted by the Writs division of the Court to allow antenna construction of a wireless facility in the front of Petitioner’s home at [redacted], within the County of Los Angeles. The highest goal of this lawsuit is the removal of the wireless facility installed by Crown, and compensation to the Petitioner under the causes of action stated in this SECOND AMENDED PETITION. The purpose of this suit continues to be the PETITIONER’S efforts to remove the wireless facility which has been installed at the front of her home. The original suit was focused on a Writ of Mandate against the County of Los Angeles, to stop issuance of a Permit for the antenna, the subject APPLICATION FOR LAND USE for said antenna having been made by Crown Castle USA in March of 2021. Though a Permit has not been issued, the County’s Demurrer was sustained in a matter which allowed a ZONING CONFORMANCE REVIEW document endow Crown Castle with the ability to construct the antenna. The Demurrer also challenged that Crown Castle USA, a Pennsylvania-formed corporation doing business in California was a necessary party to this suit and the Writ Department, Department 86, agreed, providing in its Order that the PETITIONER name Crown Castle USA as a defendant. This SECOND AMENDED PETITION names CROWN CASTLE USA as a defendant. Under applicable laws and regulations, many duties are independently owed by CROWN CASTLE USA, sometimes herein named for brevity as CROWN CASTLE or CROWN, in each such instance in reference to defendant CROWN CASTLE USA.

2. Although, as this matter is now prosecuted without seeking any WRIT OF MANDAMUS, for continuity, [redacted] continues in the use of the terms Petitioner and Petition, including because the usage is consistent with the causes of action for Declaratory Relief which are herein contained. This is a post-Demurrer filing which does not seek any Writ, which names Crown, the Applicant for the antenna Permit which was not approved (but construction allowed) as a defendant and states causes of action against that defendant. Petitioner does not have access to this purported authorization but understands there is some such document. The county then purported to grant a permit allowing installation of a wireless facilities on the previously approved pole. Exhibit A (Excerpted Wireless Facility “approval” and underlying Application).¹ No notice of the applications was given to nearby property owners or the public and no opportunity to contest at a hearing was provided for either the pole or the wireless facility.

3. Final permits for construction upon a real estate tract are often recorded with the County Recorder because the permitted activity thereafter “runs with the land.” See Los Angeles County Code of Ordinances (“LAC Code”) Sections 22.02.090, 22.222.260.A. If the permit is the vehicle for a right of occupancy or use to privately-owned real estate owned by a different private party the Permittee is effectively granted dominant tenement owner status. The real property owner now has a servitude and must bear additional duties and burdens. Under the county’s new practice, however, the newly burdened real property owner has no notice, even though a taking has occurred. Any subsequent purchaser of the servient tenement will also not have any notice since the new burdens and new dominant tenement are not recorded in the real property records.

4. Petitioner does not know whether any party – the county or Crown Castle – intends to affect a recording in the local deed records that would effectively create a new burden and dominant tenement within the underlying real property. Crown Castle’s application wrongly contends that it is the “owner” even though all it truly “owns” is the pole. This could mean there is no intent to follow historical and Planning practice of recording the permit in land records office. This may be of no concern to the county if the facility is in right way, but it is a major issue to the relevant private property owner (Petitioner) when the facility is on private property.

5. Planning culture and practice in California is grounded on an understanding that the owner of the real estate upon which a conditional use is allowed is ultimately held responsible for compliance with Permits for construction upon the involved property. This is why Permits “run with the land” and are typically recorded in the land records. The ability to track and attach compliance responsibility to the owner by Permit enforcement is foundational to City Planning.

6. This is a particular problem when the pole and wireless facility are on private land. The New “Ministerial” process and associated forms only require permission from the owner of an involved “structure” (in this case a pole), not the actual fee owner of the involved real estate. A nearby cell tower can significantly reduce property values. The landowner must now disclose its presence. The California Association of Realtors’ Property Sellers Questionnaire specifically requires that “cell towers” be listed on the disclosure form for sellers of real estate. California Association of Realtors’ Property Sellers Questionnaire , pp. 3-4 under K. Neighborhood. The U.S. Department of Housing and Urban Development (HUD) describes cell towers as “Hazards and Nuisances” that must be considered in any FHA appraisal.

7. The Petitioner seeks relief from the ongoing property taking and invasion. These actions were undertaken without notice or due process required by law. California statutes require notice to those who may be affected by the proposed land use, and an opportunity for hearing and then an option for Appeal. See Cal. Gov. code Secs. 65091-65095, 65905. Stated simply California state law requires notice, hearing and a right to appeal.

8. View Park is a listed Registered National Historic Place because it contains the largest number of African American owned homes encompassed within any one subdivision, based upon generations of Black history and Black home ownership. It is an “Historic District” as defined in Cal. Public Resources Code § 5020.1(h), an “Historic Resource as defined in LAC Code Section 22.14.080 – H and a “Qualified Historic Property” as defined in LAC Code Section 22.14.130 – M. Los Angeles County General Plan Goal C/NR 14 requires mitigation of impacts to historic resources, inter-jurisdictional collaboration, preservation of historic resources and it mandates that “proper notification and recovery processes are carried out for development on or near historic … resources.”

9. In California, those seeking to build visually incongruent structures have an obligation to consult with and consider the historical rights and obligations protected and enforced through the State of California’s agency for historical preservation, which, in company with similar federal programs, seeks to preserve what of our history can be preserved.

10. Because the View Park development and neighborhood is a National Historic Place, the Public should have received Notice of any Application for the two authorizations (the pole and then the wireless facility on the pole). In compliance with California policies and through the Office of Historical Preservation, and in compliance with the National Register of Historic Places including as in 36 CFR Part 800, both Crown Castle and the County should have reached out and evaluated, prior to the grant of Permit, the historical environmental consequences of the intended installations. They did not.

11. Crown had specific procedural and substantive obligations arising under federal, state and local law that it did not follow. In specific, but without limitation, the county violated the California Environmental Quality Act (“CEQA”), Cal. Pub. Res. Code § 21000 et seq. An environmental assessment of some sort was required.

12. The FCC has expressly held that local jurisdictions are not preempted from exercising any federal or state law mandated environmental or historic review processes. They are just constrained to do so within the applicable FCC Shot Clock period.² Similarly, no FCC rule or decision preempts any state law requirement for notice and hearing. Again, it is simply that any pre-decision hearing must occur sufficiently in advance of the shot-clock deadline to allow for a final decision and issuance of all required permits. The outcome is the same for historical properties.

13. This SECOND AMENDED PETITION has been drawn within the limits of the Order from Department 86 which essentially denied all Writ actions against the County. The Order from Department 86 summarized that: “Accordingly, remaining for resolution by an independent calendar court are: The second and fourth causes of action as well as paragraphs 28, 29, 30, 31, and 32 of the first cause of action.” This SECOND AMENDED PETITION is accordingly limited to theories of relief within the language of the FIRST AMENDED PETITION which survived the Demurrer. The Trespass and Nuisance aspects of the FIRST AMENDED PETITION, having been clearly preserved, have for simplicity of pleading, particularly in the instance of Demurrer, been assigned separate causes of action. Crown Castle is named as a defendant, and where the same or similar duties were owed by Crown as well as the County, they are stated here against Crown, only.

14. This SECOND CAUSE OF ACTION proceeds to protect the property interests of the PETITIONER including for Inverse Condemnation, for Declaratory Relief that the PETITIONER cannot lawfully be made the insurer of the wireless companies involved, in this instance Crown at the front of their operation at this site, with according prayers for relief for the removal of the wireless facility installed by Crown and for other relief in terms of lost value and aesthetic loss all as set forth herein and having financial value.

First Cause of Action – Declaratory Relief

15. Petitioner repeats the allegations of paragraphs 1 through 14.

16. Actions of defendants Crown Castle Inc. and County of Los Angeles have negatively impacted PETITIONER’s quiet enjoyment of her Real Property Interest by Trespass. Petitioner also asserts Trespass as an element of her Inverse Condemnation rights.

17. Petitioner believes and herein asserts that the wireless facility composed of a rectangular reinforced concrete foundation with pole and antenna and pole are on her land. The county contends the pole and wireless facility are in public right of way. Petitioner seeks a Declaratory Ruling determining ownership of the land underneath the pole and associated wireless facility including the concrete rectangular foundation and any wiring.³ Expert testimony anticipated.

18. The real property in issue was subdivided in the 1940s. Petitioner’s good faith inquiry indicates that the facility is placed in and on her real property and its presence causes the PETITIONER to experience aesthetic loss and market value impairment. Since acquirement of her ownership of her property, Petitioner has maintained the sidewalk and lawn strip of her property all the way to the pavement, including the area now occupied by the wireless facility.. She has not located any prior private easements that allow occupation by Crown Castle.

19. To the extent the wireless facility is on Petitioner’s property then Crown Castle mislead the county about its status and rights to occupy the land, thereby purposefully avoiding notice to Petitioner of the intent to impose new burdens on her land. Petitioner did not consent to the new use and burden. Crown Castle is trespassing, pursuant to an invalid and illegal purported grant of a real property interest by the county. On the basis that the Application for Permit was submitted on false data, namely that the facility would be constructed in a public right of way and not private property, the PETITIONER seeks a recognition by this Court that in its submission Crown Castle incorrectly asserted that the facility would be constructed on a public right of way, the PETITIONER seeks the Order of this Court requiring removal of the facility and reapplication to the County for the building Permit as required by Los Angeles County statute.

20. To the extent the wireless facility were in right of way, Petitioner would still be adversely affected by the new use on adjoining land. Her property has been devalued. The PETITIONER thereby suffers negative aesthetic consequences from the wireless facility including foundation, pole, and antenna, including rational continuous concern for heath. Radio-frequency radiation is flooding her land, her home and her body and the homes and bodies of her neighbors and household. As HUD notes, these towers are a Hazard and a Nuisance.

21. PETITIONER seeks declaratory relief that Crown Castle has unlawfully failed to comply with California and federal environmental and historic property evaluations. Installation of new utility poles and new wireless facilities on new utility poles are not categorically exempted from state or federal environmental and historic review.

22. The California Office of Historic Preservation advises that an historic review is required by the Applicant for prior to lawful commencement of the construction contemplated in Crown’s Application for Permit, which duty remains with such Applicants independent of the actions of a governmental entity. Petitioner contends that Crown Castle did not comply with required federal, state, and county Environmental and Historical standards and procedures. Petitioner seeks a declaratory ruling to this effect and an Order of this Court requiring that Crown Castle remove the offending wireless facility and pole and antenna until a proper permit is obtained using lawful procedures.

Second Cause of Action – Inverse Condemnation

23. Petitioner repeats the allegations of paragraphs 1 through 22.

24. This SECOND CAUSE OF ACTION resides only in claims against the County of Los Angeles. Whether the wireless facility impinges on Petitioner’s property is a fact and jury question which will require expert testimony. The inverse condemnation aspects of the SECOND CAUSE OF ACTION are based on Petitioner’s belief that the pole and structure is on her land in whole or in part. She has been deprived the beneficial use of a portion of her property, is suffering new burdens to which she did not consent and the value of her property has been diminished. She is presently obliged to watch a trespasser make good and valuable use of her land.

25. The county’s unlawful grant of permission to occupy and use the Petitioner’s land is a Taking under article I, section 19, subdivision (a) of the California Constitution. There was no eminent domain proceeding and no compensation.

26. Petitioner seeks declaratory and appropriate injunctive relief requiring the removal of the offending pole and the attached wireless facility. PETITIONER does not seek damages; she wants her property to be fully restored. In the alternative, if equitable relief grounded in Inverse Condemnation is not granted in the form of pole removal, PETITIONER seeks a financial award in an amount to be established through expert appraisal and related real estate experts.

Third Cause of Action – Failure of Crown Castle to Conduct Historical and Environmental Review

27. Petitioner repeats the allegations of paragraphs 1 through 25.

28. LA County Is out of the case., there is no attempt to revive that, this is focused on CROWN.

29. The California Office of Historic Preservation advises that an historic review is required by the Applicant for prior to lawful commencement of the construction contemplated in Crown’s Application for Permit, which duty remains with such Applicants independent of the actions of a governmental entity. Petitioner contends that Crown Castle did not comply with required federal, state, and county Environmental and Historical standards and procedures. Petitioner seeks a declaratory ruling to this effect and an Order of this Court requiring that Crown Castle remove the offending wireless facility and pole and antenna until a proper permit is obtained using lawful procedures.

30. Crown Castle has not complied with all National Environmental Quality Act (“NEPA”), 42 U.S.C. Ch. 55 obligations, in this case the applicable aspects of an effective National Programmatic Agreement, 47 C.F.R. Part 1, Appx. B., Part VII.B. See also 47 C.F.R. 1.320(b) [some “replacement” poles excluded from review under 1.320(b)(3) and “Collocations on buildings and other non-tower structures” excluded from review under 1.320(b)(4) but new poles and new facilities on new poles not listed as exclusions from review]. The utility pole and wireless facility in issue meet the definition of “Antenna” and “tower” under 47 C.F.R. 1.320(d). Thus, each is an “undertaking” for purposes of the FCC rule and the underlying federal environmental statute. For historic properties some “replacement poles” are excluded from required review under section 106 of the National Historic Preservation Act, as amended, 54 U.S.C. 306108, but others are not. The subsequent placement of a new antenna on that pole is not expressly excluded from evaluation under 47 C.F.R. §1.1320(b).

31. The current “National Programmatic Agreement” relating to Historic Properties” does address new wireless antennas “collocated” on utility poles. Only a specific limited class of antennas are excluded. 47 C.F.R. Part 1, Appx. B., Part VII.B. See also 47 C.F.R. 1.320 (c) (“Responsibilities of applicants. Applicants seeking Commission authorization for construction or modification of towers, collocation of antennas, or other undertakings shall take the steps mandated by, and comply with the requirements set forth in, Appendix C of this part, sections III-X, or any other applicable program alternative.”).

32. The utility pole and wireless facility in issue meet the definition of “Antenna” and “tower” under 47 C.F.R. 1.320(d). Thus, each is an “undertaking” for purposes of the rule and underlying statute, which sets the bar for Crown Castle’s compliance.

33. Crown Castle has not complied with the federal regulations which were in force at the time of Crown’s submission of its APPLICATION FOR LAND USE in early March of 2021. Because of this non-compliance, the Petitioner seeks that the antenna which was installed pursuant to that Application, as subsequently allowed through the ZCR, be removed from the site until actual compliance with the below cited California and federal standards has occurred. Next follows discussion of applicable regulation in comparison to the equipment which was described in the ZCR, out of a waterfall of words the cup of common sense reasoning and application here is that given the wattage of the antenna in the ZCR, and the height of the pole, CROWN has been required, all along, under the law in force when CROWN’s Application was filed, Crown was required to complete not just an Environmental Review, but rather the more thorough and detailed Environmental Assessment was required. Because this was not done, Petitioner seeks that the antenna be removed, or such other relief as the Court might in the alternative fashion. National Environmental Policy Act (NEPA) Rules Relevant to Crown Castle WTF applications in View Park follows.

34. FCC Rules for Title 47 CFR §1.1301 et seq.:

Telecommunication | PART 1—PRACTICE AND PROCEDURE | Subpart I — Procedures Implementing the National Environmental Policy Act of 1969; Relevant Subpart 1 – Procedures Implementing the National Environmental Policy Act of 1969 (rules effective through May 3, 2021); Current Subpart I – Procedures Implementing the National Environmental Policy Act of 1969 (rules effective on and after May 3, 2021). FCC Rule §1.1307 prior to May 3, 2021, it states: “Commission actions granting . . . licenses to transmit . . . require the preparation of an Environmental Assessment (EA) if exposure to levels of radiofrequency radiation [are] in excess of the [FCC] limits.”, followed by Table 1:

35. From §1.1307 Actions that may have a significant environmental effect, for which Environmental Assessments (EAs) must be prepared:

“§1.1307(b)(1) The appropriate exposure limits in §1.1310 and §2.1093 of this chapter are generally applicable to all facilities, operations and transmitters regulated by the Commission. However, a determination of compliance with the exposure limits in §1.1310 or §2.1093 of this chapter (routine environmental evaluation), and preparation of an EA if the limits are exceeded, is necessary only for facilities, operations and transmitters that fall into the categories listed in table 1, or those specified in paragraph (b)(2) of this section. All other facilities, operations and transmitters are categorically excluded from making such studies or preparing an EA, except as indicated in paragraphs (c) and (d) of this section. For purposes of table 1, building-mounted antennas means antennas mounted in or on a building structure that is occupied as a workplace or residence.”

36. From §1.1307 Actions that may have a significant environmental effect, for which Environmental Assessments (EAs) must be prepared:

“The term power in column 2 of table 1 refers to total operating power of the transmitting operation in question in terms of effective radiated power (ERP), equivalent isotropically radiated power (EIRP), or peak envelope power (PEP), as defined in §2.1 of this chapter. For the case of the Cellular Radiotelephone Service, subpart H of part 22 of this chapter; the Personal Communications Service, part 24 of this chapter and the Specialized Mobile Radio Service, part 90 of this chapter, the phrase total power of all channels in column 2 of table 1 means the sum of the ERP or EIRP of all co-located simultaneously operating transmitters owned and operated by a single licensee. When applying the criteria of table 1, radiation in all directions should be considered.”

From Table 1 — Transmitters, Facilities and Operations Subject to Routine Environmental Evaluation.

• “Service (title 47 CFR rule part): Cellular Radiotelephone Service (subpart H of part 22).
• Evaluation required if: Non-building-mounted antennas: height above ground level to lowest point of antenna < 10 meters and total power of all channels >1000 W ERP.”

The WTFs in View Park emit pulsed, data-modulated, radio-frequency electromagnetic Microwave Radiation (RF-EMR) above the FCC Limit for some distance from the antenna covering. There are three identified levels in NEPA analysis for WTFs:

1. Environmental Review: a self-policed letter written by the WTF applicant
2. Environmental Assessment: fact-based report, consistent with § 1.1307 Actions that may have a significant environmental effect, for which Environmental Assessments (EAs) must be prepared with substantial written evidence in the record, per U.S. Code § 322(c)(7)(B)(iii).
3. Environmental impact statement: a much larger, more detailed version of [2] for large construction projects.

For the WTFs in View Park, [2] Environmental Assessment applies due to FCC Rule §1.1307, Table 1, cited above. There is no substantial written evidence of Environmental Assessment in the Crown Castle application for the WTFs in View Park.

An inspection of the Crown Castle WTF application shows that its planned WTF violates FCC Regulation Table 1 of FCC Rule §1.1307 (the rule in effect prior to May 3, 2021) because the lowest edge of antenna shroud is 28-feet, 10″ off the ground and the maximum effective radiated power of the antenna listed (Galtronics EXTENT™ P6480i) is 14,361 Watts ERP.

The Crown Castle WTF application also is not consistent with key US Courts of Appeals, DC Cir. rulings in 2019 and 2021: Case No. 18-1129: United Keetoowah Band of Cherokee Indians v. Fed. Commc’ns Comm’n, 933 F.3d 728 (D.C. Cir. 2019); Case No. 20-1025: Envtl. Health Tr. v. Fed. Communications Comm’n, 9 F.4th 893 (D.C. Cir. 2021) The ruling in Case No. 18-1129 vacated portions of the FCC Order 18-30 Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, Second Report and Order :

“We conclude that it impossible on this record to credit the claim that small cell deregulation will ‘leave little to no environmental footprint.’ Order ¶ 41. The FCC anticipates that the needed ‘densification of small deployments over large geographic areas,’ id., could require 800,000 deployments by 2026, FCC, Declaratory Ruling & Third Report & Order, FCC 18-133 ¶ 126 (Sept. 26, 2018). The FCC failed to assess the harms that can attend deployments that do not require new construction, particularly the cumulative harms from densification. . . We conclude that the FCC fails to justify its conclusion that small cells ‘as a class’ and by their ‘nature’ are ‘inherently unlikely’ to trigger concerns. By ignoring the extent to which it had already streamlined review, the Commission overstated the burdens of review . . . The Commission fails to explain why the categorical exclusions in place did not already minimize unnecessary costs while preserving review for deployments with greater potential environmental impacts . . . We hold that the Order’s deregulation of small cells is arbitrary and capricious because its public-interest analysis did not meet the standard of reasoned decision making.”

37. The ruling in Case No. 18-1129 vacated portions of the Dec 2019, FCC Order 19-126 Targeted Changes to the Commission’s Rules Regarding Human Exposure to Radiofrequency Electromagnetic Fields. The DC Circuit judges ruled the following in Case 20-1025:

“. . . we grant the petitions in part and remand to the Commission to provide a reasoned explanation for its determination that its guidelines adequately protect against harmful effects of exposure to radio-frequency [microwave] radiation. It must, in particular,

(i) provide a reasoned explanation for its decision to retain its testing procedures for determining whether cell phones and other portable electronic devices comply with its guidelines,

(ii) address the impacts of RF radiation on children, the health implications of long-term exposure to RF radiation, the ubiquity of wireless devices, and other technological developments that have occurred since the Commission last updated its guidelines, and

(iii) address the impacts of RF radiation on the environment.”

A. Current Wireless Telecommunications Facility (WTF) dimensions The top of the finished WTF structure is 30-feet, 11″ 24 in. high Galtronics EXTENT™ P6480i canister antenna is on the top of the pole. The lowest edge of antenna shroud is 28-feet, 10″ off the ground, which is 8.8 meters and, therefore less than ten meters from the ground

B. 14,361 Watts ERP = Maximum Effective Radiated Power By Frequency for Galtronics

• For 1695–2180 MHz: 1,580 Watts ERP multiplied by three 120 ° sectors = 4,740 Watts ERP
• For 2180–2400 MHz: 1,780 Watts ERP multiplied by three 120 ° sectors = 5,340 Watts ERP
• For 3550–3700 MHz: 1,420 Watts ERP multiplied by three 120 ° sectors = 4,260 Watts ERP
• For 5150–5950 MHz: 7 Watts ERP multiplied by three 120 ° sectors =21 Watts ERP

C. Galtronics EXTENT™ P6480i Specs — web | pdf 10-port small Wireless Telecommunications Facilities (WTF) antenna, 360° Horizontal Beamwidth, fixed tilt.

• 2x ports for AWS/WCS Band 1695-2180 MHz
• 2x ports for AWS/WCS Band 2180-2400 MHz
• 4x ports for CBRS Band 3550-3700 MHz
• 2x ports for UNII Band 5150-5950 MHz

38. This boils down to the fact that the bottom of the antenna described in the ZCR is sufficiently low that given the wattage involved an Environmental Assessment is required of CROWN, absent that having been done, and until it is done, the antenna should be removed because CROWN has not taken federally required steps to assure the sites environmental safety.

39. Crown can solve this most easily by simply complying with applicable California and federal historical preservation and environmental law and the arguably minimalist reporting on environmental status, in which case this cause of action would be satisfied and least cost to all, including the Courts. But absent assurance of completion of these reviews, Petitioner has no choice but to seek and now seeks the Court’s order that Crown Castle comply with applicable historical preservation law and to the extent which still remains under Keetoowah after deletion of CEQA, environmental report.

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Fourth Cause of Action – Declaratory Ruling and Equitable Relief – Petitioner Cannot Be Forced to Be the Insurer for Otherwise Uninsured Telecom Industry Liabilities

40. The FOURTH CAUSE OF ACTION seeks a Declaratory Ruling that Petitioner cannot be lawfully forced to be the ultimate insurer for any tort liability that may flow from the installation and operation of the pole and attached wireless facility on her property. Petitioner also seeks equitable relief in the form of an order requiring that Petitioner be entirely immunized and held harmless from any liability for damage or injury caused by the pole and wireless facility.

41. The purported authorizations do not have any indication that Crown Castle (or the county) have adequate insurance to cover potential tort liability that may flow from the installation and operation of the pole and attached wireless facility. Unlike traditional Conditional Use Permits and even Ministerial/Type I permits there are no apparent conditions requiring Crown Castle to have and maintain adequate insurance. LAC Section 22.222.290. For all we know Crown Castle does not even maintain a commercial General Liability policy with reasonable policy limits. It is almost certain, however, that Crown Castle does not have and will maintain any sort of Pollution coverage by way of a special rider or supplement to a General Liability policy that would sufficiently insure Crown Castle, and by extension, the county and Petitioner, for any tort claims resulting from injuries incurred as a result of radiofrequency exposure.

42. The telecommunications industry has been and remains generally unable to obtain insurance coverage for injuries caused by the electromagnetic and radiofrequency radiation that its equipment generates. See for example, the article on this subject titled: Electromagnetic Field Insurance Policy Exclusion Are The Standard. Crown Castle is no exception. Its February 22, 2022 Form 10-K to the Securities and Exchange Commission leaves no doubt:

“Public perception of possible health risks associated with cellular or other wireless connectivity services and wireless technologies (such as 5G) may slow or diminish the growth of wireless companies and deployment of new wireless technologies, which may in turn slow or diminish our growth. In particular, negative public perception of, and regulations regarding, these perceived health risks may slow or diminish the market acceptance of wireless services and technologies. If a connection between radio frequency emissions and possible negative health effects were established, our operations, costs, or revenues may be materially and adversely affected. We currently do not maintain any significant insurance with respect to these matters. (emphasis added).

43. Where the County owns the underlying real estate, it stands as landlord to the telecom companies and on that separate basis is also potentially liable for the damages which telecom cannot insure. This will result in transfer of the industry’s massive uninsurable liability exposure to the County of Los Angeles as a result of the straight-forward application of well-established jurisprudential traditions statutes and case law grounded in Contracts, Landlord-Tenant (Doctrine of Fixtures), Joint Venture, Agency, and liability from concurring the results from independent tortfeasors). The county may want to consider this potential liability when preparing its own future annual financial reports and make sure that it is properly disclosed.

44. But where the underlying real property is in private hands, for example those of the Petitioner, then the private property owner is the landlord and the ultimate guarantor. The county and Crown Castle intruded on her land, placed the pole and then the wireless facility. When (not if) someone is injured from the placement or operation the injured party will look to Crown Castle, the county and the Petitioner and assert joint and several liability even though she has protested and tried to assert her objection since she first found out about these projects.

45. If, and to the extent, this Court does not require removal of the offending pole and attached wireless facility Petitioner requests a Declaratory Ruing that she cannot, ever, be held ultimately liable for the damage they will do or the harms they will cause despite the fact of their placement on her property. Crown Castle must be required to indemnify and then obtain and maintain a sufficient bond with reliable guarantors as necessary to fully indemnify and hold Petitioner harmless. This is required, indeed absolutely necessary, to ensure that justice is done.

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Fifth Cause of Action Against Crown Castle – Nuisance

The Petitioner seeks abatement of Nuisance here including as provided in California Code of Civil Procedure Sec. 731 in that the wireless telecommunications facility presents aesthetic and health detriments on a continuous basis. As stated in CCP 731:

“An action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by a nuisance, as defined in Section 3479 of the Civil Code, and by the judgment in that action the nuisance may be enjoined or abated as well as damages recovered therefor.”

Under the ruling of the California Supreme Court in March 19, 2019, T-Mobile W.LLC v. City of San Francisco, Case No. 20-cv-08139-SI (N.D. Cal. Mar. 19, 2021) aesthetic issues take many legitimate forms, including but not limited to the following:

[We] “disagree with PETITIONER’s contention that section 7901’s incommode clause limits their right to construct [telephone] lines only if the installed lines and equipment would obstruct the path of travel. Contrary to PETITIONER’s argument, the incommode clause need not be read so narrowly . . . “incommode” means “ ‘[t]o give inconvenience to; to give trouble to; to disturb or molest in the quiet enjoyment of something, or in the facility of acquisition.’ ” (T-Mobile West, supra, 3 Cal.App.5th at p. 351, citing Webster’s Dict. 1828—online ed., available at http://www.webstersdictionary1828.com/Dictionary/incommode [as of April 3, 2019].) For our purposes, it is sufficient to state that the meaning of incommode has not changed meaningfully since section 7901’s enactment. Obstructing the path of travel is one way that telephone lines could disturb or give inconvenience to public road use. But travel is not the sole use of public roads; other uses may be incommoded beyond the obstruction of travel. (T-Mobile West, at pp. 355-356.) For example, lines or equipment might generate noise, cause negative health consequences, or create safety concerns. All these impacts could disturb public road use or disturb its quiet enjoyment.

In judging whether an activity is a nuisance, the question of the legality of that activity is in issue, particularly where, as here, the illegality is directly contributive to the reasonable aesthetic problems, since it is certain that Crown Castle did not comply with applicable FCC regulation at the time when their Applications in this matter were filed, including the Application of March, 2021.

As described below, these Wireless Telecommunications Facilities (WTFs) in View Park were unlawfully installed because they were installed without compliance with the federal standards which were in force at the time of APPLICATION FOR LAND USE by CROWN.

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Requested Relief

Wherefore, premises considered, Petitioner respectfully requests the following relief from this Court:

A Declaratory Ruling determining ownership of the land underneath the pole and associated wireless facility at 5007 Escalon Avenue, View Park CA 90043, and specifically that Petitioner is the landowner, and if by fraction, what fraction.

A. A Declaration that permission from the landowner, or in the instance of the absence of such permission, that lawful acquisition of such permission by public means, is required before allowance of the use of the subject site at PETITIONER’s home by Crown Castle for the intended construction, and that, if permission being absent, the facility removed.

B. A Declaration the county and land use applicants must ensure and affirm that the underlying landowner has consented, or at least give notice to that landowner that a new use (and new burden) is being contemplated for that land.

C. That because federally required Environmental Assessment was not completed by CROWN, that the Court issue its Order for the removal of the antenna at the site or fashion other suitable relief such that it is not operational until such time as the required Environmental Assessment has been completed.

D. That because federally required historical assessment has not been completed by CROWN, and because View Park is a Nationally Recognized Historic Site, that the Court issue its Order for the removal of the antenna at the site or fashion other suitable relief such that it is not operational until such time as the required historical analysis has been completed, to the standards set forth in California and federal law

E.A Declaration that PETITIONER cannot be lawfully forced to be the ultimate insurer for any tort liability that may flow from the installation and operation of the pole and attached wireless facility on her property or on may be lawfully claimed, such as via title research, as her property. In furtherance of said Declaration, either an Order compelling disassembly and removal of the wireless facility at issue, or such alternative relief that the Court finds appropriate, and an Temporary Stay against broadcast from the antenna at the site until CROWN has either removed the wireless facility or provided independently funded bonding in sufficient amount to protect against cases filed against the PETITIONER for neurological injury and carcinogenic harm cases which may arise from the broadcast of microwave radiation from the CROWN-installed site at PETITIONER’s property, in this instance radiation broadcast exceeding the FCC level requiring Environmental Assessment, which so far as known to the PETITIONER was not done.

F. All legal fees and expert, appraiser fees, costs and expenses as authorized by California statute and Constitution for the Taking of PETITIONER’s property by Inverse Condemnation, including but not limited to the instances here where the Condemnation was by means of implementation trespassory and nuisance.

G. An abatement of the Nuisance of the presence of the wireless facility at the site by its removal and such other relief as the Court may thereupon fashion.

DATED: March 1, 2023

Respectfully submitted,

Harry V. Lehmann, SBN 77151
Law Offices of Harry V. Lehmann