- Court: United States District Court, Central District of California
- Date published: Nov 2, 2021
- Citation: L. A. SMSA Ltd. P’ship v. City of Los Angeles [dba Verizon Wireless], 2:16-cv-04954-FLA (SKx) (C.D. Cal. Nov. 2, 2021)
- Link to Ruling by FERNANDO L. AENLLE-ROCHA, United States District Judge
- 2:16-cv-04954-FLA (SKx)
LOS ANGELES SMSA LIMITED PARTNERSHIP, a California limited partnership dba VERIZON WIRELESS Plaintiff, v. CITY OF LOS ANGELES, CALIFORNIA, Defendant.
FERNANDO L. AENLLE-ROCHA United States District Judge.
JUDGMENT AND ORDER
IT IS ORDERED, ADJUDGED, AND DECREED THAT judgment is entered in favor of Plaintiff Los Angeles SMSA Limited Partnership, a California limited liability company dba Verizon Wireless (“Plaintiff” or “Verizon”) and against Defendant City of Los Angeles (“Defendant” or “City”) on the second cause of action for violation of 47 U.S.C. § 332(c)(7)(B)(i)(II) and the fourth cause of action for petition for writ of mandate under California Code of Civil Procedure §1094.5 because the City’s Area Planning Commission’s December 3, 2018 written decision (“Denial Decision”) denying Verizon’s permit application, submitted to the City on or about July 27, 2017, to place, install, construct, and operate personal wireless service facilities at 2512 South Robertson Boulevard, Los Angeles, California (“2017 Application”), had the effect of prohibiting Verizon from providing personal wireless services in violation of 47 U.S.C. § 332(c)(7)(B)(i)(II), because the Denial Decision constituted a prejudicial abuse of the City’s discretion, and because the City failed to proceed in a manner required by law.
IT IS FURTHER ORDERED THAT the City’s Denial Decision regarding the 2017 Application is set aside, vacated, and rescinded.
IT IS FURTHER ORDERED THAT, because the City violated 47 U.S.C. § 332(c)(7)(B)(i)(II) and California Code of Civil Procedure § 1094.5, an injunction is issued requiring Defendant City to issue, on or before 10 days after entry of Judgment, all zoning and land use entitlement permits and approvals regarding the 2017 Application, including the Conditional Use Permit No. 2017-3013(CUW), issued by the City’s Associate Zoning Administrator David S. Weintraub on July 6, 2018, subject to the terms and conditions of approval attached as Exhibit 1 hereto and incorporated herein by this reference; and the categorical exemption from California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines (14 Cal. Code Regs. § 15000 et seq.) §§ 15303 and 15301 and City CEQA Guidelines-Class 3, Category 4. The City also shall timely file a notice of exemption related to the CEQA exemption, as required by law, on or before 10 days after entry of Judgment.
IT IS FURTHER ORDERED THAT the City shall timely review, comment upon, and process Verizon’s building permit and related construction permit application materials, and the City shall timely issue all such construction-related permits for the 2017 Application based on complete application materials submitted by Verizon to the City.
IT IS FURTHER ORDERED THAT the court shall retain jurisdiction to enforce this Judgment, under the court’s ancillary jurisdiction to enforce its own orders and decrees.
Costs are awarded to Plaintiff Verizon.
IT IS SO ORDERED.
CONDITIONS OF APPROVAL
[No. ZA-2017-3013 (CUW)]
- All other use, height and area regulations of the Municipal Code and all other applicable government/regulatory agencies shall be strictly complied with in the development and use of the property, except as such regulations are herein specifically varied or required.
- The use and development of the property shall be in substantial conformance with the plot plan submitted with the application and marked Exhibit “A, ” date stamped June 27, 2018, except as may be revised as a result of this action.
- The authorized use shall be conducted at all times with due regard for the character of the surrounding district, and the right is reserved to the Zoning Administrator to impose additional corrective Conditions, if, in the Administrator’s opinion, such Conditions are proven necessary for the protection of persons in the neighborhood or occupants of adjacent property.
- All graffiti on the site shall be removed or painted over to match the color of the surface to which it is applied within 24 hours of its occurrence.
- A copy of the first page of this grant and all Conditions and/or any subsequent appeal of this grant and its resultant Conditions and/or letters of clarification shall be printed on the building plans submitted to the Zoning Administrator and the Department of Building and Safety for purposes of having a building permit issued.
- a. The subject Wireless Telecommunications Facility (WTF) shall consist of the following:
- A maximum 52-foot high mono-eucalyptus, with a minimum of 172 branches and associated foliage (as detailed in Exhibit “A”, date stamped June 27, 2018.
- A maximum of twelve (12) panel antennas, 8-foot in height.
- Eighteen (18) new radios.
- Three (3) new wireless raycaps.
- Faux eucalyptus tree branches and “socks” containing antennas, radios and raycaps, with centerline at approximately 43 feet above the finished grade, shall significantly hide them from view from abutting and adjacent public rights-of way.
- b. The proposed 8-foot high, 10′-8″ x 13′-8,” lease area with CMU wall enclosure at grade shall contain the following:
- Two (2) wireless MCE equipment cabinets.
- One (1) new 15 kw/54 gallon diesel standby generator mounted on a new concrete slab. . One (1) new wireless GPS antenna. . One (1) new wireless meter. .The CMU enclosure shall have stucco finish, painted and textured to match the existing commercial building on site.
- c. The project site, the base of the mono-eucalyptus structure, the enclosed lease area, shall be landscaped and maintained in accordance with a landscape and irrigation plan, prepared by a licensed landscape architect, licensed architect, or licensed landscape contractor, to the satisfaction of the Department of City Planning, including, but not limited to, the following:
- (1) The perimeter of the proposed 8-foot high CMU wall shall be landscaped with live 20-gallon shrubs and bushes to grow and mature, and Morning Glory or Creeping Fig shall be planted along the wall so that the said wall is completely screened in a reasonable period of time (2 to 3 years), to match and/or complement the color of the mono-eucalyptus.
- (2) The perimeter of the mono-eucalyptus base shall be landscaped with a planter area fully covered with live 20-gallon shrubs and bushes to mature to a height of 3.5 to 6 feet to provide a green space all around the base and complement the subject faux tree.
- Prior to the issuance of a building permit, the project proponent shall submit a Structural Integrity Report from a professional engineer licensed in the State of California to the satisfaction of the Department of Building and Safety.
- All new utility lines that directly service the site shall be installed underground. If underground service is not currently available, then provisions shall be made for future underground service.
- The subject grant shall not be exercised in a manner to conflict with the potential co-location of other carriers on the subject site.
- The electronic equipment shall be installed and constructed with valid City of Los Angeles building permit(s).
- All applicable laws, regulations and standards of all local, state, and federal government agencies shall be observed.
- Radio Frequency. The facility shall not interfere with TV, radio, or cordless telephone reception or exceed RF limits established by the Federal Communications Commission.
- Should use of the granted right cease more than 90 days, the antennas and equipment shall be removed to the satisfaction of the Department of Building and Safety.
OBSERVANCE OF CONDITIONS – TIME LIMIT – LAPSE OF PRIVILEGES
All terms and conditions of the approval shall be fulfilled before the use may be established. The instant authorization is further conditional upon the privileges being utilized within three years after the effective date of approval and, if such privileges are not utilized or substantial physical construction work is not begun within said time and carried on diligently to completion, the authorization shall terminate and become void.
This authorization runs with the land. In the event the property is to be sold, leased, rented, or occupied by any person or corporation other than yourself, it is incumbent upon you to advise them regarding the conditions of this grant.
VIOLATIONS OF THESE CONDITIONS, A MISDEMEANOR
Section 12.29 of the Los Angeles Municipal Code provides:
“A variance, conditional use, adjustment, public benefit or other quasi-judicial approval, or any conditional approval granted by the Director, pursuant to the authority of this chapter shall become effective upon utilization of any portion of the privilege, and the owner and applicant shall immediately comply with its Conditions. The violation of any valid Condition imposed by the Director, Zoning Administrator, Area Planning Commission, City Planning
“Commission or City Council in connection with the granting of any action taken pursuant to the authority of this chapter, shall constitute a violation of this chapter and shall be subject to the same penalties as any other violation of this Code.
Every violation of this determination is punishable as a misdemeanor and shall be punishable by a fine of not more than $2, 500 or by imprisonment in the county jail for a period of not more than six months, or by both such fine and imprisonment.