ColfaxNet, LLC v. City of Colfax

Opinion

1 2 3 4 5 6 7 10 ----oo0oo---- 11 12 COLFAXNET LLC, No. 2:19-cv-02167 WBS CKD 13 Plaintiff, 14 v. MEMORANDUM AND ORDER RE: MOTION FOR SUMMARY JUDGMENT 16 Defendant. 17 18 ----oo0oo---- 19 Plaintiff ColfaxNet, LLC (“Plaintiff” or “ColfaxNet”), 20 brought this action against Defendant City of Colfax (“Defendant” 21 or “City”) alleging violations of the Federal Telecommunications 22 Act (“TCA”), 47 U.S.C. § 332(c)(7)(B) and 47 U.S.C. § 1455, and 23 its implementing regulations codified at 47 C.F.R. § 1600. 24 Plaintiff alleges that defendant: (1) did not act on plaintiff’s 25 request to modify an existing wireless communication facility 26 within a reasonable period of time, (2) failed to draft a written 27 denial of the plaintiff’s request, (3) failed to support its 28 denial with substantial evidence in the record, (4) improperly 1 considered radio frequency emissions in issuing the denial of 2 plaintiff’s request, (5) unlawfully prohibited plaintiff from 3 providing service, and (6) unlawfully denied plaintiff’s eligible 4 facilities request. (See generally Compl. (Docket No. 1).) 5 Plaintiff seeks declaratory and injunctive relief in 6 the form of a court order stating that the defendant violated the 7 TCA and mandating that the defendant issue the requisite permits 8 for plaintiff to proceed with the placement, construction, and/or 9 modification of the ColfaxNet wireless service facilities 10 proposed in the applications. (See generally Compl.) The 11 plaintiff’s Motion for Summary Judgment is now before the court.1 12 (“Mot. for Summ. J.”) (Docket No. 22.) 13 I. Factual and Procedural Background 14 ColfaxNet LLC is a small family-owned company that 15 provides communication services, including personal wireless 16 service and wireless broadband internet service, in Colfax and 17 its surrounding region, consistent with licenses granted by the 18 Federal Communications Commission (“FCC”). (Administrative 19 Record (“A.R.”) COC000231–32 (Docket No. 22-5, Ex. A).) To 20 provide wireless services, ColfaxNet must place, construct, 21 modify, maintain, and operate its network of towers, base 22 stations, antennas, and associated electronic equipment. (A.R. 23 COC000231–42.) ColfaxNet attaches wireless equipment to trees to 24 enable wireless communications between user equipment and the 25

26 1 Plaintiff has not moved for summary judgment on two counts in its complaint (Count 3: denial not based on substantial 27 evidence and Count 5: effective prohibition of wireless service.) (See Reply Br. of Pl. in Supp. of Mot. for Summ. J. at 2) (Docket 28 No. 30).) 1 ColfaxNet communications network. (Id.) 2 ColfaxNet maintains wireless service facilities on 3 Colfax Hill/Beacon Hill, including one on a small portion of an 4 8.5 acre parcel of land at Sierra Sky Court/ Drive in the City of 5 Colfax. (A.R. COC000227–30.) Colfax Hill/Beacon Hill serves as 6 the hub of ColfaxNet’s hub-and-spoke wireless system, and 7 ColfaxNet has been transmitting from this location for over 15 8 years. (A.R. COC000038–44.) A primary tree tower used by 9 ColfaxNet on Colfax Hill/ Beacon Hill is dead and at risk of 10 falling. (A.R. CFN0010.) ColfaxNet determined that a single 11 metal tower should replace that tree tower. (A.R. CFN0011.) 12 ColfaxNet initiated preliminary discussions regarding 13 replacement of the tower with the City’s Planning Director, Amy 14 Feagans, in February 2017. (A.R. CFN0001-2.) On or around 15 February 20, 2017, Ms. Feagans informed ColfaxNet that a 60-foot 16 metal tower could be approved administratively through an 17 Administrative Permit. (Id.) On February 21, 2017, Ms. Feagans 18 told ColfaxNet that a Conditional Use Permit would actually be 19 required and ColfaxNet submitted some materials. (Id.) On 20 August 24, 2017, Ms. Feagans emailed ColfaxNet and indicated that 21 ColfaxNet’s request would be considered a Conditional Use Permit 22 application and would “probably take at least 5-6 weeks to 23 process given the public hearing requirements and Council meeting 24 dates.” (A.R. CFN0093-105.) 25 On November 15, 2018, ColfaxNet filed its Request with 26 the City of Colfax for authorization to place, construct, or 27 modify wireless service facilities/structures, seeking to replace 28 the dead tree on which ColfaxNet wireless equipment was located 1 with a metal tower. (A.R. COC000231–42.) Ms. Feagans had 2 several discussions with the principal of ColfaxNet, Corey 3 Juchau, throughout December 2018 and January 2019 regarding the 4 problems that the City’s setback requirement in Municipal Code 5 Section 17.132.030 A-9 created for his proposed tower. (Decl. of 6 Amy Feagans in Opp’n. to Pl.’s Mot. for Summ J. at ¶ 8 (“Feagans 7 Decl.”) (Docket No. 28-7).) She advised him that that he would 8 either need to apply for a variance, which would require a public 9 hearing, or he would need to construct the tower at least 120 10 feet away from the property’s boundary lines. (Id.) 11 ColfaxNet alleges that on or around January 15, 2019, 12 Ms. Feagans informed them that the City had unilaterally 13 determined that the request should be classified as a more 14 significant request for a major variance rather than a 15 conditional use permit. (Compl. at ¶ 23.) Ms. Feagans states 16 Mr. Juchau responded by informing her that he wanted extra time 17 before his application was set for a hearing to explore whether 18 ColfaxNet had other potential options to its proposed sixty-foot 19 tower and wanted to discuss the matter with the owners of various 20 parcels to dissuade them from opposing his variance request. 21 (Feagans Decl. at ¶ 9.) Ms. Feagans also claims that in March 22 2019 Mr. Juchau mentioned that the proposed tower would actually 23 be 80 feet tall and that ColfaxNet vacillated as to the true 24 height of the proposed tower prior to the City Council hearing. 25 (Id. at ¶¶ 11–12.) 26 On April 24, 2019, the City of Colfax held a City 27 Council Meeting and Hearing during which ColfaxNet’s request was 28 discussed. (A.R. COC000001-3.) The City’s Mayor recused himself 1 and was not present for any portion of the hearing. (Feagans 2 Decl. at ¶ 14.) As a result, Councilmember Marnie Mendoza 3 presided over that City Council meeting relative to the ColfaxNet 4 Request as Mayor Pro Tem. (A.R. COC000001-3.) 5 During the meeting on April 24, 2019, many constituents 6 testified both for and against the construction of the ColfaxNet 7 tower. (Id.; A.R. CFN0056.) Several constituents and Mayor Pro 8 Tem Mendoza discussed the health hazards of radio frequency 9 emissions relative to the placement, construction, and/or 10 modification of the ColfaxNet wireless service facility. (Id.) 11 Mayor Pro Tem Mendoza distributed materials concerning the 12 purported health hazards of radio frequency emissions relative to 13 the placement of the wireless service facility. (A.R. CFN0052- 14 91.) 15 At that same meeting, the City Council voted for a 16 continuance for consideration of the Request. (A.R. COC000003.) 17 The minutes of the City Council hearing state that “Mayor Pro Tem 18 Mendoza, after hearing from many constituents, spent some time 19 gathering information regarding communication towers and safety 20 concerns” and that she felt that the City Council “needs more 21 time and information before making a decision that will balance 22 health, fire safety, and the services provided.” (Id.) 23 The City requested further information from ColfaxNet 24 on April 30, 2019. (A.R. COC000011.) ColfaxNet supplied the 25 requested information on May 4, 2019. (A.R. COC000033–37.) 26 Neighboring landowners and City officials asked ColfaxNet to 27 consider and discuss alternative tower options, and ColfaxNet 28 consented to postpone the matter to further these discussions 1 between the City Council meetings of May 22, 2019 and August 14, 2 2019. (Mot. for Summ. J. at 10.) The City requested additional 3 information from ColfaxNet on June 8, 2019 and September 10, 4 2019, which was provided by ColfaxNet on June 19, 2019 and 5 September 13, 2019, respectively. (A.R. COC000084-86, CFN0035– 6 39.) 7 At the City Council Meeting on September 25, 2019, 8 Mayor Pro Tem Mendoza and all the other Councilmembers verbally 9 voted to deny the ColfaxNet request for authorization to place, 10 construct or modify the ColfaxNet wireless service facility. 11 (A.R. COC000731–41.) Following that meeting, City Attorney 12 Alfred Cabral, Ms. Feagans, and City Manager Wes Heathcock began 13 drafting the written Findings and Order adopting the City 14 Council’s decision to deny ColfaxNet’s setback variance 15 application. (Feagans Decl. at ¶ 20.) They placed the matter on 16 the agenda to be formally adopted by the City Council at its 17 scheduled regular meeting on October 23, 2019. (Id.) Before 18 that meeting could occur, there were a number of wildfires in the 19 area which resulted in Pacific Gas & Electric (“PG & E”) public 20 safety shutdowns, so the City Council had to postpone the 21 meetings scheduled during this period because City Hall does not 22 have backup electricity generation capabilities. (Id.) 23 ColfaxNet filed this suit against the City on October 25, 2019. 24 (See generally Compl.) (Docket No. 1.) 25 The first regularly scheduled City Council meeting 26 following the PG & E public safety shutdowns did not take place 27 until November 13, 2019. (Id. at ¶ 22.) On that date, the City 28 Council approved the written Findings and Order prepared by Ms. 1 Feagans, Mr. Cabral, and Mr. Heathcock, and formally denied 2 ColfaxNet’s variance request by passing Resolution No. 50-2019. 3 (Id.) The City accordingly claims that it issued its written 4 denial of ColfaxNet’s application on November 13, 2019. (Supp. 5 Br. in Supp. of Opp’n. to Mot. for Summ. J. (“Supp. Opp’n.”) at 6 11 (Docket No. 42).) The City mailed the two-page written 7 Findings and Order to ColfaxNet on November 19, 2019. (A.R. 8 COC000004–5.) 9 II. Discussion 10 Summary judgment is proper “if the movant shows that 11 there is no genuine dispute as to any material fact and the 12 movant is entitled to judgment as a matter of law.” Fed. R. Civ. 13 P. 56(a). A material fact is one that could affect the outcome 14 of the suit, and a genuine issue is one that could permit a 15 reasonable jury to enter a verdict in the non-moving party’s 16 favor. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). 17 The party moving for summary judgment bears the initial 18 burden of establishing the absence of a genuine issue of material 19 fact and can satisfy this burden by presenting evidence that 20 negates an essential element of the non-moving party’s case. 21 Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). 22 Alternatively, the movant can demonstrate that the non-moving 23 party cannot provide evidence to support an essential element 24 upon which it will bear the burden of proof at trial. Id. 25 “Where the record taken as a whole could not lead a rational 26 trier of fact to find for the non-moving party, there is no 27 genuine issue for trial.” Matsuhita Elec. Indus. Co. v. Zenith 28 Radio Corp., 475 U.S. 574, 587 (1986). Any inferences drawn from 1 the underlying facts must, however, be viewed in the light most 2 favorable to the party opposing the motion. See id. 3 A. The Telecommunications Act of 1996 4 ColfaxNet alleges that the City violated multiple 5 provisions of the TCA. The TCA is “an omnibus overhaul of the 6 federal regulation of communications companies.” Sprint 7 Spectrum, L.P. v. Willoth, 176 F.3d 630, 637 (2d Cir. 1999). It 8 aims “to promote competition and reduce regulation in order to 9 secure lower prices and higher quality services for American 10 telecommunications consumers and encourage the rapid deployment 11 of new telecommunications technologies.” Telecommunications Act 12 of 1996, Pub. L. No. 104–104, Preamble., 110 Stat. 56. To 13 advance these twin goals, Congress enacted Section 332(c) of the 14 TCA, which provides for FCC regulation of wireless telephone 15 services. See T-Mobile NE LLC v. Town of Ramapo, 701 F. Supp. 2d 16 446, 456 (S.D.N.Y. Sept. 26, 2009). While the TCA generally 17 preserves the traditional authority of state and local 18 governments to regulate the location, construction, and 19 modification of wireless communications facilities like cell 20 phone towers, it imposes specific limitations on that authority. 21 See T-Mobile South, LLC v. City of Roswell, Ga., 574 U.S. 293, 22 300 (2015). It is these limitations that are at issue here. 23 1. Written Denial of Application 24 The TCA provides that “[a]ny decision by a state or 25 local government or instrumentality thereof to deny a request to 26 place, construct, or modify personal wireless service facilities 27 shall be in writing and supported by substantial evidence 28 contained in a written record.” 47 U.S.C. § 332(c)(7)(B)(iii). 1 “Any person adversely affected by any final action or failure to 2 act by a local government may, within 30 days after such action 3 or failure to act, commence an action in any court of competent 4 jurisdiction which shall hear and decide the action on an 5 expedited basis.” 47 U.S.C. § 332(c)(7)(B)(v). The relevant 6 final action is the issuance of the written notice of denial, not 7 the subsequent issuance of the reasons explaining the denial. 8 See City of Roswell, 574 U.S. at 305 n.4. Because an entity may 9 not be able to make a considered decision whether to seek 10 judicial review without knowing the reasons for the denial of its 11 application, and because a court cannot review the denial without 12 knowing the locality’s reasons, the locality must provide or make 13 available its written reasons at essentially the same time as it 14 communicates its denial. See id. at 304. 15 The parties agree that the City Council of Colfax 16 orally voted to deny the ColfaxNet request on September 25, 2019 17 and did not provide a written denial or statement of reasons at 18 that time. ColfaxNet argues that the City’s written denial, 19 filed after litigation had already commenced, should either be 20 regarded as a complete nullity, or as unreasonably delayed under 21 federal law.2 (Mot. for Summ. J. at 15.) The City contends that 22

23 2 ColfaxNet has not cited to any case law to show that a written denial issued after the initiation of litigation cannot 24 be considered, nor is the court aware of any such requirement. The cases cited by ColfaxNet in support of this proposition 25 actually refer to whether the denial of the request was based on substantial evidence. (See Mot. for Summ. J. at 14–17.) 26 Accordingly, the court will consider the City’s written denial, 27 but will also consider ColfaxNet’s argument that the denial was untimely. 28 1 it has satisfied the requirements of § 332(c)(7)(B)(iii) because 2 it approved the written denial of ColfaxNet’s application on 3 November 13, 2019 and sent its Findings and Order to ColfaxNet 4 six days later on November 19, 2019. (Supp. Opp’n. at 10; A.R. 5 COC000004–5.) The City argues that this its written denial was 6 therefore “essentially contemporaneous” with its communication of 7 the reasons for its denial under City of Roswell. (Supp. Opp’n. 8 at 10.)3 9 This case is readily distinguishable from City of 10 Roswell. In City of Roswell, a city council orally voted to deny 11 the plaintiff’s application, sent a formal written denial two 12 days afterwards, and then approved and published the detailed 13 written minutes of the City Council meeting 26 days later, 14 leaving the plaintiff only four days to seek judicial review. 15 See City of Roswell, 574 U.S. at 298. The Supreme Court held 16 that issuing detailed facts and findings 26 days after the 17 written denial was not essentially contemporaneous with the 18 denial itself and thus did not satisfy the statutory requirement. 19 See id. at 308. The Supreme Court was particularly concerned 20 about localities attempting to stymie or burden the judicial 21 review contemplated by the statute. See id. at 304. 22

23 3 The City also argues that the Supreme Court in City of Roswell held that detailed minutes of a board meeting which 24 contained a record of the board’s opinion was sufficient to constitute a written denial for the purpose of 47 U.S.C. § 25 332(c)(7)(B)(iii). See City of Roswell, 574 U.S. at 303. (Opp’n. to Mot. for Summ. J. at 24) (Docket No. 28.) Although this is 26 certainly true, defendant has never contended that it has such 27 detailed minutes or pointed to them in the record. Thus, this argument is irrelevant here. 28 1 In a recent case, GTE Mobilnet of California Ltd. 2 Partnership v. City of Watsonville, Case No. 16-cv-03987 NC, 2016 3 WL 9211684, at *1–2 (N. D. Cal. Nov. 1, 2016), the court held 4 that the City of Watsonville failed to issue a timely written 5 decision when it provided a written denial of plaintiff’s 6 application for a wireless communications facility one month 7 after the oral vote denying the facility at the City Council 8 meeting, and a day after the plaintiff had filed suit. Here, the 9 City of Colfax waited nearly two months after the City Council 10 vote to issue its written denial and Findings and Order. (See 11 Compl. at 1; A.R. COC000004–5.) 12 However, the City contends that the delay in issuing 13 its written decision and statement of reasons was due to the PG & 14 E public safety shutdowns because of the wildfires in the region. 15 (Feagans Decl. at ¶¶ 20–21.) The City Council had to postpone 16 the meetings scheduled during this period because of the public 17 safety shutdowns and was not able to hold a regularly scheduled 18 meeting until November 13, 2019. (Id. at ¶ 22.) At that first 19 regularly scheduled meeting following the public safety 20 shutdowns, the City Council formally adopted its September 25, 21 2019 findings on ColfaxNet’s application. (Id.) The City 22 contends that it issued its written decision that same day. 23 (Supp. Opp’n. at 11.) 24 Accordingly, after reviewing all the evidence presented 25 in the record, the court finds that there is a genuine issue of 26 material fact as to whether the City of Colfax’s written decision 27 in the Findings and Order document was untimely, and will deny 28 ColfaxNet summary judgment on this claim. 1 2. Acting on Request within Reasonable Period of Time 2 A state or local government “shall act on any request 3 for authorization to place, construct, or modify personal 4 wireless service facilities within a reasonable period of time 5 after the request is duly filed with such government or 6 instrumentality.” 47 U.S.C. § 332(c)(7)(B)(ii). The FCC 7 established that a presumptively reasonable period of time for 8 such applications is 150 days in its “Shot Clock Ruling”. See In 9 the Matter of Petition for Declaratory Ruling to Clarify 10 Provisions of Section 332(c)(7)(B) To Ensure Timely Siting 11 Review, 24 FCC Rcd. 13994 (Nov. 18, 2009) (“Shot Clock Ruling”). 12 The Supreme Court has upheld the FCC’s authority to interpret the 13 “reasonable period of time” provision and the reasonableness of 14 the 150 day deadline. See City of Arlington. v. Fed. Comm. 15 Comm’n, 569 U.S. 290, 307 (2013). 16 However, the FCC clarified that “the State or local 17 authority will have the opportunity, in any given case that comes 18 before a court to rebut the presumption that the established 19 timeframes are reasonable” based upon unique circumstances in 20 individual cases. See Shot Clock Ruling, 244 FCC Rcd. at 14010– 21 11, ¶¶ 42,44. The Shot Clock Ruling further warns that “rigid 22 application of this cutoff to cases where the parties are working 23 cooperatively toward a consensual resolution would be contrary to 24 both the public interest and Congressional intent.” See id. at 25 14013, ¶ 49. 26 In order to formally toll the 150 day period, the 27 authority must “notif[y] the applicant in writing that the 28 application is materially incomplete and specifically identif[y] 1 the missing documents or information that the applicant must 2 submit to render the application complete and the specific rule 3 or regulation creating this obligation.” 47 C.F.R. § 4 1.6003(d)(2)(i). The authority must notify the applicant on or 5 before the thirtieth day after the application was submitted. 6 See 47 C.F.R. § 1.6003(d)(2)(iii). However, the Shot Clock 7 Ruling also states that the 150 day deadline may be extended by 8 mutual consent of the personal wireless service provider and the 9 local government. See Shot Clock Ruling, 244 FCC Rcd. at 14013, 10 ¶ 49. 11 ColfaxNet argues that summary judgment should be 12 granted on its “reasonable period of time” claim because it filed 13 its application on November 15, 2018, (A.R. COC000231–42.), and 14 did not receive a final judgment on its application until 15 November 2019, well over 150 days after its application was 16 filed. (Mot. for Summ. J. at 19.) It contends that the City 17 should have acted by April 14, 2019 to comply with this 150 day 18 deadline. (See Supp. Reply Br. of Pl. ColfaxNet, LLC in Supp. of 19 Mot. for Summ. J. at 9 “Supp. Reply”) (Docket No. 44).) 20 ColfaxNet also notes that there was no written tolling agreement 21 between the parties and that the City never gave ColfaxNet 22 written notice, issued within 30 days of November 15, 2018, that 23 the application was materially incomplete and which detailed the 24 specific documents required. (Id.) 25 The City, on the other hand, argues that the delay in 26 addressing ColfaxNet’s application within the 150 day period was 27 largely due to ColfaxNet. (Opp’n. to Mot. for Summ. J. at 22.) 28 Planning Director Amy Feagans was in frequent communication with 1 ColfaxNet’s principal, Corey Juchau, throughout December 2018 and 2 January 2019. (Feagans Decl. at ¶ 4.) Ms. Feagans states that 3 in January 2019, Mr. Juchau informed her that he wanted extra 4 time before his application was set for a hearing to explore 5 whether ColfaxNet had other potential options to its proposed 6 sixty-foot tower and that he wanted to discuss the matter with 7 the owners of various parcels to dissuade them from opposing his 8 variance request. (Id. at ¶ 9.) The City agreed and did not 9 immediately place the application on the schedule for hearing. 10 (Id.) On March 7, 2019, Ms. Feagans requested a better example 11 of the proposed tower in advance of the City Council hearing. 12 (Id. at ¶ 10.) In response to Ms. Feagans email, Mr. Juchau 13 indicated that the proposed tower might actually be 80 feet tall 14 rather than 60 feet. (Id. at ¶ 11.) Ms. Feagans contends that 15 between March 12, 2019 and the date of the scheduled City Council 16 hearing on April 24, 2019, Mr. Juchau vacillated as to the height 17 of its proposed new tower and would not definitively state what 18 the height would be.4 (Id. at 12.) In sum, the City argues that 19 the 150 day timeline was not mandatory due to the unique 20 circumstances of this case and the postponements requested by 21 ColfaxNet. (Opp’n. to Mot. for Summ. J. at 22.) 22 After reviewing all the evidence in the record, the 23

24 4 ColfaxNet concedes that after the City continued the ColfaxNet request from the April 24, 2019 City Council meeting to 25 the May 22, 2019 meeting, ColfaxNet generally consented to continuances from May 22, 2019 to August 14, 2019 to explore 26 possible accommodations with objecting neighboring landowners and 27 to evaluate alternative options. (Mot. for Summ. J. at 19.) ColfaxNet claims that this pressure to consider alternative 28 arrangements was unreasonable and unlawful. (Id.) 1 court concludes that there is a genuine issue of material fact as 2 to whether the 150 day timeline was reasonable in light of the 3 circumstances of this case. Although there was no formal 4 agreement to extend the 150 day deadline, there is evidence from 5 which the trier of fact might reasonably draw the inference that 6 the parties mutually consented to postpone the review of the 7 application. Accordingly, the court will deny ColfaxNet’s motion 8 for summary judgment on this claim. 9 3. Eligible Facilities Request 10 The TCA states that a “local government may not deny, 11 and shall approve, any eligible facilities request for a 12 modification of an existing wireless tower or base station that 13 does not substantially change the physical dimensions of such 14 tower or base station.” 47 U.S.C. § 1455(a)(1). The term 15 “eligible facilities” request means any request for modification 16 of an existing wireless tower or base station that involves 17 hosting new transmission equipment, removal of transmission 18 equipment, or replacement of transmission equipment. See 47 19 U.S.C. § 1455(a)(2). A “modification” substantially changes the 20 physical dimensions of an eligible support structure, and 21 precludes an application from being deemed an eligible facilities 22 request, if it “increases the height of the tower by more than 23 10%”, 47 C.F.R. § 1.6100(b)(7)(i), or “entails any excavation or 24 deployment outside the current site.” 47 C.F.R. § 25 1.6100(B)(7)(iv). 26 The FCC has established a 60 day review period for 27 applications of this kind. See 47 C.F.R. § 1.6100(c)(2). In the 28 event that the reviewing state or local government fails to 1 approve or deny a request seeking approval within the timeframe 2 for review, the request shall be deemed granted. See 47 C.F.R. § 3 1.6100(c)(4). 4 The City first contends that ColfaxNet’s application 5 does not constitute an eligible facilities request because it is 6 an application to build a brand new structure where no structure 7 has existed before, not an application to modify an existing 8 structure. (Opp’n. to Mot. for Summ. J. at 19.) The City argues 9 that a tree does not constitute a “structure” which the FCC has 10 defined as “a pole, tower, base station, or other building, 11 whether or not it has an existing antenna facility, that is used 12 or to be used for the provision of personal wireless service.” 13 47 C.F.R. § 1.6002(m). ColfaxNet counters that the FCC license 14 issued to them indicates “Tree” as the Support Structure Type. 15 (A.R. CFN000185.) ColfaxNet argues that the tree to which 16 ColfaxNet’s equipment is attached is considered a “base station” 17 which is defined as “a structure . . . . at a fixed location that 18 enables Commission-licensed or authorized wireless communications 19 between user equipment and a communications network.” See 47 20 C.F.R. § 1.6100(b)(1). 21 ColfaxNet also cites to the City’s Findings and Order 22 in support of its contention that the tree should be considered a 23 base station, which states that “the variance application, if 24 approved, would substantially change the physical dimensions of 25 the tower or base station in which the applicant’s antennas are 26 presently located.” (A.R. CFN0049.) It argues that because the 27 tree is at a fixed location, holds existing antenna facilities 28 used for the provision of personal wireless service, and enables 1 authorized wireless communications between user equipment and a 2 communications network, it constitutes a base station as defined 3 by 47 C.F.R. § 1.6100(b)(1). 4 The City also contends that ColfaxNet did not make an 5 eligible facilities request because the modification of the tree 6 base station would require excavation or deployment outside the 7 current site. (Supp. Opp’n. at 7.) The City claims that the 8 area of the property on which ColfaxNet intends to construct its 9 tower is outside the current site on a level area above the dead 10 tree. (Decl. of Mark Epstein in Opp’n. to Pl.’s Mot. for Summ J. 11 at Ex. A, 57:18–61:11 (“Juchau Dep.”) (Docket No. 42-2). The 12 City states that because ColfaxNet’s plan calls for mounting the 13 tower on a concrete base, (Juchau Dep. at 73:23–74:13), it will 14 require excavating a previously untouched portion of the property 15 and pouring a concrete base to support the tower. (Supp. Opp’n. 16 at 7.) ColfaxNet maintains that it would not be excavating 17 beyond the current site because the tree’s roots stretch out at 18 least as wide as the base of the new structure. (See Supp. Reply 19 at 12.)5 20 5 The City also appears at times to argue that the 21 proposed tower does not constitute an eligible facilities request 22 because the modification will “increase the height of the structure by more than 10% or more than ten feet, whichever is 23 greater.” 47 C.F.R. § 1.6100(b)(7)(i). (See Opp’n. to Mot. for Summ. J. at 19.) The City does not raise this argument again in 24 their supplemental opposition. However, in the Colfax City Council Hearing minutes provided by the defendant, it clearly 25 states “the new tower would be no higher than the existing equipment, approximately 72 feet.” (See A.R. COC000001.) Since 26 the record indicates that the height of the new tower would be 27 the same as the tree tower currently in place, the court does not find that the ColfaxNet request constitutes a substantial change 28 in terms of height under 47 C.F.R. § 1.6100(b)(7)(i). 1 This court has no way of determining how far the tree’s 2 roots extend relative to the area that would be excavated to 3 remove the tree and build the new tower, given the evidence in 4 the record. Therefore, there is a genuine issue of material fact 5 as to whether there would be excavation or deployment outside the 6 current site constituting a substantial change to the structure 7 and thus whether ColfaxNet’s application actually constitutes an 8 “eligible facilities request”. Accordingly, the court will deny 9 plaintiff’s motion for summary judgment on this claim. 10 4. Consideration of Radio Frequency Emissions 11 Under the TCA, a state or local government cannot base 12 a decision to regulate a wireless facility on the “environmental 13 effects” of that facility’s radio frequency emissions if the 14 facility complies with FCC standards. See 47 U.S.C. § 15 332(c)(7)(B)(iv). Environmental effects within the meaning of 16 the provision include health concerns about the biological 17 effects of radio frequency radiation. See Freeman v. Burlington 18 Broadcasters, Inc., 204 F.3d 311, 325 (2d. Cir. 2000); Cellular 19 Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 494 n.3 (2d Cir. 20 1999). 21 It is undisputed that ColfaxNet’s proposed tower 22 complies with the relevant FCC regulations for radio frequency 23 emissions. The declarations of the City Council members in 24 opposition to the Motion for Summary Judgment state that they did 25 not consider radio frequency emissions when making their 26 decision. (Decl. of Sean Lomen in Opp’n to Pl.’s Mot. for Summ. 27 J. at ¶ 4 (Docket No. 28-2); Decl. of Kim Douglass in Opp’n to 28 Pl.’s Mot. for Summ. J. at ¶ 4 (Docket No. 28-3); Decl. of Marnie eee eI EE RIDE I EIN IE II EIDE OS ISIE! IE I IED ee

1 Mendoza in Opp’n to Pl.’s Mot. for Summ. J. at 7 4 (Docket No. 2 28-4); Decl. of Trinity Burruss in in Opp’n to Pl.’s Mot. for 3 Summ J. at FI 4(“Burruss Decl.”) (Docket No. 28-5).) The Findings 4 and Order adopted by the City Council in November 2019 also 5 | declares that “[t]he Council did not consider or factor into its 6 findings or decision the environmental effects of radio frequency 7 emissions. (A.R. COCO00004-5). Yet, during the City Council 8 meeting on April 24, 2019, Mayor Pro Tem Marnie Mendoza expressed 9 | concern about the potential health risks of radio frequency 10 emissions, (see A.R. CFN0056), discussed the research she had 11 performed as to these purported risks, (see id.), and actually 12 | distributed material about these risks. (See A.R. CFNO057-91.) ° 13 The court therefore concludes that there is a genuine issue of 14 material fact as to whether the City of Colfax based its decision 15 at least in part on the environmental effects of the proposed 16 | tower’s radio frequency emissions. Accordingly, the court will 17 deny plaintiff’s motion for summary judgment on this claim. 18 IT IS THEREFORE ORDERED that plaintiff’s motion for 19 summary judgment (Docket No. 22) be, and the same hereby is, 21 | Dated: November 5, 2020 bette 2d. □□ UNITED STATES DISTRICT JUDGE 23 24 25 26 6 Although ColfaxNet also alleges that Councilmember 27 Burruss expressed concerns about radio frequency emissions, it has not pointed to any evidence in the record to support this 28 | allegation. (Mot. for Summ. J. at 27.) 19