United States District Court, D. Colorado
BOARD OF COUNTY COMMISSIONERS FOR DOUGLAS COUNTY, COLORADO, Plaintiff,
CROWN CASTLE USA, INC. and T-MOBILE WEST LLC, Defendants.
REPORT AND RECOMMENDATION ON THE PARTIES'
RESPECTIVE CROSS-MOTIONS FOR SUMMARY JUDGMENT
(DEFENDANTS' MOTION DKT #61 AND PLAINTIFF'S MOTION
REID NEUREITER, UNITED STATES MAGISTRATE JUDGE
before the Court is Plaintiff/Counter-Defendant the Board of
County Commissioners for Douglas County's
(“Plaintiff” or “Douglas County”)
Motion for Summary Judgment (Dkt. #62) and
Defendants/Counter-Plaintiffs Crown Castle USA, Inc.
(“Crown Castle”) and T-Mobile West LLC's
(“T-Mobile”, and collectively with Crown Castle,
“Defendants” or “Company Defendants”)
own Motion for Summary Judgment (Dkt. #61). The Court has
reviewed the motions, responses, replies, accompanying
statements of undisputed fact, and attached exhibits. In
addition, the Court heard extensive oral argument on the
motions on February 4, 2019. The Court has taken judicial
notice of the Court's file and has considered the
applicable Federal Rules of Civil Procedure and case law.
Court recommends that Douglas County's Motion for Summary
Judgment (Dkt. #61) be GRANTED, and the
Company Defendants' Motion for Summary Judgment (Dkt. 62)
case involves a desire by a wireless telephone provider
(T-Mobile) and a wireless facilities infrastructure company
(Crown Castle) to make modifications to an existing cellular
telephone antenna installation in Castle Rock, Douglas
County, Colorado. There is sometimes tension between the
desire of cellular or wireless telephone companies to make
bigger antennas and larger facilities to expand networks to
improve cellular telephone coverage, and local
governments' desire to maintain zoning, historic, or
esthetic restrictions on the size or design of wireless
antennae tower installations. Congress has passed
legislation,  and the Federal Communications Commission
(“FCC”) has issued implementing regulations,
seeking to provide expedited mechanisms for the resolution of
these competing interests. This case reflects the tension
that exists between local zoning authorities and cellular
providers, and involves application of the federal
legislation and regulations intended to address that tension.
County initiated this action for declaratory relief on
December 29, 2017. According to the Complaint (Dkt. #1), on
May 18, 2017, the Company Defendants submitted an Eligible
Facilities Request (“EFR”) application (the
“Application”) “to collocate and modify
wireless facilities on an existing support structure in
Douglas County.” (Id. ¶ 2.) The
pre-existing cellular facility structure allegedly had been
designed with “stealth” features to look like a
standard Douglas County utility pole, rather than an obvious
cellular tower. Douglas County says it denied the Application
on June 29, 2017, because the proposed modifications defeated
the “concealment elements” of the structure, as
they would more than double the width of the top ten or
eleven feet of the existing structure. (Id.
¶¶ 2, 4.) According to Douglas County, with the
proposed modifications, rather than looking like a utility
pole, the revised structure would look like a giant
marshmallow on a stick. (Id. ¶
The relevant FCC regulation excepts from the expedited
approval process proposed changes that defeat
“concealment elements” of a support structure.
Douglas County claims its determination was made within the
60-day period required by regulation-what the Company
Defendants call the “shot-clock.” (Id.
County alleges that rather than challenging the adverse
determination in court as T-Mobile was entitled to do, four
months later, on October 24, 2017, T-Mobile instead
“unilaterally declared the federal 60-day shot clock to
have restarted, notwithstanding the fact that the County had
denied the application months earlier.” (Id.
¶ 7.) Then, when Douglas County allegedly did not make
any further decision, T-Mobile declared that the
“Eligible Facilities Request was now deemed
granted” pursuant to a regulation that allows a request
to a local authority to be “deemed granted” if a
definitive decision on an application is not made within the
60-day “shot-clock” period. (Id. ¶
Douglas County's lawsuit requests a declaration that the
Company Defendants' assertion of a “deemed
granted” remedy is void, and that Company Defendants
waived any challenge to the County's June 29, 2017
determination by failing to timely seek relief.
Alternatively, even if the Company Defendants' May 18,
2017 application was still pending after Douglas County
issued its June 29, 2017 determination, Douglas County seeks
a ruling that the Company Defendants' request did not
qualify for approval as an EFR because it changed the stealth
characteristics of the original tower, and therefore is not
subject to a “deemed granted” remedy.
(Id. ¶ 9.)
Company Defendants answered the Complaint and filed
counterclaims. See Dkt. #28 (Answer and First
Amended Counterclaims). The Company Defendants contend that
Douglas County, in an effort to evade judicial review, never
actually denied the Application. (Id. at 13, ¶
2.) The Company Defendants allege that instead, on June 29,
2017, Douglas County returned a “Pre-submittal Review,
” which contained staff comments on the Application and
requested additional materials. (Id. at 19-20,
¶¶ 46, 49.) The Company Defendants argue that
Douglas County's response was not a denial and, because
it requested more information, necessarily tolled the
“shot-clock”-the limited time within which
Douglas County had to issue a decision. (Id. at 20,
October 24, 2017, T-Mobile's lawyer sent a letter to
Douglas County “explaining that, under federal law, the
Application does not substantially change the existing
tower.” The letter declared that submission of this
additional information (the October 24 letter) restarted the
“shot-clock.” (Id. ¶¶ 55-56.)
Under the Company Defendants' formulation, the restarted
“shot-clock” expired on November 18, 2017. And
so, on December 1, 2017, without any new decision by Douglas
County approving or denying the application, the Company
Defendants sent Douglas County a letter asserting that the
Application was “deemed granted” by operation of
law, and announcing they intended to commence construction.
(Id. at 21, ¶¶ 60-61.)
One of the Company Defendants' Counterclaims alleges that
Douglas County violated Section 6409(a) (codified at 47
U.S.C. § 1455) and its associated regulation, by denying
and failing to approve an EFR for a modification of an
existing wireless tower that does not substantially change
the physical dimensions of such tower or base station.
According to the Company Defendants, Douglas County's
failure to approve the Application violates federal law, and
therefore should be deemed granted.
Two of the Company Defendants' Counterclaims alleges that
Section 6409 creates a federal right because it requires
State and local governments to approve a wireless
carrier's valid EFR application. According to the Company
Defendants, by failing to approve the Application, Douglas
County has deprived the Company Defendants of a right,
privilege, or immunity secured by the Constitution and laws
of the United States (specifically the Spectrum Act), in
violation of 42 U.S.C. § 1983.
Court previously issued a Report and Recommendation
recommending that the Company Defendants' Section 1983
claim be dismissed (see Dkt #72) and therefore will
not address the substance of the Section 1983 claim any
further. That issue is now before Judge Moore on the Company
Defendants' objection. (See Dkt #77.)
Company Defendants' third counterclaim alleges a
violation of 47 U.S.C. §332(c)(7)(B)(i)(II). That
statutory provision provides that the regulation of the
placement, construction, and modification of personal
wireless service facilities by any State or local government
or instrumentality thereof shall not prohibit or have the
effect of prohibiting the provision of personal wireless
services. The Company Defendants assert that Douglas
County's alleged failure to act on the Company
Defendants' application effectively prohibits the
provision of personal wireless services, in violation of 47
U.S.C. § 332(c)(7)(B)(i)(II).
7, 2018, the Company Defendants filed a Motion for Judgment
on the Pleadings (Dkt #49). That motion was fully briefed and
argued, but was then effectively superseded by the
Parties' respective motions for summary judgment. Finding
the issues raised in the Motion for Judgment on the Pleadings
were better addressed via the Parties' summary judgment
motions, on December 19, 2018, I recommended that the
Defendant's Motion for Judgment on the Pleadings be
denied without prejudice to the legal arguments raised
therein. (Dkt. #73). No. one objected to that recommendation
and Judge Moore accepted and adopted it on February 19, 2019.
one-and-a-half hours of argument on the cross-motions for
summary judgment on February 4, 2019.
LEGAL STANDARD FOR MOTION FOR SUMMARY JUDGMENT
motion for summary judgment serves the purpose of testing
whether a trial is required. Heideman v. S. Salt Lake
City, 348 F.3d 1182, 1185 (10th Cir. 2003). A court
shall grant summary judgment if the pleadings, depositions,
answers to interrogatories, admissions, or affidavits show
there is no genuine issue of material fact, and the moving
party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c). A fact is material if it might affect the
outcome of the suit under the governing substantive law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
moving party bears the initial responsibility of providing to
the court the factual basis for its motion. Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). “The moving
party may carry its initial burden either by producing
affirmative evidence negating an essential element of the
nonmoving party's claim, or by showing that the nonmoving
party does not have enough evidence to carry its burden of
persuasion at trial.” Trainor v. Apollo Metal
Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002).
Only admissible evidence may be considered when ruling on a
motion for summary judgment. World of Sleep, Inc. v.
La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir.
movant properly supports a motion for summary judgment, the
non-moving party has the burden of showing there are issues
of material fact to be determined. Celotex, 477 U.S.
at 322. That is, the opposing party may not rest on the
allegations contained in his complaint, but must respond with
specific facts showing a genuine factual issue for trial.
Fed.R.Civ.P. 56(e); Scott v. Harris, 550 U.S. 372,
380 (2007) (“The mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material
fact.”); see also Hysten v. Burlington N. &
Santa Fe Ry., 296 F.3d 1177, 1180 (10th Cir. 2002).
These specific facts may be shown “‘by any of the
kinds of evidentiary materials listed in Rule 56(c), except
the mere pleadings themselves.'” Pietrowski v.
Town of Dibble, 134 F.3d 1006, 1008 (10th Cir. 1998)
(quoting Celotex, 477 U.S. at 324). “[T]he
content of summary judgment evidence must be generally
admissible and . . . if that evidence is presented in the
form of an affidavit, the Rules of Civil Procedure
specifically require a certain type of admissibility, i.e.,
the evidence must be based on personal knowledge.”
Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1122
(10th Cir. 2005). “The court views the record and draws
all inferences in the light most favorable to the non-moving
party.” Pepsi-Cola Bottling Co. of Pittsburg, Inc.
v. Pepsico, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005).
ALL MATERIAL FACTS ARE UNDISPUTED
for both parties were asked at oral argument whether there
were any disputed material facts that conceivably
might prevent the grant of summary judgment and require a
trial. Counsel for both sides were in agreement that the
facts are undisputed and a trial would serve no meaningful
purpose. It is a question only of applying the law to those
undisputed facts. In other words, both sides concurred that
this litigation should be resolved on the briefs,
accompanying affidavits, documents, and exhibits, without the
need for any trial testimony.
ISSUE OF ALLLEGED FAILURE BY DOUGLAS COUNTY TO DISCLOSE
CERTAIN SITE IMPROVEMENT PLAN DOCUMENTS
their Opposition to Douglas County's Motion for Summary
Judgment, the Company Defendants repeatedly complain that
Douglas County references Site Improvement Plan
(“SIP”) documents drafted or submitted near the
time of the 2001-2002 initial application to build the Tower.
The Company Defendants insist in their written materials that
“Plaintiff failed to produce these exhibits at any
point during discovery. Accordingly, pursuant to Rule
37(c)(1), the County ‘is not allowed to use that
information . . . to supply evidence on a motion, at a
hearing, or at trial . . . '.” (Dkt. #69 at 4.)
Douglas County had included the SIP documents to support
Douglas County's position that the Tower was originally
designed, approved, and constructed as a “stealth
facility, ” meaning it was designed to look like
something other than an obvious cellular tower.
Company Defendants argued in their papers that these SIP
documents were never disclosed. But, in fact, they were
disclosed as part of Douglas County's initial disclosures
in March of 2018. In those initial disclosures, Douglas
County stated its intention to rely on the 2001 and 2002 SIP
files approving construction of the Tower. The 2001 and 2002
SIP files were records available to the public (and the
Company Defendants) for inspection.
receiving the Rule 26 disclosures in March of 2018 showing
Douglas County's intention to rely on the original SIP
documents, the Company Defendants never asked for copies of
those materials and, after disclosures were made, no
documents were exchanged by either party because of the
assumption that both sides either possessed or had access to
all relevant documents. In addition, at oral argument, the
Company Defendants' counsel effectively withdrew the
argument that the Court should not consider the SIP
documents, saying “I don't think that this Court
needs to resolve that question, and I'm not pushing
Court finds that Douglas County did properly and timely
disclose its intention to rely on the original SIP documents
from 2001 and 2002. The Company Defendants never requested
copies from Douglas County and never independently sought to
obtain copies even though the documents were public records.
Therefore, it is appropriate for the Court to consider the
original SIP documents in connection with the cross-motions
for summary judgment.
recitation of undisputed facts comes from both Douglas
County's or the Company Defendants' respective
statements of undisputed material facts or the replies
thereto, as well as associated supporting documents. (Dkt.
#61-1; Dkt. #69-1; Dkt. #70; Dkt. #80-1.)
Crown Castle owns, operates, and maintains a network of
infrastructure for the deployment of telecommunications
facilities. T-Mobile provides “personal wireless
services” and “wireless services” as those
terms are defined under federal law.
T-Mobile operates wireless telecommunications facilities on a
structure located in Douglas County, at 4545 E. Highway 86,
Castle Rock, Colorado (the “Tower”). The Tower is
a 35-foot tall pole, 18 inches in diameter.
T-Mobile wants to update and modernize the equipment in the
Tower. There are gaps in T-Mobile's coverage area for
certain radiofrequency bands in the vicinity of the Tower,
spanning an area that contains upwards of 6, 500 residents.
As a result, without updated and expanding its Tower
facility, T-Mobile is not able to provide coverage and
capacity to a significant area of Castle Rock, Colorado.
Douglas County, for its part, has attempted to balance the
need for the provision of wireless telecommunications
services with the desire to preserve its unique visual
environment by seeking to locate wireless communications
facilities in a manner that blends with the character of the
surrounding environment, and consistent with the requirements
of federal law. Accordingly, the County has enacted a Zoning
Resolution that includes design standards applicable to
personal wireless communications facilities.
Section 27A of Douglas County's Zoning Resolution
includes certain “stealth” requirements for
personal wireless communications facilities, providing:
“The construction of stealth or faux structures such as
windmills, silos and light standards specifically to
camouflage personal wireless communication facilities are
encouraged . . . All stealth or faux structures proposed
shall emulate architectural style, height, bulk, mass,
material, and color and (sic) determined by the County. . . .
Personal wireless communication facilities located on highly
visible sites will only be allowed when appropriately
camouflaged.” Zoning Resolution §27A, p.2
§2702A (Dkt. #63-2).
Site Improvement Plan or “SIP” allowing for the
initial construction of the Tower included concealment
elements in the structure's design-ensuring that it would
look like a utility pole. The stealth design satisfied a
substantial portion of the approval criteria applicable to
such facilities as set out in Douglas County's zoning
resolution. During the approval process prior to the 2002
construction of the Tower, the Site Improvement Plan
submitted to the County by the constructor's consultant
specified that the facility would be constructed “with
a stealth design to match existing utility poles in the
area.” Affidavit of Jeanette Bare at ¶15-17 (Dkt.
explained in the 2001 SIP documentation, “The proposed
cell site meets the second order of preference by being
concealed within a new 35' stealth canister pole and an
adjoining shed. The pole will be of similar height as the
existing utility poles on the property, and will be
painted brown to further blend in with these existing
poles. The shed will be painted to match the existing
house on the property. Given these features, the cell site
will blend in with its surroundings.” (Dkt. #63-4)
(emphasis added). The same 2001 document also states that
“The proposed cell site will be very compatible with
the existing structures on the property. As mentioned
earlier, the antennas will be concealed within a canister
pole of similar height and color as the existing utility
poles on the property.” (Id.) (emphasis
added). The document continues, “The proposed cell site
is to be disguised in an architecturally appropriate manner
with the surrounding structures on the property. The antennas
will be concealed within a canister pole of similar
height and color as the existing utility poles on the
property.” (Id.) (emphasis added).
Consistent with Douglas County's approval of the Tower as
a “stealth” facility similar in shape and height
to existing Douglas County utility poles is a March 15, 2002
letter from the Douglas County Planning staff asking that the
applicant “verify that the proposed stealth utility
pole is 18” or less in diameter, and add a note to that
effect.” (Dkt #63-5 at 4.)
Company Defendants' own 2017 application to modify the
Tower concedes that the existing facility includes
“stealth” design components, stating the
“Facility is a large concealed structure on the
Southwest corner of the RTD Parking lot. All components of
the wireless facility are inside the structure.” (Dkt.
#63-8 at 6.)
the Spring of 2017, the Company Defendants began the process
of seeking to modify the Tower.
Douglas County has an abbreviated application process for
telecommunications applicants proposing collocation, removal,
or replacement of transmission equipment on existing approved
cellular towers pursuant to section 6409(a). Such an
application is called an Eligible Facilities Request or
“EFR, ” and the process for the abbreviated
application process is called the “EFR Process.”
(Dkt. #63-1 (Bare Aff. ¶¶ 20-21).)
Applicants pursuing the EFR Process are required to submit a
completed EFR application form; a letter of authorization
from the land owner or tower owner; scaled plans reflecting
the new facility; a description of how the proposed
modification will comply with stealth requirements, including
a photo simulation, for existing structures that were
previously approved with stealth elements or conditions and
the payment of the applicable fee. Douglas County Application
for Eligible Facilities Request. (Dkt. #28-3.)
April 27, 2017, Douglas County received an EFR application
for the Tower from Brian Hess at Crown Castle, submitted on
behalf of T-Mobile, including a cover letter with narrative
describing the proposal. EFR Request by Crown Castle and
T-Mobile dated April 27, 2017. (Dkt. #63-8.) On the same
date, Crown Castle separately sent construction plans and the
required application fee and asked for a copy of the original
site improvement plan so the Company Defendants could prepare
and submit scaled, redlined plans reflecting the proposed
modifications proposed in the Company Defendants' EFR
application would remedy a significant portion of the
cellular and mobile device ...