Board of County Commissioners for Douglas County v. Crown Castle USA, Inc.

          REPORT AND RECOMMENDATION ON THE PARTIES' RESPECTIVE CROSS-MOTIONS FOR SUMMARY JUDGMENT (DEFENDANTS' MOTION DKT #61 AND PLAINTIFF'S MOTION DKT #62)

          N. REID NEUREITER, UNITED STATES MAGISTRATE JUDGE

         Now 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.

         The Court recommends that Douglas County's Motion for Summary Judgment (Dkt. #61) be GRANTED, and the Company Defendants' Motion for Summary Judgment (Dkt. 62) be DENIED.

         1. BACKGROUND

         This 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, ^[1] and the Federal Communications Commission (“FCC”) has issued implementing regulations, ^[2] 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.

         Douglas 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. ¶ 58.)^[3] 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. ¶ 3.)

         Douglas 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. ¶ 8.)

         In sum, 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.)

         The 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, ¶ 51.)

         On 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.)

         Count 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.

         Count 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.

         This 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.)

         The 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).

         On July 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. (Dkt. #85.)

         I heard one-and-a-half hours of argument on the cross-motions for summary judgment on February 4, 2019.

         2. LEGAL STANDARD FOR MOTION FOR SUMMARY JUDGMENT

         A 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 (1986).

         The 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. 1985).

         If the 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).

         3. ALL MATERIAL FACTS ARE UNDISPUTED

         Counsel 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.

         4. ISSUE OF ALLLEGED FAILURE BY DOUGLAS COUNTY TO DISCLOSE CERTAIN SITE IMPROVEMENT PLAN DOCUMENTS

         In 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.

         The 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.

         After 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 that.”

         The 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.

         5. UNDISPUTED FACTS

         This 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.)

         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.

         2. 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.

         3. 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.

         4. 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.

         5. 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).

         6. The 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. #63-1).

         7. As 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).

         8. 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.)

         9. The 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.)

         10. In the Spring of 2017, the Company Defendants began the process of seeking to modify the Tower.

         11. 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).)

         12. 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.)

         13. On 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 changes.

         14. The modifications proposed in the Company Defendants' EFR application would remedy a significant portion of the cellular and mobile device ...