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

          ORDER

          RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE.

         This case involves efforts by a wireless telephone provider (T-Mobile) and a facilities infrastructure company (Crown Castle) to make modifications to an existing cellular telephone antenna installation in Douglas County, Colorado. Generally, there is a tension between wireless telephone companies' desire to expand coverage and local governments' will to maintain zoning, historic, and aesthetic standards. Congress has passed legislation, and the Federal Communications Commission (“FCC”) has issued regulations, providing mechanisms for the resolution of these competing interests. This dispute zeroes on whether or not the County properly denied Defendants' antenna modification application and the legal effect of communications (and silence) between them. Briefing on Defendants' objections to the recommendation (ECF No. 86) on the parties' cross-motions for summary judgment is incomplete. At present, the Court is concerned only with whether Defendants' 42 U.S.C. § 1983 Amended Counterclaim survives the County's motion to dismiss.

         I. BACKGROUND

         After the County initiated this action seeking declaratory relief, Defendants filed three amended counterclaims (ECF No. 28, at 13-30), from which the Court takes the following material allegations to be true for the purposes of the County's present motion to dismiss. (Motion, ECF No. 30.)

         A. Counterclaim Allegations

         T-Mobile provides telecommunications, commercial mobile radio, and personal and advanced wireless services to businesses and the general public. (Am. Countercl. ¶¶ 16, 19.) Crown Castle owns, operates, and maintains an infrastructure network, upon which its customers, like T-Mobile, have situated facilities that provide these wireless services. (Id. ¶ 14.) A wireless facility serves a particular geographic area and normally consists of several antennas, which may be attached to a tower, monopole, or other structure in public right-of-way or private utility easements, along with ancillary equipment necessary for the operation of that facility. (Id. at 20-21.) T-Mobile must periodically upgrade and modify its existing facilities, including through adding capacity, using new technologies, and adding new spectrum bands as authorized by the FCC. (Id. at 23.)

         Federal law permits, but limits, a local government's control over modifications to wireless facilities, including its ability to deny applications to construct those modifications. See 47 U.S.C. § 1455 (“Spectrum Act”); see also 47 U.S.C. § 332. “[A] State or local government may not deny, and shall approve, any eligible facilities request [(“EFR”)] for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.” 47 U.S.C. § 1455(a)(1). FCC regulations require a local government to approve EFR applications within 60 days of their submission (“shot clock”). 47 C.F.R. § 1.6100(c)(2).^[1] The 60-day period may only be tolled by mutual agreement between the local government and applicant or if the local government determines that the application is incomplete. 47 C.F.R. § 1.6100(c)(3). If an application is incomplete, the local government must provide written notice of that circumstance, including what information is missing, within 30 days of the application submission. 47 C.F.R. § 1.6100(c)(3)(i). When the applicant submits supplemental information, the shot clock resumes running, and the local government has 10 days to notify the applicant of any further deficiencies. 47 C.F.R. § 1.6100(c)(3)(ii)-(iii). If a local government fails to timely approve or deny an EFR, “the [EFR] shall be deemed granted. The deemed grant does not become effective until the applicant notifies the applicable reviewing authority in writing after the review period has expired (accounting for any tolling).” 47 C.F.R. § 1.6100(c)(4). Applicants subject to adverse decisions by local governments may bring claims related to this process in any court of competent jurisdiction within 30 days of such decision. 47 U.S.C. § 332(c)(7)(B)(5); 47 C.F.R. § 1.6100(c)(5).

         The County provides a form for submitting EFRs. (Am. Countercl. ¶ 32.) On April 27, 2017, Crown Castle, on behalf of T-Mobile, submitted an EFR application to the County to modify a communications tower located at 4545 E. Highway 86, Castle Rock, CO, 80104 (“Application”). (Id. ¶ 25.) That tower uses concealment panels to hide the antennas and associated equipment from view, reducing the visual impact of the tower, and the Application proposed to modify the tower by replacing and adding facilities that would grow the concealment shroud from 18 inches to 38 inches wide and from 10 feet to 11 feet high-increasing the height of the tower from 35 feet to 36 feet. (Id. ¶¶ 26-27.) Following the modification, the communications tower would still use concealment panels to hide the antennas and associated equipment from view, and no antennas or associated equipment would be visible following the modification. (Id. ¶¶ 30-31.) The Application-which expressly noted that it was an EFR as recognized by federal law and was not merely for pre-submittal review-included a cover letter, project narrative, photo simulation, preliminary drawings, structural analysis, an application fee, and letters of authorization from the tower and land owners. (Id. ¶¶ 33, 36-37.) The Application further explained why Defendants believed the modification satisfied the federal EFR requirements. (Id. ¶ 38.) On May 4, 2017, a planning technician with the County Department of Community Development (“Department”) confirmed that he received the EFR Application and sent Crown Castle a site-improvement plan to redline and return. (Id. ¶¶ 40-41.)^[2] On May 18, 2017, Crown Castle returned a redlined site improvement plan to Douglas County. (Id. ¶ 43.) Although it had submitted a complete application earlier, Defendants agreed to treat the 60-day shot clock as beginning on May 18, 2017, when the redlined site improvement plan was returned. (Id. ¶ 44.)

         On June 22, 2017, Defendants met with staff from the County to discuss the Application. (Id. ¶ 45.) On June 29, 2017, the County sent Defendants a document with the heading “Presubmittal Review” containing comments on the Application.^[3] (Id. ¶ 46.) The County specified that its “design standards for personal wireless communication facilities do not support a 38 [inches] canister or pole diameter for this site, ” because “[a]n expansion to 38 [inches] no longer provides a stealth design” and that the “original cell site was approved and constructed as a stealth utility pole.” (Id. ¶ 47.) The County suggested that “[s]ince the proposed design does not meet the approval standards, we recommend that you consider alternative designs or locations that can accommodate the increased antennas and other equipment in a stealth manner.” (Id.) The County went on: “In this instance, the monopole is directly visible to the adjoining state highway and several surrounding residential and agricultural properties. A stealth windmill or silo design could be an appropriate choice for this location.” (Id. at Ex. F, ECF No. 15-6, at 3.) While the document contains language indicating that Defendants could submit additional materials, the parties agree that the Application had been complete since May 18, 2017. (Id. ¶ 68.) Defendants maintain that this “Presubmittal Review” document was not a formal denial of the Application and an EFR. (Id. ¶ 48.)

         On July 11, 2017, Defendants and the County exchanged e-mails regarding alternative designs, and the County reiterated its concerns with the Application as submitted. (Id. ¶¶ 52-53.) On October 24, 2017, counsel for T-Mobile sent a letter to the County explaining its position that the County's conclusions concerning the Application were incorrect. Specifically, T-Mobile argued that the modifications comprehended by the Application would not “substantially change the existing structure” within the meaning of federal law. (Id. ¶ 55, Ex. G.) That letter also stated that “it constitutes T-Mobile's response to” the “Presubmittal Review, requesting additional information.” T-Mobile took the position that the “Presubmittal Review” was not a final decision, but it had instead tolled the 60-day shot clock, and “T-Mobile is therefore restarting the shot clock” with its provision of additional information. (Id. at Ex. G.)^[4]

         On November 7, 2017, fourteen days later, the County sent a letter to Defendants reiterating its claim that the submittal would result in a substantial modification of the tower, and stating that the shot clock did not apply because T-Mobile submitted a “Presubmittal Review Request, ” not a formal EFR application. (Id. ¶ 58.)^[5] This letter unequivocally iterates the County's position that Defendants' submission was not a valid EFR:

What had appeared as an innocuous unused pole with nothing on it (thus the “stealth” designation) would change into what is clearly some sort of wireless communications facility with a large cylinder located at the top. Exasperating this proposed new condition is the location in a highly visible and trafficked urbanized area. This would clearly ‘defeat the concealment elements' as contemplated in 47 C.F.R. § 1.40001(b)(7)(v) and is therefore a ‘substantial change' that does not qualify for approval under 47 U.S.C. § 1455(a)(1).

(ECF No. 28-8.) On November 14, 2017, Defendants responded, taking the position that it had submitted an EFR subject to the shot clock and the County's presubmittal review process was unlawful. (Id. ¶ 59.) On December 1, 2017, Defendant sent the County another letter, in which it submitted that the shot clock had run on November 18, 2017, Defendants' Application was “deemed granted” as a matter of law, and Defendants intended to commence construction. (Id. ¶ 60-61.) The County did not issue a permit for Defendants' modification. (Id. ¶ 62.)

         B. Procedural Posture

         On December 29, 2017, the County filed this action seeking declaratory relief, invoking the Court's federal question jurisdiction. (Compl., ECF No. 1.) Generally, the County asks this Court to confirm that it did, in fact, deny the Application; the Application is no longer subject to challenge; and that Defendants' letter notice that the Application is “deemed granted” is of no legal effect. (Compl. at 23-24.) On January 23, 2018, Defendants answered and filed three counterclaims. (See generally Am. Countercl.) Counterclaim One alleges a violation of 47 U.S.C. § 1455, specifically that the County misinterpreted the act and failed to approve a proposal that would not allegedly effect a substantial change. (Id. ¶¶ 105-21.) Counterclaim Three alleges an illegal prohibition by the County of Defendants' ability to provide wireless services. (Id. ¶¶ 126-29.) Counterclaim Two alleges, in toto:

         COUNT TWO

         Violation of 42 ...