U.S. District Judge Mark Mastroianni for Massachusetts in Springfield denied Verizon’s motion for summary judgment against the town of Southwick, Massachusetts, on count I of its March 2021 complaint that the town’s denial of Verizon’s cell tower application wasn’t supported by substantial evidence in the written record, in violation of the Telecommunications Act (see 2306200040), said the judge’s electronic order Monday (docket 3:21-cv-10414). His order granted the town’s cross-motion for summary judgment against Verizon. The Southwick planning board’s denial was based on four general and “sometimes overlapping” categories -- aesthetic concerns, negative impact on property values, health and safety concerns and negative impact on recreational use of the property, said the order. If substantial evidence supports the board’s findings as to any one of those categories, its decision “must be affirmed under the substantial evidence standard,” it said. The court concludes, in light of the entire administrative record, that substantial evidence supports the board's findings regarding aesthetics, “rendering analysis of the other categories unnecessary,” said the order. The planning board denied Verizon’s application under two different sections of the town zoning bylaws governing aesthetics, “both of which must be satisfied,” it said. The board’s “discretionary judgment calls” about the aesthetics and visual impact of the proposed cell tower in relation to its unique residential location are supported by more than a scintilla of evidence, said the order. In particular, the planning board “considered objective evidence which supported its findings,” it said. The board “also considered the specific input from nearby residential property owners as to the visual impact on their homes and the neighborhood as a whole,” it said. Verizon hasn’t carried its burden of demonstrating that the planning board's decision isn’t supported by substantial evidence, said the order. The court will schedule an April 22 trial on Count II, which asserts an effective prohibition claim under the TCA, it said.
Appellant AT&T and Los Altos, California, seek an order dismissing AT&T’s appeal over the installation of small cells in the city’s rights-of-way, said their stipulated motion Friday (docket 22-16432) in the 9th U.S. Circuit Court of Appeals. “The parties have agreed that each side shall bear its own costs and fees on appeal,” said the motion. The appeal was docketed at the 9th Circuit in September 2022 but held in abeyance while the parties attempted several rounds of mediation. The dispute began in 2019 when AT&T applied to install 12 small cells on existing utility poles in the city’s rights-of-way. Los Altos responded to AT&T’s applications by changing its ordinances to prohibit such installations. AT&T then sued under Section 332 of the Telecommunications Act. Roughly 30 months after denying AT&T’s permit applications, and while the company's Section 332 claims were pending, Los Altos adopted new wireless regulations. At the city's urging, the district court then dismissed AT&T's claims as moot, leaving it to start over with new permit applications under the city's new wireless regulations. AT&T’s main issues on appeal included whether the district court erred in dismissing its claims as moot, including its claims that the city's 2019 permit denials weren’t supported by substantial evidence as the TCA required.
U.S. District Judge Terry Doughty for Western Louisiana in Monroe granted the Jan. 24 motion of plaintiff Travelers Casualty Co. to voluntarily dismiss its allegations of negligence per se against AT&T and its contractor Deviney Construction. Louisiana law doesn’t recognize an independent cause of action of negligence per se under Rule 41(a)(1)(A)(i), said Doughty’s signed order Tuesday (docket 1:24-cv-00022). The insurer seeks to recover nearly $530,000 for its client, Loboda Properties, for damage that AT&T and its contractor, Deviney Construction, allegedly caused to an underground electrical conduit near a commercial retail building that Loboda owns in Natchitoches, Louisiana (see 2401080004).
With Phase I discovery now complete in T-Mobile's cell tower dispute with the town of Oyster Bay, New York, the case's Phase II discovery schedule is in effect, while the parties continue holding settlement negotiations, said U.S. Magistrate Judge Anne Shields for Eastern New York in Central Islip in a text-only scheduling order Monday (docket 2:23-cv-05339). All Phase II fact discovery will be complete by July 3, and all discovery, including expert discovery, by Oct. 23, said the order. Any party seeking to make a dispositive motion shall initiate that process, consistent with the district judge's individual rules, by Nov. 25, it said. The judge instructed counsel to submit a joint letter by July 9 advising her as to the status of the case. T-Mobile alleges that Oyster Bay ran afoul of the Telecommunications Act by denying its application for a rear-yard variance to install a wireless telecom facility (see 2307140001). The town contends that T-Mobile’s claims violate the 10th Amendment “by commandeering local municipalities to issue zoning approvals and building permits,” despite local objections and compliance with state and local “substantive and procedural law” (see 2308090016).
AT&T contractor Deviney Construction “vehemently” denies allegations it damaged an underground electrical conduit while excavating near a commercial retail building that Loboda Properties owns in Natchitoches, Louisiana (see 2401080004), said Deviney’s answer Friday (docket 1:24-cv-00022) in U.S. District Court for Western Louisiana in Alexandria. Insurer Travelers Property Casualty Co. made the claim on behalf of Loboda, its client. The damages weren’t caused by Deviney’s “acts or omissions,” said the answer. Devoney “at all times” complied with the Louisiana Underground Utilities and Facilities Damage Prevention Law and relied “on the markings set forth by the utility companies operating utility lines in the subject area,” it said. Any injuries or damages the plaintiff sustained “were caused by intervening or superseding events, factors, occurrences, or conditions” that Deviney didn’t cause and for which it isn’t liable, it said. If it’s determined that the plaintiff indeed suffered damages, Deviney asserts that the plaintiff “failed to mitigate" its alleged damages or failed "to take reasonable steps to minimize or prevent the damages purportedly sustained in the subject incident as is required by law,” said the answer. In the “further alternative,” Deviney avers that if the plaintiff suffered any injuries, which are denied, those injuries were caused by the “acts, carelessness, inattention to duty, omissions, and/or conduct of third persons" for whose fault and/or negligence Deviney isn’t liable, it said.
U.S. Magistrate Judge Mustafa Kasubhai for Oregon in Eugene denied AT&T’s motion for reconsideration of his granting of summary judgment for Lane County, Oregon, and rejected the company's request that he approve its application that the county denied for a 150-foot cell tower on a five-acre parcel of land near Oregon’s Pacific Coast (see 2311200016), said the judge’s opinion and order Thursday (docket 6:22-cv-01635). In granting summary judgment for the county, the judge held that AT&T failed to exhaust its remedies under Oregon’s administrative land use process. AT&T’s motion for reconsideration “raises no new arguments and fails to demonstrate any mistake” in the court’s reasoning or other reason that justifies relief under Rule 60(b)(1) or (6), said the judge’s order.
Milwaukee’s Deer District seeks to intervene in Verizon’s lawsuit to force the city to approve its small-cells installations in time for July’s Republican National Convention “to preserve its private property right and leasehold interest in the Deer District Public Plaza,” said its brief Monday (docket 2:23-cv-01581) in U.S. District Court for Eastern Wisconsin in support of its motion to intervene. Verizon contends the small-cell installations are generally needed in the public plaza outside the Fiserv Forum to remedy existing coverage gaps but are “especially” needed to prepare for the crowds at the GOP convention (see 2311270034). But Milwaukee contends Verizon is trying to force it to allow the installation of small cells and poles on property that the city leases to the Deer District and doesn’t control (see 2312270003). Verizon seeks to “impair” the Deer District’s property rights by unlawfully applying laws that govern telecommunication providers’ rights with respect to public property, said the Deer District's brief. But the plaza is “encumbered” by the lease, “and as such, the leasehold is not public property,” it said. The court “must and should” allow the Deer District to intervene “to give it the opportunity to halt Verizon’s unlawful attempts to erode the Deer District’s rights,” it said.
U.S. Magistrate Judge James Wicks for Eastern New York in Central Islip recommends granting Crown Castle’s motion for summary judgment against Oyster Bay, New York, said his report Friday (docket 2:21-cv-06305). Crown Castle contends it’s entitled to summary judgment as a matter of law on its claims that Oyster unlawfully blocked its applications to install 23 small wireless facilities in public rights of way (see 2303130027). Viewing the facts in light most favorable to Oyster Bay, the magistrate judge finds that the town’s denial of Crown Castle’s applications wasn’t supported by substantial evidence on record, said his report. The denial also was an effective prohibition of wireless services under the Telecommunications Act, it said. Wicks also recommends the granting of summary judgment in Crown Castle’s favor for violations of the TCA’s sections 332 and 253 because the town’s application criteria and fees “had the effect of prohibiting the provision of services under the TCA,” said the report.
U.S. District Judge Stephanie Gallagher for Northern Maryland in Baltimore granted Ocean City, Maryland, and Crown Castle's request to extend the stay in their case by another 60 days, said her signed order Tuesday (docket 1:21-cv-01812). The parties asked for the 60-day extension as they pursue a final settlement in their case, which dates to July 2019 (see 2401170004). If the case isn’t jointly dismissed by the end of the 60-day stay extension, the parties will jointly report to the court on the status of the “conditions precedent to dismissal,” said Gallagher’s order. Crown Castle sued Ocean City to reverse what it alleged was the city’s unlawful denial of its application to install telecom services equipment in the public rights of way on three new streetlight poles. The city countersued in December 2021, alleging Crown Castle breached the requirements of a 2017 rights of use agreement with the municipality.
Barbara and Everett Knudson seek to intervene on the side of Walla Walla, Washington, in the city’s cell tower dispute with AT&T, said their motion Tuesday (docket 4:23-cv-05162) in U.S. District Court for Eastern Washington in Richland. AT&T’s Dec. 1 complaint seeks declaratory and injunctive relief challenging Walla Walla’s denial of its application for a conditional use permit to build, operate and maintain a 65-foot “faux tree” cell tower and accessory equipment on church property on the city’s east side (see 2312040002). The Knudsons own and live on property abutting the site proposed for the new cell tower and they own and operate a bed and breakfast located less than 500 feet from the site, said their motion. The Knudsons participated in the “underlying” AT&T application proceeding before the city’s hearing examiner and have a “significant interest” in defending the denial decision reached by the hearing examiner, it said. Their attorney is “authorized to state” that the city stipulates to their intervention, but AT&T has said it will oppose their motion, it said. The Knudsons should be granted intervention as a matter of right under Rule 24(a) of the Federal Rules of Civil Procedure or alternatively, permissive intervention under Rule 24(b), it said.