12-07-2010 - Appeal HearingConditional Use Permit No. 10-10Appl - Item No 14 Attach 5 (2).pdfDavis Wright Tremaine'LLP
N.S.c.119KA3E 4.0S.ANCt1l..45 14EW ?OAK ppRTI.:1.) SiNN•.FR;ANCISCO
ZANN:ki. K. rOLLER $L'ITE 80'.0
D111 I:CT (415) 278-6536 505 MONTGOMERY STREE'T
suz.annetollc.r@drt..c.om SAN FKANCISCO, CA 94111
LAWYERS
5.14ANGIIA1 W.ASILIN.GTON, 1.".*:
TEL (41 5.) 276-6500
FAX (415) •76-6599
-6533 www.dw.t.com REcEivEt
November 8, 2010
Mayor Shelley Sanderson
Members of the City Council
City of West Covina
West Covina City Hall
1444 West Garvey Avenue
Room 208
West Covina, CA 91790
NOV - 8 2010
CITY CLERK'S OFFICE
CITY OF WEST COVINA
Re: Appeal of October 26, 2010 Planning Commission Revocation of Clearwire
Conditional Use Permit 10-10 (1030 East Merced Ave., West Covina, California)
Mayor Sanderson and Honorable Council Members:
As counsel to and on behalf of our client Clearwire, we hereby appeal the City of West
Covina Planning Commission's "rescission"1 of Clearwire's Conditional Use Permit 10-10
("CUP") and request that the City Council reinstate Conditional Use Permit 10-10.
As an initial matter, Clearwire reasserts and vigorously objects to the Planning
Commission's rescission for the reasons set forth in Clearwire's October 20, 2010 letter to the
Planning Commission, which is incorporated by reference and attached hereto as Attachment 1.
These reasons include:
The Planning Commission utilized.a mere procedural rule of parliamentary
procedure to sidestep the substantive requirements for revocation of a CUP set
forth in Municipal Code Section 26-253.
The Planning Commission's rescission is arbitrary and capricious, as there are no
proper grounds on which to base revocation of the CUP.
Clearwire's detrimental reliance on the Planning Commission's August 24, 2010
approval of the CUP prevents rescission of the properly issued CUP.
The approved facility is necessary to fill a significant gap in service and the site as
approved on August 24.(a rnonocross) fully conforms with applicable Design
Standards set forth in the Municipal Code.
The Planning Commission adopted Resolution No. 10-5390 at its October 26,2010 hearing "rescinding" its prior
approval of Clearwire's application for a conditional use permit.
DWT 1590914!.9v1 0088794-000001
Mayor Shelley Sanderson
Members of the City Conncil
November 8, 2010
Page 2
In addition to reasserting these arguments for purposes of this appeal and maintenance of
the formal record, Clearwire focuses its appeal on the following:
The Planning Commission's rescission of Clearwire's CUP and subsequent denial
of its application for the CUP will cause a significant gap in Clearwire's service.
Clearwire fully explored alternative site locations, none of which proved viable.
Clearwire has been willing to consider alternative designs.
The height of the facility complies with applicable Design Requirements and is
needed to maintain the site's functionality.
The notice of the proposed project was proper and effective.
The Planning Commission's rescission violates Clearwire's vested rights in its
approved Conditional Use Permit 10-10.
Background
On August 24, 2010, the Planning Commission voted unanimously to approve
Clearwire's application for a conditional use permit for a wireless communications facility at
1030 East Merced Ave. Clearwire selected 1030 East Merced Ave. for siting the approved
facility based on, among other factors, its existing network assets, West Covina's topography and
population characteristics, the property's zoning designation, and the willingness of the property
owner to lease space to Clearwire for the facility. After selecting the property, Clearwire worked
cooperatively with Planning Department staff to design a facility that integrates with surrounding
existing uses to the maximum extent feasible. Specifically, Clearwire proposed three design
options: a monopine, a monocypress and a monocross, the latter designed to be consistent with
the religious use of the property, i.e., the Bethel Christian Fellowship Church.2 Clearwire also
explored a monolithic design option at staffs request. After receiving feedback from Planning
Department staff, and in light of its favorable aesthetic qualities, Clearwire elected to proceed
with the application utilizing the monocross design. .
The Planning Commission approved Clearwire's application via Planning Commission
Resolution No. 10-5384 following a duly noticed public hearing on August 24, 2010. On
September 2, the landlord submitted an appeal of the Planning Commission's approval. The City
Council scheduled a public hearing for September 21, but the landlord withdrew the appeal prior
to the hearing date. Still, on September 21 and over Clearwire's objections, the City Connell
referred the matter to the Planning Commission for further hearing.
Prior to the Planning Commission hearing, the City Attorney's Office determined that
"the withdrawal of the appeal is effective, and therefore further review by the Planning
Commission or the City Council is not required."3 As a result, Clearwire continued to hold a
2 Photosimulations of the monocross and monopine designs are attached as Attachment 2 and 3, respectively.
3 October 12 Planning Department Staff Report.
DWT 15909149v1 0088794-000001
Mayor Shelley Sanderson
Members of the City Council
November 8, 201.0
Page 3
valid conditional use permit. Nevertheless, based on new public opposition to the site, the
Planning Commission decided to hold a hearing to consider rescinding the permit under Robert's
Rules of Order. This hearing was scheduled for October 26.
At the October 26 Planning Commission hearing, the Planning Commission received
testimony from Clearwire on, among other issues, Clearwire's detrimental reliance on the
Planning Commission's prior approval; the significant gap in service that the Planning
Commission's revocation would cause; the lack of any viable alternative locations; and the
proposed facility's full compliance with all applicable requirements of the Municipal Code.4
The Planning Commission also received testimony from the public regarding concerns
over RF emissions, potential declines in property values, the proposed facility's aesthetics, and
the absence of a statement regarding the height of the facility in the public notices prepared and
mailed to nearby property owners by the Planning Department.
After receiving testimony from Oearwire and the public, the Planning Commission held
a closed session with the City Attorney regarding potential litigation issues raised by the
Planning Commission's attempted rescission of Clearwire's conditional use permit. Upon
returning from the closed session, the Planning Commission voted to rescind its prior approval of
Clearwire's application. Immediately following this vote, the Planning Commission voted to
deny the application.
The approved facility is the least intrusive means of tilling a 'significant gap" in
service.
Section 332(c)(7) of the federal Communications Act requires that local jurisdictions "not
prohibit or have the effect of prohibiting the provision of personal wireless services ."5 Under
established Ninth Circuit case law, a prohibition of service occurs if (1) a provider is prevented
from filling a "significant gap in coverage"6 and (2) the manner in which the provider proposed
to fill the significant gap in service is the "least intrusive on the values that the denial sought to
serve."7
*4 Municipal Code § 26-685.989.
5 47 USC § 332(c)(7)(B)(i)(II).
6 The Ninth Circuit employs a two-part test to determine whether a prohibition of wireless service has occurred.
This two-part-test consists of determining whether a significant gap in coverage exists and whether the proposal is
the least intrusive means. of filling such gap. As discussed below -in more detail, Clearwire offered several proposed
designs to Planning Commission Staff (including a monopine) and, indeed, is willing to consider replacing the
approved facility design with a monopine design.
.MetroPCS v. City and County of San Francisco, 2006 U.S. Dist. LEXIS 43985 N.D. Cal., June 16, 2006) at 15.
DWT 15909149v1 0088794-000001
Mayor Shelley Sanderson
Members of the City Council
November 8, 2010
Page 4
A. The Planning Commission's revocation will result in a significant gap in
coverage.
A "significant gap in coverage" exists "where coverage holes are large or frequent in
number and size, and extend to the interior of buildings in urban areas or zo a significant number
of residences in well-populated areas Indeed, the Ninth Circuit recognized that a lack of
"reliable in-building coverage" spanning several city blocks amounts to a significant gap. In
doing so, the court noted the testimony of "witnesses qualified in the field" that "wireless carriers
consistently build their networks to an in-building standard" and other witnesses' testimony that
"current customers expect in-building coverage from their wireless carriers."9 Moreover, the
Ninth Circuit has expressly considered and rejected the proposition that no gap exists when
service from other providers is present.1°
Attached as Attachment 4 are maps depicting Clearwire's service coverage with and
without the proposed site It is clear from the map that without this site there would, in fact, be a
significant gap in coverage. The coverage hole consists of approximately 10 square blocks, and
Clearwire estimates that approximately 5,300 people reside within the proposed coverage area,
withen additionaLpossible4,500 "on-street" users.
Given that the Ninth Circuit has demonstrated a clear willingness to find the existence of
a significant gap when the gap is limited to in-building coverage, the complete absence of
coverage (in-building, outdoor or otherwise) for up to several thousand prospective customers in
the community surrounding the approved facility clearly amounts to a significant gap for
purposes of Ninth Circuit analysis.
B. The proposed facility is the least intrusive means of filling the significant gap.
Having proven the existence of a significant gap in coverage, the second and final prong
of the Ninth Circuit's test to determine an effective prohibition in service involves an assessment
of the specific proposal at issue as compared to other alternatives. Specifically, the "least
intrusive means" standard contemplates that a provider will have undertaken a "meaningful
comparison of alternative sites" in order to identify the "best solution for the community" in
8 MetroPCS v. City and County of San Francisco, 2006 U.S. Dist. LEXIS 43985 N.D. Cal., June 16, 2006) at 30
(emphasis added).
9 MetroPCS v. City and County of San Francisco, 2006 U.S. Dist. LEXIS 43985 (N.D. Cal., June 16, 2006) at 30.
1° At the October 26, 2010 Planning Commission hearing, several members of the public testified that they had no
problems with their current wireless service and that they were satisfied with, continuing to receive Internet service
from their existing providers. However, the Ninth Circuit has interpreted the concept of a "significant gap" as
meaning a gap in a particular provider's coverage and not whether coverage is available from another provider:
"Me elect to follow the district court's lead and formally adopt the First Circuit's rule that a significant gap in
service (and thus an effective prohibition of service) exists whenever a provider is prevented from filling a
significant gap in its own'service coverage. MetroPCS, Inc. v. City & County of San Francisco, 400 F.3d 715, 733
(9th Cir. Cal. 2005) (emphasis in original).
DWT 15909149v1 0088794-000001
Mayor Shelley Sanderson
Members of the City Council
November 8, 2010
Page 5
selecting a site for the proposed facility. '1 Once a carriers has demonstrated that its proposed
project represents the "least intrusive means" to close a significant gap in coverage, the burden
shifts to the City to show the existence of some potentially available and technologically feasible
alternatives ,12
First, there are no alternative locations for siting the proposed facility that do not involve
siting the facility on a residential property. In designing its network and selecting placement of
the proposed facility, Clearwire undertook an exhaustive search of the area at issue and found
only one other potential location for the facility—another church at 1600 East Merced Avenue.
While Clearwire actually preferred this location, the landlord is unwilling to lease space to
Clearwire for its facilities. In light of the exclusively residential uses surrounding the proposed
location, no alternative sites are available to serve the significant gap at issue.
Moreover, as discussed above, the site as approved is the "best solution for the
community." Indeed, the Planning Commission evaluated the facility's design, found that the
facility complies with the Zoning Code and thus approved the permit as consistent with the
public interest. In finding that the approved facility meets the design standards of the Zoning
Code, the Planning Commission expressly held:
The granting of a conditional use peimit will not adversely affect
the West Covina General Plan in that the proposed wireless facility
will provide additional service to current and future users in the
vicinity and that the wireless facility has been designed to blend in
with the surroundings;13
The proposed wireless facility is designed to be consistent with the
religious use on. the property and does not substantially alter the
character of the site;"I4 and
The proposed wireless facility is located and designed to blend
with the existing surroundings in that it is designed as a cross in
front of Christian (sic) religious facility. The associated equipment
cabinet and GPS antenna will be enclosed by a six-foot tall, block
wall to secure the equipment area and surrounded by shrubs to
screen the equipment are a.'5
IVIetroPCS v. City and County of San Francisco, 200611.S. Dist. LEXIS 43985 (N.D. Cal., June 16,2006) at 32-
" T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, 990 (9th Cir. 2009).
13 Resolution 10-5384 at 2.
14 Resolution 10-5384 at 2-3.
15 Resolution 10-5384 at 2.
DWT 15909149v1 0088794-000001
Mayor Shelley Sanderson
Members of the City Council
November 8, 2010
Page 6
The Planning Commission's support for the facility was not limited to generic findings,
however. Indeed, several Planning Commissioners praised the approved facility as a model
project:
Commissioner Holtz "I think this is a perfect fit for the church and
for the community."16
Commissioner Carrico "This is one of the few times that I have seen
something proposed that to me is a perfect
fit."17
Commissioner Sotelo "I cannot think of a better thing and more
proper thing to have than a cross at a
church."18
Commissioner Redholtz "1 had some concerns originally going into
this but I think they have been pretty well
addressed. So I am in favor of it."19
In addition to satisfying the integration and other aesthetic criteria set forth by the Zoning Code,
the proposed facility also complies with all applicable height, setback and other separation
requirements. Additionally, Clearwires proposed project has not changed in any respect since
the Planning Commission's initial consideration and approval on August 24. The proposed
design and scale remains exactly as approved, and none of the individuals offering public
testimony at the October 26 hearing raised any issues or aspects of the project that were not
considered at the August 24 hearing.
Notwithstanding these findings and Planning Department staffs preference for a
mon.ocross over certain of the alternative designs offered by Clearwire, and as Clearwire
confirmed at the October, 26 hearing, ClearWire has been and continues to be willing to change
the design of the site to a monopine, monocypress or any other reasonable and technologically
feasible design option that maintains the height of the facility.20 That said, Clearwire needs the
height to fill the significant gap in coverage, interconnect adjacent sites, and avoid interference
caused by nearby structures and vegetation present at lower heights. The Planning Commission,
however, did not appear to meaningfully consider the alternative design options presented at the
October 26 hearing. Moreover, contrary to the obligations established by the Ninth Circuit
requiring the City to provide a suitable alternative, neither the Planning Commission nor
16 Tr. at 22-3.
17 Tr. at 23.
18 Tr. at 24.
19 Tr. at 22.
20 See Attachment 2, 3 and 5 for sample photosimulations of alternative designs prepared by Clearwire for Planning
Department staff's consideration.
DWI 1590.9149v1 0088794-000001
Mayor Shelley Sanderson
Members of the City Council
November 8, 2010
Page 7
Planning Department staff has indicated that there is any preferable alternative design for the site
or any preferable alternative location. Thus, the facility is clearly the "least intrusive means" of
filling the significant gap in Clearwire's service.
III. The Planning Commission's revocation violates Clearwire's vested rights in its
Conditional Use Permit 10-10.
"The granting of a CUP with subsequent reliance by the permittee creates a fundamental
vested right 21 The Planning Commission invited Clearwire to submit evidence of the costs
incurred in the time period between the Planning Commission's initial approval and the City
Attorney's notification that Clearwire's CUP was subject to rescission (provided by letter on
October 13) as evidence of its "reliance," However, courts have explained that "the amount of
monetary damage is only one factor in the analysis" and that courts must also "consider the
effect of [the loss] in human terms and the importance of it to the individual in the life
situation."22 Thus, while Clearwire invested significant costs in developing its facility after the
Planning Commission's initial approval, the most significant effect of the Planning
Commission's decision to rescind the CUP is the loss of Clearwire's ability to provide service to
customers within the area of the significant gap. Clearwire plans to launch its statewide mobile
broadband network on January 1, 2011. Relying on the Planning Commission's August 24, 2010
approval, Clearwire "locked in" the design of its network for this part of West Covina, including
the configuration of other sites in relation to the one at hand. Without immediate action by the
City Council to reverse the Planning Commission's revocation, Clearwire will very likely have
lost the opportunity to bring the approved facility online in time for this statewide network
launch. This will not only result in a loss of revenues from customers that would have taken
service from Clearwire, but Clearwire is exposed to significant reputational harm from
perceptions of "spotty coverage." In launching anew wireless network, the damages associated
with this type of reputational harm are significant albeit resistant to an estimate of monetary
damages.
In light of the above, Clearwire urges the City Council to recognize Clearwire's vested
rights in the CUP and the significant harm that would result from revocation and, in turn,
reinstate the Planning Commission's original approval of the CUP.
IV. The Planning Department's public notice was valid.
At the October 26, 2010 hearing, the Planning Commission heard testimony from several
members of the public objecting to the initial public notice provided by the Planning Department
as inadequate. Prior to rescinding the approved CUP and denying Clearwixe's application, the
Planning Commission cited heavily to their own concerns with the initial public notice.
21 Malibu Mountains Recreation, Inc. v. County of Los Angeles, 67 Cal. App. 4111 359, 369 (Cal. 2" App. Dist. 1998).
22 Malibu Mountains Recreation, Inc. v. County of Los Angeles, 67 Cal. App. ti lh 359, 369 (Cal. 2nd App.. Dist, 1998).
DWT 15909149v1 0088794-000001
Mayor Shelley Sanderson
Members of the City Council
November 8, 2010
Page 8
Although the lack of proper notice is not cited as a basis for rescission in the Planning
Commission's resolution,. it did seem to be a matter of significant concern. It should not.
Municipal Code Section 26-206(d)(1) provides:
Notices of public hearing stating the type of application or nature
of proposal, general description of property under consideration,
and the time and place at which the public hearing is to be held
shall be given in• the following manner: [For Conditional Use
Permits] A notice that describes the proposed project and indicates
the length of the public review period (including the last date that a
request for a public hearing may be given to the planning
department) shall be mailed •to owners and occupants of
surrounding property....
The public notices prepared and mailed by the Planning Department regarding the August
24, 2010 hearing satisfy each ofthe public notice requirements a.bove.23
Aside from complying with the technical requirements of the Municipal Code governing
public notice, it is inapposite to argue that, the public notice was "too. vague" or "inadequate"
when, in fact, the initial public notice spurred at least one member of the public to appear and
submit testimony in opposition to the CUP at the August 24, 201.0 hearing. Moreover, Clearwire
understands that Planning Department staff received several inquiries regarding the project
following the initial public notice. •
Finally, recognizing that the public notice was proper and valid, the Planning
Commission's resolutions rescinding the CUP and denying Clearwire's application expressly
state that "the Planning Commission, upon giving the required notice, did on the 24th.day of
August, 2010, conduct a duly advertised public hearing as prescribed by law...."
In sum, the public notice prepared and mailed by the Planning Department complied with
all requirements in the Municipal Code governing such notices; was per se effective in light of
the notice causing at least one member of the public to appear and submit testimony on the CUP
application at the August 24 hearing; and is expressly recognized as lawful and valid in the
Planning Commission's October 26, 2010 resolutions rescinding the CUP arid denying
Clearwire's application, As a result, it is wholly improper for the Planning Commission to base
its revocation on allegations that the public notice was inadequate.
23 Attached as Attachment
DWT 15909149v1 0088794-000001
,Mayor Shelley Sanderson
Members of the City Council
November 8, 2010
Page 9
For the reasons stated above, Clearwire.asks the City Council to reinstate Clearwire's
Conditional Use Permit 10-10. •
Very truly yours,
Suzairne Toiler
Cc: Scott Nichols, Deputy City Attorney
Ron Garcia, Planning Associate
Enclosures: Clearwire's October 20, 2010 Letter to Planning Commission (Attachment 1)
Proposed Monocross Design Photosinnilations (Attachment 2)
Monopine Design Photosimulations (Attachment 3)
Coverage Maps (Attachment 4)
.Monocypress Design Photosiinulations (Attaohment 5)
Public Notice Prepared and Mailed by Planning Department Staff (Attachment
DWT 15909149v1 0088794-000001