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1 CRAIG LABADIE (State Bar No. 101681) CITY ATTORNEY
2 CITY OF ALBANY
3 T. PETER PIERCE (Bar No. 160408) ierceTirwulaw.com
4 AVID-G. ALDERSON (Bar No. 231597) tbaileviirwulaw.com
5 RICHARDS, WATSON & GERSHON A Professional Corporation
6 44 u Street, Suite 3800 San Francisco, California 94104-4811
7 Telephone: 415.421.8484 Facsimile: 415.421.8486
8 Attorneys for Defendant
9 City of Albany
:AO 2•45,
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17 Plaintiff,
18 VS.
19 CITY OF ALBANY,
20 Defendant.
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GTE MOBILNET OF CALIFORNIA LIMITED PARTNERSHIP, a California limited partnership d/b/a VERIZON WIREL SS„
Case No. CV 11-06155 LB
ANSWER TO COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTION
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA,
OAKLAND DIVISION
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Defendant., Cit\ of Albany (the ( ror itselfand no other defCndant.
answers the Complaint for Declaratory Judgment and Injunction the -Complaii t
filed on Decemher 7, 2011, by admitting, denying, and alleging as follows:
1. .1 - he Complaint speahs for itself. The pro\ isions added to the
Co m m tilik: mion. \,:tILl 1(mo tI einei \ • I I C 1 I \ ;Rimifl ed.
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2. The United States Constitution and the federal Communications Act
2 speak for themselves. The Wireless Communication Facilities Ordinance and related
3 definitions collectively the "Ordinance"), codified in the Albany Municipal Code,
4 speak Ibr themselves. Except as specifically admitted, the City denies the allegations
5 contained in paragraph 2 of the Complaint.
3. The Ordinance speaks for itself. Except as specifically admitted, the
City denies the allegations contained in paragraph 3 of the Complaint.
4. The Ordinance speaks for itself. Except as specifically admitted, the
City denies the allegations contained in paragraph 4 of the Complaint.
5. The Ordinance speaks for itself. The City admits and alleges that it
denied an application by Crown Castle, filed on behalf of Verizon Wireless, for a
conditional use permit and design review to modify a nonconforming wireless
facility located at 423 San Pablo Avenue (the "Existing Facility"). The City has
insufficient information or belief to admit or deny the allegations in the third and
fourth sentences in paragraph 5 of the Complaint, and on that basis the City denies
the allegations in the third and fourth sentences in paragraph 5 of the Complaint.
Except as specifically admitted, the City denies the allegations contained in
paragraph 5 of the Complaint.
6. The City has insufficient information or belief to admit or deny the
allegation that "this upgrade is significant to Verizon Wireless and its customers,"
21 and on that basis denies the alleuation that this upgrade is significant to Verizon
Wireless and its customer' 1:xcept as specifically admitted. the City denies the
allegations contained in paragraph 6 oldie Complaint.
7. The City admits and alleges that it denied an application by Crown
Castle, filed on behallol Verizon \Vireless. lor a conditional use permit and design
cc\ ic\\ to modify the Hxistinu Facility. I. \cent as specifically admitted. the City
denic- c ii leat dni eont...6ned in pw . :1 - ; i1 -111 he .oniphitlf
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Case4:11-cv-06155-LB Document10 Filed02/06/12 Page2 of 21
ue and correct copy of which is attached as Exhibit A to the Complaint) and speak
or themselves. The City admits and alleges that the Nxistina Facility was lawfully
constructed and is currently non-con forming under the Albany Municipal Code. t he
laws governing the authority of the City and the federal government speak for
themselves. Except as sped tleally admitted, the City denies the allegations
contained in paragraph 8 of the Complaint.
9. The reasons for the denial are set forth in Resolution No. 2011-56 and
speak for themselves. Statements made by the City's planning staff and outside
consultant speak for themselves. Except as specifically admitted, the City denies the
allegations contained in paragraph 9 of the Complaint.
10. The Ordinance speaks for itself. The Albany Municipal Code speaks for
tself. The City has insufficient information or belief to admit or deny the allegations
in the fourth sentence of paragraph 10 of the Complaint, and on that basis the City
denies the allegations in the fourth sentence of paragraph 10 of the Complaint.
Except as specifically admitted, the City denies the allegations contained in
paragraph 10 of the Complaint.
11. The Ordinance speaks for itself Except as specifically admitted, the
City denies the allegations contained in paragraph 11 of the Complaint.
12. The Ordinance speaks for itself. New York SMSA Ltd. v. Town of
C arkstown, 612 F.3d 97, 105 (2d Cir. 2010) speaks for itself. The federal
minunications Act speaks for itself, [wept as specifically admitted, the City
denies the all ,lations contained in paragraph 1 2 of the Complaint.
The City admits and alleges that on No\ ember 7. 2011, it denied an
24 application by Cro\\ 11 Castle. riled on behalror\ crizon Wireless, for a conditional
use permit and design review for modification of the Ilxisting Facility. The City
admits and alleLles that a true and correct copy of the denial. Resolution No. 2011
:111;1C 11Ct \ 11) C ( ' 111 PL 111.11 Rc . 01 1 1 1 ion \() 2011-7;0 ,; n 11;; Hr
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denies the allegations contained in paragraph 13 of the Complaint.
2 14. The City has insufficient information or belief on the subject to permit
to admit or deny the allegations in paragraph 14 of the Complaint and, basing its
denial on that ground, denies the al legations in paragraph 14 of the Complaint.
5 15. The City admits the allegations in paragraph 15 of the Complaint.
6 16. The City admits the allegations in paragraph 16 of the Complaint.
7 17. The City admits the allegations in paragraph 17 of the Complaint.
8 18. 47 U.S.C. § 332(c)(7)(B)(v) speaks for itself. Except as specifically
9 admitted, the City has insufficient information or belief on the subject to permit it to
10 admit or deny the allegations in paragraph 18 of the Complaint and, basing its denial
11 on that ground, denies the allegations in paragraph 18 of the Complaint.
19. The City has insufficient information or belief on the subject to permit it
to admit or deny the allegations in paragraph 19 of the Complaint and, basing its
4 denial on that ground, denies the allegations in paragraph 19 of the Complaint.
5 20. The City has insufficient information or belief on the subject to permit it
6 to admit or deny the allegations in paragraph 20 of the Complaint and, basing its
7 denial on that ground, denies the allegations in paragraph 20 of the Complaint.
Pew 8 21. The Act, rules, regulations, and orders promulgated by the FCC speak ro
19 for themselves. Except as specifically admitted, the City has insufficient information
20 or belief on the subject to permit it to admit or deny the allegations in paragraph 21
21 of the Complaint and, basing its denial on that ground, denies the allegations in
paragraph 21 of the Complaint.
2. 1 he Cit\ lias insufficient intbrmation or belief on the subject to permit i t
to admit or deny the allegations in paragraph 22 of the Complaint and, basing its
denial on that ground, denies the allegations in paragraph 22 of the Complaint.
The Citv admits the allegations in paragraph 23 or the Complaint.
lie ( I\ has insullicicrn inhrniatiot or on the , hbiect it !mit it
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denial on that ground, denies the allegations in paragraph 24 of the Complaint.
25. The City has insufficient information or belief on the subject to permit it
to admit or deny the allegations in paragraph 25 of the Complaint and, basing its
denial on that ground, denies the allegations in paragraph 25 of the Complaint.
26. The FCC "build out" requirements speak for themselves. Except as
specifically admitted, the City has insufficient information or belief on the subject to
permit it to admit or deny the allegations in paragraph 26 of the Complaint and,
basing its denial on that ground, denies the allegations in paragraph 26 of the
Complaint.
27. The City admits the allegations in paragraph 27 of the Complaint with
he exception of the location of the centerline of the antenna panels owned by
MetroPCS. The centerline of those antenna panels is 49 feet high.
28. The building permit issued by the City for the Existing Facility speaks
for itself. The City admits and alleges that the past and present regulations of the
California Public Utilities Commission speak for themselves. The City has
Insufficient information or belief as to exactly when Verizon Wireless installed the
monopole and began operating the Existing Facility and, basing its denial on that
ground, denies those allegations. Except as specifically admitted, the City denies the
allegations in paragraph 28 of the Complaint.
29. The City has insu Ificient information or belief on the subject to permit it
to admit or deny the allegations in paragraph 2) or the Complaint and, basing its
denial on that ground, denies the allegations in paragraph 7' [the Complaint.
30. The City admits and alleges that in 2001 the Cit\ 's Community
Development Director granted an administrative approval authorizing NtetroPCS to
collocate on an existing monopole and install an array of antennas on the pole at a
2 ) height of approximatel\ 49 feet. The Stall Report for th letroPCS rue i 1 i ty dated ,
t I 2001 . reJL--, l'or Ho! I he ( 'ity admii and [ha! \ ktrol)(
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admitted, the City denies the allegations contained in paragraph 30 of the Complaint.
31. The Radio Acts of 1912 and 1927 speak for themselves. FRC v. Neslon
Bros. Bond & i'forigage Co., 289 U.S. 266, 279 (1933) speaks for itself. Except as
specifically admitted, the City has insufficient information or belief on the subject to
permit it to admit or deny the allegations in paragraph 31 of the Complaint and,
basing its denial on that ground, denies the allegations in paragraph 31 of the
Complaint.
32. The Communications Act of 1934 and NBC v. United States, 319 U.S.
190, 214 (1943) speak for themselves. Except as specifically admitted, the City has
insufficient information or belief on the subject to permit it to admit or deny the
allegations in paragraph 32 of the Complaint and, basing its denial on that ground,
denies the allegations in paragraph 32 of the Complaint.
33. The rules and regulations promulgated by the FCC speak for
themselves. Future Use of FrequencyBand 806-960 MHz, 46 F.C.C.2d 752, 766-67
(1974) speaks for itself. Except as specifically admitted, the City has insufficient
information or belief on the subject to permit it to admit or deny the allegations in
paragraph 33 of the Complaint and, basing its denial on that ground, denies the
allegations in paragraph 33 of the Complaint.
34. 47 U.S.C. Sections 303 and 309(j) speak for themselves. Except as
specifically admitted. the City has insufficient information or belief on the subject to
permit it to admit or deny the allegations in paragraph 34 of the Complaint and.
in its denial on that ground, denies the allegations in paragraph of the
omplaint.
.Velt . York S.1LS..1 Ltd v. Toivii o/ Ciark.slouw. 612 F3d 97, 105 (2d Cir.
2010) speaks for itself. rxeept as specifically admitted. the City has insulticient
in or belief' on the subject to permit it to admit or dem thc all ouations iii
flame' ph thL C(uhrlaint and hw;in,L. ,, its denial that mouH(1 den ie the
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36. Section 332 to the Communications Act, and the Omnibus Budget
2 Reconciliation Act of 1993 speak for themselves. Except as specifically admitted,
3 the City has insufficient information or belief on the subject to permit it to admit or
4 deny the allegations in paragraph 36 of the Complaint and, basing its denial on that
ground, denies the allegations in paragraph 36 of the Complaint.
37. 47 U.S.C. § 332(c)(3)(A), H.R. Rep. No. 103-111(1993), Petition on
Behalf of the State of Conn., 10 F.C.C.R. 7025 (1995), and Conn. Dep't of Pub. Util.
Control v. FCC, 78 F.3d 842, 845 (2d Cir. 1996) speak for themselves. Except as
specifically admitted, the City has insufficient information or belief on the subject to
permit it to admit or deny the allegations in paragraph 37 of the Complaint and,
basing its denial on that ground, denies the allegations in paragraph 37 of the
Complaint.
38. The TCA, 110 Stat. 56 (1996), and Verizon Maryland, Inc. v. Pub.
Service Comm 'n of Md., 535 U.S. 635, 638 (2002) speak for themselves. Except as
specifically admitted, the City has insufficient information or belief on the subject to
permit it to admit or deny the allegations in paragraph 38 of the Complaint and,
basing its denial on that ground, denies the allegations in paragraph 38 of the
Complaint.
39. The City has insufficient information or belief on the subject to permit it
20 to admit or deny the allegations in paragraph 39 of the Complaint and, basing its
21 denial on that ground. denies the allegations in paragraph 39 of the Complaint.
40. 47 1 S.C.SpCakS fbr V.Nk.'ept as specifically admitted, the
ity has insufficient information or belielon the subject to permit it to admit or deny
24 the alleuations in paragraph 40 of the Complaint and, basing its denial on that
ground, denies the allegations in paragraph 40 of the Complaint.
41. Section _53 speaks for liSCI CC11 1 us pcci FICZIIIV admitted. the CitN
jom or N c hc tibcct 10 ncr mit don,
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den ies the allegations in paragraph 41 of the Complaint.
2 42. Sections 332 and 253 speak for themselves. Except as specifically
admitted, the City has insufficient information or belief on the subject to permit it to
4 admit or deny the allegations in paragraph 42 of the Complaint and, basing its denial
5 on that around, denies the allegations in paragraph 42 of the Complaint.
6 43. Section 332 speaks for itself. Except as specifically admitted, the City
7 has insufficient information or belief on the subject to permit it to admit or deny the
8 allegations in paragraph 43 of the Complaint and, basing its denial on that ground,
9 denies the allegations in paragraph 43 of the Complaint.
10 44. Section 332 speaks for itself. Except as specifically admitted, the City
11 has insufficient information or belief on the subject to permit it to admit or deny the
12 allegations in paragraph 44 of the Complaint and, basing its denial on that ground,
13 denies the allegations in paragraph 44 of the Complaint.
4 45. Section 332 speaks for itself. Except as specifically admitted, the City
15 has insufficient information or belief on the subject to permit it to admit or deny the
6 allegations in paragraph 45 of the Complaint and, basing its denial on that ground,
7 denies the allegations in paragraph 45 of the Complaint.
8 46. Section 332 speaks for itself. Except as specifically admitted, the City
19 has insufficient information or belief on the subject to permit it to admit or deny the
20 allegations in paragraph 46 of the Complaint and, basing its denial on that ground,
21 denies the allegations in paragraph 46 of the Complaint.
47. Section 32 and 24 [CC 1:cd. 13994 (2009) speak lOr themselves.
Section 332 speaks lot' itself'. I -:xcept as specifically admitted. the City has
24 1 insufficient inlormation or belief' on the subject to permit it to admit or den\ the
2.5l allegations in paragraph 47 ol the Complaint and. basing its denial on that ground.
denies the all gations in paragraph 47 of Complaint.
[he Ordinance and its findings and \ ,,/
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th u t lie ( ' in IiH. Wld 1 : 11)1 !1:i1 an KyJnicr
specifically admitted, the City denies the allegations in paragraph 48 of the
2 Complaint.
3 49. The Ordinance and 47 U.S.C. l!j 332 speak for themselves. The City
4 admits and alleges that the majority of its land area is residentially zoned. Except as
5 specifically admitted, the City denies the allegations in paragraph 49 of the
6 Complaint.
7 50. The Ordinance speaks for itself. Except as specifically admitted, the
City denies the allegations in paragraph 50 of the Complaint.
9 51. The Ordinance and the FCC's Shot Clock Ruling speak for themselves.
10 Except as specifically admitted, the City denies the allegations in paragraph 51 of the
z 11 Complaint. o ° c.r) 12 52. The Ordinance speaks for itself. Except as specifically admitted, the LLI ° cd
z 3 jJ City denies the allegations in paragraph 52 of the Complaint. v 14 53 The Ordinance speaks for itself. Except as specifically admitted, the
15 City denies the allegations in paragraph 53 of the Complaint.
16 54. The Ordinance speaks for itself. Except as specifically admitted, the <
17 City denies the allegations in paragraph 54 of the Complaint.
18 JJ 55. The Ordinance speaks for itself. Except as specifically admitted, the
19 City denies the allegations in paragraph 55 of the Complaint.
20 56. The City admits and alleges that on June 22, 2009, Crown Castle, on
21 behalf of Verizon Wireless submitted an application for a conditional use permit to
„ increase the number of an enclosures li -om lour to six enclosures. I..xcept as
specificall ■ admitted, the Cit■ has insufficient information or belielon the subject to
, permit it to admit or deny the allegations in paragraph 56 of the Complaint and,
, basin its denial on that !around, denies the alleuations in paragraph 56 of the
Complaint.
Case4:11-cv-06155-LB Document10 Filed02/06/12 Page9 of 21
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tself. Except as specifically admitted, the City denies the allegations in paragraph
57 of the Complaint.
58. The City admits and alleges that the Planning and Zoning Commission
4 held a public hearing on the application on April 27, 2010. The City admits and
5 alleges that the planning staff report, the minutes of the April 27, 2010 Planning and
6 Zoning Commission meeting, and the transcript of the public hearing, each speak for
7 themselves. The City admits and alleges that the hearing on the application was
8 continued to May 25, 2010, and then further continued at the applicant's request to
9 June 22, 2010 and beyond. Except as specifically admitted, the City denies the
10 allegations in paragraph 58 of the Complaint.
59. The City admits and alleges that on or about September 24, 2010, the
City's building inspector issued a stop work order after observing that new antennas
were being installed on the Existing Facility without any City approval or permits.
Except as specifically admitted, the City has insufficient information or belief on the
subject to permit it to admit or deny the allegations in paragraph 59 of the Complaint
and, basing its denial on that ground, denies the allegations in paragraph 59 of the
Complaint.
60. The City admits and alleges that on October 14, 2010, Verizon Wireless
submitted revised plans to the City and that the plans speak for themselves. The City
admits and alleges that on October 26, 2010, the Planning and Zoning Commission
held a public hearing on the revised plans. The City admits and alleges that the
minutes of the Planning and /onin ,, Commission meet n. the transcript of the public
hearing. and the ensuing Notice of Action. each speak iOr themsek s. The Citv has
insufficient information or belief as to \\ by Crown w ithdrew the use permit
application on behalf' of' Verizon Wireless and, basing its denial on that ground,
denies that allegation. 1\cept as spt..cilicallY admitted, the City denies the
.111e , ition, par,i_lraph cm of the Complaint
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City Council requested during the public announcement period of the open session of
the City Council meeting that the Council review the Planning Commission's
decision. Except as specifically admitted, the City denies the allegations in
paragraph 61 of the Complaint.
62. The City admits and alleges that the planning staff report speaks for
itself. The City admits and alleges that the City Council reviewed the Planning
Commission's decision on December 13, 2010 and that the City Council's action is
reflected in the minutes and the Notice of Action, which speak for themselves.
Except as specifically admitted, the City denies the allegations in paragraph 62 of the
Complaint.
63 The City admits and alleges that Verizon Wireless, through its agent
Crown, filed a CUP application (the "Application") on January 20, 2011. The
Application speaks for itself. Except as specifically admitted, the City has
insufficient information or belief on the subject to permit it to admit or deny the
allegations in paragraph 63 of the Complaint and, basing its denial on that ground,
denies the allegations in paragraph 63 of the Complaint.
64. The City admits and alleges that the Planning and Zoning Commission
held a public hearing on the Application on July 26, 2011. The staff report for the
hearing speaks for itself. The Commission's decision denying the Application is
reflected in the minutes of the meeting and in the Notice of Action. which speak for
thk_miselves. Except as specificalf) admitted, the City denies the allegations in
paragyaph of the (..'omplaint
(. I he Cit\ admits and alleges that Veriton Wireless. through its agent
Crown. filed an appeal to the Council and that the Council held a public hearing on
the appeal on September 19. 20 I I. the City admits and alleges that representati\ es
of ( ro\\ n and Nieri/on Wireless testified at the hearing and t hat the transcript of said
Case4:11-cv-06155-LB Document10 Filed02/06/12 Page11 of 21
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1 paragraph 65 of the Complaint and, basing its denial on that ground, denies the
2 allegations in paragraph 65 of the Complaint.
3 66. The City has insufficient information or belief on the subject to permit it
4 to admit or deny the allegations in paragraph 66 of the Complaint and, basini2. its
5 denial on that ground, denies the allegations in paragraph 66 of the Complaint.
6 67. The Ordinance speaks for itself. Except as specifically admitted, the
7 City has insufficient information or belief on the subject to permit it to admit or deny
8 the allegations in paragraph 67 of the Complaint and, basing its denial on that
9 ground, denies the allegations in paragraph 67 of the Complaint.
10 68. The Ordinance speaks for itself. Except as specifically admitted, the
11 City has insufficient information or belief on the subject to permit it to admit or deny
12 the allegations in paragraph 68 of the Complaint and, basing its denial on that
13 ground, denies the allegations in paragraph 68 of the Complaint.
14 69. The City admits and alleges that the Council directed that the hearing be
15 continued in order to allow an independent review of the application to be conducted
16 by a qualified technical expert hired by the City. The City admits and alleges that it
17 retained Jonathan Kramer, a well-known and qualified telecommunications and radio
18 frequency expert, to perform an independent review of the application. The City
19 admits and alleges that Mr. Kramer requested additional information from the
20 applicant. Except as specifically admitted, the City denies the allegations in
21 paragraph (..)) of the Complaint.
70. The City admits and alleges that it 1 -c-eel d a letter on behalf of Veriion
Wireless dated October 3. 2011, and that the letter speaks for itself. Fxcept as
specifically admitted, the C . ity denies the allegations in paragraph i 70 of the
Complaint.
71. The report b\ \Ir. Kramer dated \7overnb,..‘r 2. 2011. speaks for use! 1.
lilt,' ( .1 t.iCH0`, 111C •H
Case4:11-cv-06155-LB Document10 Filed02/06/12 Page12 of 21
72. The report by Mr. Kramer dated November 2, 2011, and his previous
report speak for themselves. Except as specifically admitted, the City denies the
allegations in paragraph 72 of the Complaint.
73. The City admits and alleges that on November 7, 2011, the Council
5 nclopted Resolution No. 2011-56 (the "Decision") and that the resolution speaks for
6 itself. Except as specifically admitted, the City denies the allegations in paragraph
7 73 of the Complaint.
8 74. The City denies it has acted unlawfully. Except as specifically
9 admitted, the City has insufficient information or belief on the subject to permit it to
10 admit or deny the allegations in paragraph 74 of the Complaint and, basing its denial
11 on that ground, denies the allegations in paragraph 74 of the Complaint.
▪ 12 75. The City has insufficient information or belief on the subject to permit it ce L.LJ
▪ 13 to admit or deny the allegations in paragraph 75 of the Complaint and, basing its 0 14 denial on that ground, denies the allegations in paragraph 75 of the Complaint.
15 76. The City denies it has conducted itself unlawfully. The (J)
CC 16 Telecommunications Act speaks for itself. Except as specifically admitted, the City
- 17 has insufficient information or belief on the subject to permit it to admit or deny the
;ow 18 allegations in paragraph 76 of the Complaint and, basing its denial on that ground,
19 denies the allegations in paragraph 76 of the Complaint.
20 77. The City denies it has acted unlawfully. Except as specifically
admitted. the City has insufficient information or belielon the subject to permit it to
tdmit or deny the allegations in paragraph 77 of the Complaint and. basing its denial
on that Llround. denies the all in paragraph 77 of the Complaint.
78. The City denies the allegations in paragraph 7 of the Complaint.
79. The City admits and alleges that its actions were not preempted by or in
iolation or the Act. lt\c.tept as specifically admitted, the City has insulficient
l 'OrMlion t He! el on the t-nbik.sct to peril) h it to admit or ( 1,..m , th k: l li cIra ti ori ,; in
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1 allegations in paragraph 79 of the Complaint.
2 80. The City denies it has acted unlawfully. Except as specifically
admitted, the City has insufficient information or belief on the subject to permit it to
admit or deny the allegations in paragraph 80 of the Complaint and, basing its denial
on that ground, denies the allegations in paragraph 80 of the Complaint.
81. The City has insufficient information or belief on the subject to permit it
to admit or deny the allegations in paragraph 81 of the Complaint and, basing its
denial on that ground, denies the allegations in paragraph 81 of the Complaint.
COUNT ONE
82. The City repeats its answers to paragraphs 1 through 81, inclusive, of
the Complaint and incorporates them herein by this reference as though set forth
again in full.
83. 47 U.S.C. § 253 speaks for itself. Except as specifically admitted, the
City denies the allegations in paragraph 83 of the Complaint.
84. The Ordinance speaks for itself. Except as specifically admitted, the
City denies the allegations in paragraph 84 of the Complaint.
85. The City denies the allegations in paragraph 85 of the Complaint.
86. The Ordinance and 47 U.S.C. § 253 speak for themselves. Except as
specifically admitted, the City denies the allegations in paragraph 86 of the
Complaint.
87. The Ordinance. the Decision, and 47 U.S.C. § 253 speak for themselves
lAcept as specifically admitted. the City denies the allegations in paragraph 87 of the
. Complaint.
88. The Ordinance. Section 2c2 of the Communications Act, and the
Supremacy Clause of: the Lrnited States Constitution speak for themselves. Except as
". o specifically admitted. the Cit\ denies the allegations in paragraph 88 of
Complaint
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1 COUNT TWO
2 89. The City repeats its answers to paragraphs 1 through 88, inclusive, of
3 t le Complaint and incorporates them herein by this reference as though set forth
4 again in full.
5 90. 47 U.S.C. § 332 speaks for itself. Except as specifically admitted, the
6 City denies the allegations in paragraph 90 of the Complaint.
7 91. 47 U.S.C. § 332 speaks for itself. Except as specifically admitted, the
City has insufficient information or belief on the subject to permit it to admit or deny
9 the allegations in paragraph 91 of the Complaint and, basing its denial on that
10 ground, denies the allegations in paragraph 91 of the Complaint.
11 92. 47 U.S.C. § 332 speaks for itself. Except as specifically admitted, the
12 City has insufficient information or belief on the subject to permit it to admit or deny
13 the allegations in paragraph 92 of the Complaint and, basing its denial on that
4 ground, denies the allegations in paragraph 92 of the Complaint.
5 93. The Ordinance, 47 U.S.C. § 332, and the Decision speak for themselves.
6 Except as specifically admitted, the City denies the allegations in paragraph 93 of the
17 Complaint.
18 94. The Ordinance, the Decision, and 47 U.S.C. § 332 speak for themselves.
19 Except as specifically admitted, the City denies the allegations in paragraph 94 of the
20 Complaint.
2.1 95. The Ordinance. the Decision., and 47 U.S.C. § 332 speak Colt themselves.
22hxcept as speciIicall admitted, the City denies the allegations in paragi - aph 95 ()I' the
23 Complaint.
24 96. The Ordinance. the Decision. 47 IT.S.C. and thc Supremacy
25 . liaise speak ror themselves. Except as specifically admitted, the City denies the
26 allegations in paragraph 96 ol the Complaint.
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COUNT THREE
97. The City repeats its answers to paragraphs 1 through 96, inclusive, of
the Complaint and incorporates them herein by this reference as though set forth
aLsain in full.
5 98. Federal law speaks for itself. Except as specifically admitted, the City
6 denies the allegations in paragraph 98 of the Complaint.
7
99. The Ordinance and the Decision speak for themselves. Except as
specifically admitted, the City denies the allegations in paragraph 99 of the
9 Complaint.
10
100. The Ordinance, the Decision, and the Supremacy Clause of the U.S.
11 Constitution speak for themselves. Except as specifically admitted, the City denies
12 the allegations in paragraph 100 of the Complaint.
13
COUNT FOUR
14
101. The City repeats its answers to paragraphs 1 through 100, inclusive, of
15 the Complaint and incorporates them herein by this reference as though set forth
16 again in full.
17
102. FCC technical and operational standards speak for themselves. The
18 following speak for themselves: In re Future Use of Frequency Band 806-960 MHZ,
19 46 FCC 2d 752 (1974); Use of the Bands 825-845 MHz and 870-890 MHz, 86 FCC
2 -
2d 469 503-505 (1981)• and Use of the Bands 825-845 MHz and 870-890 MHz, 89
21 OFCC 2d 58 09821. Except as specifically admitted. the City denies the allegations in
Hragra h 102 of the Complaint.
103. 1 LC requirements speak 1Or themsek es. I xcept as speci lca1 l\
a dm i tted, the Cit ■ denies the alleuations in paragraph 103 of the Complaint.
104. The FCC's administrati\ e orders and reuulations speak lot - themselves.
( flu ot ell' /0/A v. /.(. V. 486 I . .S "`7. 04 ( () speaks for itself. Except as
sa! ,dmitted. the (.'it\ detiic hc tli in p ttttt 1 H4 01 thc
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105. The Ordinance, the Decision, FCC orders, the Communications Act, and
the Supremacy Clause of the United States Constitution speak for themselves.
Except as specifically admitted, the City denies the allegations in paragraph 10
4 the Complaint.
5
6
7
COUNT FIVE
106. The City repeats its answers to paragraphs 1 through 105, inclusive, of
the Complaint and incorporates them herein by this reference as though set forth
again in full.
107. The Application and the TCA speak for themselves. Except as
specifically admitted, the City denies the allegations in paragraph 106 of the
Complaint.
108. The Decision speaks for itself. Except as specifically admitted, the City
denies the allegations in paragraph 108 of the Complaint.
109. The Decision speaks for itself. Prior findings by the City and
admissions by planning staff and Mr. Kramer speak for themselves. Except as
specifically admitted, the City denies the allegations in paragraph 109 of the
Complaint.
110. The Decision speaks for itself. Hansen Brothers Enterprises, Inc. v.
Board of Supervisors of Nevada County, 12 Ca1.4th 533, 565 (1996) speaks for itse
Except as specifically admitted, the City denies the allegations in paragraph 110 of
the Complaint.
1, Str/rati . i. Falcon Cable Tcicrision. 165 Cal.App.3d 798. 903 (1985)
and 117//ianis Communications. I,LC V. City 1?ivc1.sidc. 114 Cal.App 4th 642. 6
('1)04) speak lot themselves. Except as specifically admitted, the City denies the
alleuations in parath -aph 111 of the Complaint.
1 11 . 1 he Deci s ion and rederal la\\ speak lor thernse It as
PCCj 1,,111:\ 1,1111i Ihe (\ all.CL.1,10H` -IdiThj.1 -dril 112 orthc
Case4:11-cv-06155-LB Document10 Filed02/06/12 Page17 of 21
113. 47 U.S.C. § 332 speaks for itself. Except as specifically admitted, the
City denies the allegations in paragraph 113 of the Complaint.
COUNT SIX
114. The City repeats its answers to paragraphs 1 through 113, inclusive, of
the Complaint and incorporates them herein by this reference as though set forth
again in full.
115. The Decision speaks for itself. Except as specifically admitted, the City
8 has insufficient information or belief on the subject to permit it to admit or deny the
9 allegations in paragraph 115 of the Complaint and, basing its denial on that ground,
10 denies the allegations in paragraph 115 of the Complaint.
11 116. The Decision speaks for itself. Except as specifically admitted, the City
12 Ii has insufficient information or belief on the subject to permit it to admit or deny the
allegations in paragraph 116 of the Complaint and, basing its denial on that ground,
denies the allegations in paragraph 116 of the Complaint.
117. The Decision speaks for itself. Except as specifically admitted, the City Ln cx16 has insufficient information or belief on the subject to permit it to admit or deny the
L.)17 allegations in paragraph 117 of the Complaint and, basing its denial on that ground,
;ow 8 denies the allegations in paragraph 117 of the Complaint.
19 118. 47 U.S.C. § 332 speaks for itself. Except as specifically admitted, the
20 City denies the allegations in paragraph 118 of the Complaint.
COUNT SEVEN
1 10 - I 11,2. CitN repeats its answers to paragraphs 1 throuuh 118. inclusive, of
the Complaint and incorporates them hercit 1vY - this reference as though set forth
again in Ill?
'15 120. The City has insufficient information or belief on the suhject to permit - it
to admit or dcn the allegations in paragraph 120 of the Complaint and. basing its
denial on that 2rotind. denies the all. in p,Ititimi-, 11 I :20 thc
2NE)
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stall an array of six panels on the same pole on the Existing Facility. Except as
specifically admitted, the City denies the allegations in paragraph 121 of the
Complaint.
4 122. 47 U.S.C. § 332 speaks for itself. Except as specifically admitted, the
5 City denies the allegations in paragraph 122 of the Complaint.
6
7 FIRST AFFIRMATIVE DEFENSE
8 [Failure to State A Claim For Relief]
9 123. The Complaint fails to state a claim upon which relief may be granted.
10
11 SECOND AFFIRMATIVE DEFENSE
12 [Failure to Exhaust Administrative Remedies]
3 124. To the extent the Complaint raises issues not presented during the
4 proceedings leading to Resolution No. 2011-56, plaintiff's failure to exhaust its
15 administrative remedies on those issues bars it from raising those issues here.
16
17 THIRD AFFIRMATIVE DEFENSE
18 [Waiver]
19 125. To the extent the Complaint raises issues not presented during the
20 proceedings leading to Resolution No. 2011-56, plaintiff has waived those issues.
21
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FOURTH AFFIRMATIVE DEFENSE
I' ..stoppel
126. To the extent the Complaint rakes issues not presented (luring the
25 proceedings leading to Resolution No. 2011- 6, plaintiff is estopped from raisina.
6 those issues here.
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FIFTH AFFIRMATIVE DEFENSE
[Statute of Limitations
127. Plaintiffs facial challenge to the Ordinance is barred by the applicable
4 statute of limitations including, but not limited to, Government Code Section
5 65009(c)(1)(B).
6
7 SIXTH AFFIRMATIVE DEFENSE
8 [Standing]
9 128. Because the Existing Facility is located in a commercial zone, plaintiff
10 has no standing to challenge the Ordinance's prohibition on facilities in residential
11 zones, and therefore has no standing to mount a facial challenge to the Ordinance.
12
13 PRAYER FOR RELIEF
14 Wherefore, the City prays judgment as follows:
15 1. That plaintiff take nothing and that the Complaint be dismissed with
16 prejudice;
17 2. That judgment be entered in favor of the City and against plaintiff;
18 3. That the City be awarded its costs and fees of this lawsuit, including
19 reasonable attorneys' fees to the extent allowed by law;
20 4. That the City be awarded such other and further relief as the Court
21 , deems just.
22
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1 Dated: February 3, 2012 Respectfully submitted,
CRAIG LABADIE CITY ATTORNEY CITY OF ALBANY
4 T. IT 1ER PIERCE DAVID G. ALDERSON
5 RICHARDS, WATSON & GERSHON A Profess ionil Corporation
6
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By: T. PETER PIERCE Attorneys for Defendant, City of Albany
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