Você está na página 1de 46

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 1 of 46

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT ----------------------------------------------------------------------------x NEW CINGULAR WIRELESS PCS, LLC a.k.a AT&T Plaintiff, -againstTHE CITY OF WEST HAVEN and THE CITY OF WEST HAVEN, CONNECTICUT PLANNING AND ZONING COMMISSION Defendants. ----------------------------------------------------------------------------x New Cingular Wireless PCS, LLC (AT&T), by its attorneys, Cuddy & Feder LLP, as and for its Complaint against the City of West Haven, Connecticut (West Haven) and the City of West Haven Planning and Zoning Commission (the Commission) (collectively, Defendants or the City), respectfully alleges as follows: Facts Common To All Claims For Relief Nature Of The Action 1. This Action arises from the Citys bad faith denial of AT&Ts application COMPLAINT DOCKET NO.______

for a Special Permit to install a personal wireless service facility adjacent to virtually identical and functionally equivalent facilities operated and maintained by AT&Ts principal competitors Verizon Wireless (Verizon), T-Mobile, Sprint/Nextel and Clearwire on the rooftop of a building located at 278 Main Street in West Haven, which is located in the downtown area of the City. 2. AT&Ts proposed facility principally called for the addition of twelve

panel antennas (where the other carriers already have thirty antennas) to the penthouse rooftop of the building at 278 Main Street at a height of approximately seventy feet above grade level, to be

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 2 of 46

enclosed within radiofrequency transparent enclosures that would be painted and textured to match the brick faade of the building, together with the addition of ancillary equipment necessary for the operation of the antennas within the building on the ground floor inside a secure stud-wall equipment room and other such cabling as would be required for the operation of AT&Ts proposed antennas and equipment. 3. AT&T proposed its facility in furtherance of the build-out of its wireless

network and deployment of its Long Term Evolution (LTE) technology to provide enhanced mobile wireless services to the public as part of AT&Ts network, consistent with Congresss mandate, as implemented through the Federal Communications Commissions (FCC) regulatory oversight, to rapidly deploy advanced telecommunications and information technologies so as to ensure that all Americans have access to personal communications services. 4. The City denied this application in a half-page Certificate of Decision

(the Decision) based on the unreasonable and unsupported conclusions reached by the Commission in its spurious review of AT&Ts application under the City of West Haven Zoning Regulations (the Zoning Regulations, Telecommunications Regulation, or Regulations), including that AT&Ts proposal purportedly was not screened despite the fact that AT&T did propose to shield its facility from view, that AT&T did not comply with the Citys (totally illegal) requirement to include plans to screen the pre-existing antennas and equipment maintained by AT&Ts chief industry competitors at a prohibitive cost to AT&T, that AT&T did not acquiesce to the Citys codified (also illegal) preference to receive rents from personal wireless telecommunications carriers by proposing the facility on unsuitable municipal property (City Hall), that AT&Ts ancillary support equipment did not (and could not physically or technologically) fit within the (also illegal) limitations of the Citys prohibitive equipment

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 3 of 46

building/floor area regulation, and that AT&Ts proposed facility did not mitigate possible visual impact (in fact, it did) preserve views, corridors [or] vistas (whatever that means) and did not preserve the pre-existing character of the site (it did), all of which conclusions were reached by the Commission without reliance on substantial evidence on the record, save for the (invalid as preempted) equipment building regulation. 5. The City also ignored the unrefuted facts in the record confirming that

AT&T had conducted an extensive search for a suitable site in this area of the City that ruled out all other existing structures, regardless of public or private ownership, including City Hall, and that AT&Ts proposed facility would have no material negative visual impact whatsoever, given that AT&Ts antennas would be completely shielded from view by textured radiofrequency transparent enclosures that would be painted to match the brick faade of the building at 278 Main Street. 6. In violation of federal law, the City thus unreasonably and unlawfully

discriminated against AT&T by basing its denial on the erroneous assertion that AT&T supposedly did not satisfy the Citys screening requirements and by imposing its irrational and unlawful screening requirements on AT&T, thereby precluding AT&T from providing functionally equivalent services as compared to similarly situated wireless service providers Verizon, T-Mobile, Sprint/Nextel and Clearwire, none of which maintain any physical screening over their antennas mounted to the same rooftop, and each of which enjoys a substantial competitive advantage at the same site and in the same service area as long as AT&T is prohibited from building and operating its facility. 7. In violation of federal law, the Citys denial of AT&Ts application for a

Special Permit also effectively prohibits AT&T from providing personal wireless services to this

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 4 of 46

area of West Haven. 8. This denial is just the latest in a disturbing pattern, which clearly

evidences the Citys systemic intent to keep further wireless development outside its borders, as evidenced by the Citys recent denial of an unrelated AT&T application for Special Permit for a minor upgrade to an existing AT&T wireless telecommunications facility at 478 Saw Mill Road (which was inappropriately discussed at length by the Commission on the record in this matter and which is currently subject to litigation before this Court in New Cingular Wireless PCS, LLC v. West Haven, Docket No. 3:11-CV-1677 (SRU)). 9. Moreover, on information and belief, the City has not granted a single

Special Permit for the construction, modification or even for the routine maintenance of a personal wireless service facility since the City amended its Zoning Regulations to include a comprehensive Telecommunications Regulation, confirming that the City has engaged in a general ban aimed at prohibiting the provision of personal wireless services in the City. 10. In violation of federal law, the Citys arbitrary findings in the Decision

offer absolutely no reason or basis for the denial except conclusory and incomprehensible references to sections of the Zoning Regulations that the City erroneously relied upon in issuing its denial. Also conspicuously lacking is a shred of evidence, let alone substantial evidence, either in the Decision or in the record, upon which the City could support its denial. 11. The City also denied AT&Ts application on the basis that AT&Ts at-

grade equipment footprint (with all equipment hidden within the confines of the building at 278 Main Street in a secure stud-wall equipment room on the ground level) exceeded arbitrary space limitations imposed by the City. AT&T could not possibly satisfy the Citys equipment floor space limitation in light of the space requirements for the actual equipment required to operate a

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 5 of 46

personal wireless service facility. The Citys arbitrary restrictions on the allowable footprint and amount of space that AT&Ts equipment can occupy thereby violates and is preempted by federal law because this equipment size restriction effectively prohibits the provision of wireless services and illegally imposes the Citys technological preferences on the nature, size and technology of AT&Ts wireless equipment in a field that is exclusively regulated by, and reserved to the authority of Congress and the FCC. 12. The Citys screening regulations, which include absolute screening

requirements regardless of the context of the application, are unconstitutionally vague on their face and as applied, as is amply illustrated by the instant case, where AT&T made every attempt within the confines of the law to satisfy the Citys screening requirements, but because these requirements were wholly lacking in meaningful substance and guidance, no matter what action AT&T took, the City advanced a subjective, bad faith interpretation of screening to manufacture a specious finding of a noncompliance by AT&T. The undefined screening requirements of the Zoning Regulations give the City unfettered discretion to shift its interpretation of what constitutes screening in myriad ways in order to arbitrarily justify a denial of a wireless application and must therefore be stricken. 13. Moreover, the Citys prohibitory equipment building/floor area regulation

is preempted by the Commerce Clause of Article 1, Section 8, Clause 3 and the Supremacy Clause of Article VI, Clause 2, of the United States Constitution because it is a regulation that unduly burdens the out-of-state designers, developers, producers and manufacturers of AT&Ts wireless telecommunications equipment, which is designed to be standardized and interchangeable with other wireless facilities in AT&Ts network within and without Connecticut in order to comply with AT&Ts federal mandate to provide for the rapid and cost-

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 6 of 46

effective deployment of personal communications services technology to the American people, such that the effect of the building size/floor area regulation is clearly excessive in relation to the putative local benefit and rendered unreasonable and irrational. 14. Further, in violation of several provisions of the Connecticut General

Statutes and relevant state law: the Citys Regulations prohibit a personal communications service provider from seeking a variance, which is an invalid and illegal limitation of the statutory authority of the Zoning Board of Appeals and renders an appeal to the Zoning Board of Appeals futile; the Decision was not based on substantial evidence in the record, nor did the City publish notice of the Decision in a newspaper of general circulation in the community; and the City maintains a codified, illegal, first-priority preference for siting telecommunications facilities on municipal-owned property or buildings in excess of statutory authority. 15. The City is thus liable for violations of Section 704 of the

Telecommunications Act of 1934, as amended by the Telecommunications Act of 1996 (the Telecommunications Act or the Act) (codified at 47 U.S.C. 332(c)(7)(B)), by virtue of the Citys unreasonable discrimination, effective prohibition of personal wireless services and the lack of substantial evidence upon which to support its Decision. 16. The City is also liable for violations of Connecticut General Statutes 8-

6(a), 8-3c and 8-2 by virtue of enforcing Regulations that create a preference for municipal property over private property in excess of statutory authority, unlawfully limit the statutory authority of the Zoning Board of Appeals, and by virtue of rendering the Decision without any reasoning, discussion or basis, let alone substantial evidence on the record and failing to publish the Decision as required by statute.

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 7 of 46

17.

On these bases, as set forth herein, AT&T is entitled to a judgment and an

injunction reversing the Decision, compelling the City to grant AT&Ts Special Permit application and to furnish AT&T with any and all other approvals and permits required for AT&Ts proposed facility to be immediately constructed and made operational, and striking those portions of the Citys Zoning Regulations that arbitrarily impose screening requirements, equipment building/footprint limitations, a first-priority preference for municipal-owned property and which preclude the possibility of a variance that could have otherwise served to relieve AT&T (and anyone else for that matter) from the Citys onerous and irrational Special Permit requirements. The Parties 18. Plaintiff AT&T is a Delaware Limited Liability Company authorized to do

business in Connecticut with an address at 500 Enterprise Drive, Rocky Hill, Connecticut, 06067. Plaintiff AT&T provides personal wireless services to the public as that term is used and defined in Section 332(c)(7)(B) of the Telecommunications Act. 19. On information and belief, Defendant the City of West Haven is a

municipality duly organized and existing under the laws of the state of Connecticut, having an address at City Hall, 355 Main Street, West Haven, Connecticut, 06516. 20. On information and belief, Defendant the City of West Haven,

Connecticut Planning and Zoning Commission is the municipal agency empowered under the laws of the state of Connecticut and the City of West Haven with the administrative authority to grant Special Permits, having an address at 355 Main Street, West Haven, Connecticut, 06516.

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 8 of 46

Jurisdiction And Venue 21. This Court has subject matter jurisdiction over this action pursuant to: (a)

47 U.S.C. 332(c)(7)(B)(v) of the Telecommunications Act because AT&T has been adversely affected and aggrieved by Defendants actions in violation of 332(c)(7)(B) of the Telecommunications Act; and (b) 28 USC 1331 because this is a civil action that presents federal questions arising under the Telecommunications Act. 22. This Court has personal jurisdiction over Defendants in that Defendants

committed the specific acts complained of herein in the judicial district for the United States District Court, District of Connecticut. 23. Venue is proper in this Court pursuant to 28 U.S.C. 1391 because the

claims stated herein arose in the judicial district for the United States District Court, District of Connecticut, and Defendants reside in this District. Expedited Review Requirement 24. Expedited review of this action is required pursuant to Section 704 of the

Telecommunications Act, as codified at 332(c)(7)(B)(v) of the Telecommunications Act (providing that [t]he court shall hear and decide such action on an expedited basis). The Important Federal Interests At Issue In This Case 25. The United States of America has declared that there is a public need for

wireless communication services such as personal wireless services, as set forth in the Telecommunications Act, and the Federal Communications Commission (FCC) rules, regulations and orders promulgated pursuant thereto. 26. The Telecommunications Act was intended by Congress to provide for a

pro-competitive, deregulatory national policy framework designed to accelerate rapidly private

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 9 of 46

sector deployment of advanced telecommunications and information technologies to all Americans. H.R. Rep. No. 104-458, at 206 (1996) (Conf. Rep.); See 1996 U.S. Code Cong. and Adm. News, p. 10. 27. public. 28. The FCC licenses providers of personal wireless services to use limited The FCC regulates the provision of personal wireless services to the

resources, frequencies and spectrum allocated by the FCC for the provision of such services to the public. 29. The Telecommunications Act, while preserving state and local authority

over the placement, construction or modification of wireless facilities, expressly preempts state or local governments from unreasonably discriminating among providers of functionally equivalent services (here, AT&T, as compared to its competitors Verizon, T-Mobile, Sprint/Nextel and Clearwire), effectively prohibiting the provision of personal wireless services and from implementing regulations and/or decisions that are not supported by substantial evidence (here, there is no record evidence to support the denial). 30. The Telecommunications Act also preempts state and local governments

from regulating their own technological preferences or implementing regulations that have the effect of prohibiting the provision of wireless services (such as the unreasonable space limitations on the placement of equipment here, which would serve as a bar to any wireless carriers ability to effectively provide services going forward). 31. AT&T provides mobile telephone and other personal wireless

communication services in the State of Connecticut pursuant to FCC licenses issued to AT&T. 32. The FCCs granting of licenses to AT&T constitutes a finding that the

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 10 of 46

public interests will be served by AT&Ts services, consistent with the public policy, as formulated by Congress, to make available so far as possible, to all people of the United States . . . a rapid, efficient, nationwide and worldwide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of national defense, for the purpose of promoting safety of life and property through the use of wire and radio communication. 47 U.S.C. 151 (emphasis added). 33. AT&Ts customers communicate through handsets, mobile telephones,

and other media via a network of personal wireless service facilities, each of which operate at low wattages and use the finite amount of the radio frequency spectrum allotted to AT&T by the FCC. 34. Pursuant to the federal mandates described herein, telecommunications

facilities are part of the nations critical infrastructure and further a national policy to extend wireless services to all areas of America and to provide broadband services, which by virtue of the emerging technology and increasing demand includes the facility at issue here. These federal mandates are evidenced in numerous laws adopted by the Congress, FCC regulations and recent decisions and other federal policies, including those of the President of the United States. AT&Ts Wireless Service 35. AT&Ts provision of wireless services is only possible through the

installation of numerous wireless facilities in order to create a network. 36. Typically, a wireless facility consists of up to twelve flat panel antennas,

which may be mounted on existing tall structures or attached to a tower or monopole (or in this case, a building rooftop) along with other associated equipment necessary for the operation of the facility.

10

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 11 of 46

37.

Each wireless facility services a specific area, the exact radius of which is

dependent upon topography, including the terrain, existence of trees, buildings, and other obstructions which impact the effectiveness and propagation of the radiofrequency signals utilized in the provision of wireless services. 38. Existing gaps in personal wireless service coverage, and increasing

demand for wireless services by the public requires the installation of additional wireless facilities by AT&T across the state of Connecticut and specifically in and around West Haven, including the facility at issue here, which is designed to ensure the continued provision of wireless services with the requisite coverage and capacity needed for reliable voice, data and other services for use by the public on a daily basis and ensuring that the wireless services are tailored to meet the evolving needs of mobile devices used by the general public (such as 4G and LTE smart phone devices). 39. To be properly sited and function within AT&Ts network, a wireless

facility must be capable of seamlessly handing off communications to another adjacent wireless facility within each wireless carriers respective network system. 40. AT&Ts Radio Frequency (RF) Engineers conduct detailed technical

analyses to determine where wireless facilities must be installed in order to provide the seamless coverage needed to address the topographical and technological limitations involved in the provision of its wireless services. 41. Unlike wire-line communications, wireless service cannot be piped or

wired to users from a distant facility. Instead, each wireless facility itself is the generating facility with radio waves linking users to wireless service. 42. Alternative locations for wireless facilities needed to remedy gaps and

11

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 12 of 46

resolve poor quality service are generally situated at the centerpoint of the area where wireless service is poor to non-existent and are highly dependent on topography. 43. As a result of these technological requirements and limitations, the

necessary location for the installation of a wireless facility is wholly unrelated to state or local artificially created districts or boundaries. Background Of The Site/Full Compliance With Special Permit Requirements 44. The site at issue is a building with a rooftop penthouse at 278 Main Street,

West Haven, Connecticut. The building is located in an area designated by the City as a Central Business District, in the downtown area of the City. The building, known as the Giannotti Apartments, supports the antennas and equipment of wireless facilities operated and maintained by all of AT&Ts major industry competitors on its roof. 45. According to the Citys Zoning Regulations, a Central Business District

is designed to preserve quality historic structures, design compatible new infill development, restore vitality and economic strength to West Havens Central Business District [and] create special areas within the district which possess a mix of uses integrated by complementary activities, which historically has included the existing wireless facilities maintained by AT&Ts competitors at 278 Main Street. 46. The underlying building, which was once a City-owned school and listed

on the National Register of Historic Places in 1985, now serves as a privately-owned apartment complex in this densely populated downtown area of the City. 47. On information and belief, T-Mobiles wireless facility has been in

operation on the rooftop at 278 Main Street since on or about January 30, 2003, with additional T-Mobile Antennas being installed on or about May 13, 2004 and again on or about December

12

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 13 of 46

23, 2008, for a total of six antennas, four rooftop-mounted equipment cabinets and other related equipment. Sprint/Nextels wireless facility has been in operation on the rooftop since on or about February 27, 2005, and consists of nine antennas and related support equipment. Clearwire operates a wireless facility on the rooftop consisting of three panel antennas, a microwave dish and other ancillary support equipment. Verizon has operated a facility at the site since on or about March 2, 2009, which consists of an emergency electricity generator and an equipment shelter mounted to the penthouse rooftop with twelve antennas pipe-mounted to the shelter at an overall height of approximately eighty-four feet above grade level, which is the highest point on the subject property. 48. Each of these facilities was installed prior to the amendment of the Citys

Zoning Regulations to include a comprehensive Telecommunications Regulation. None of the existing antennas or equipment are shielded from view or screened (no matter how the City chooses to define that term on any given day) and are, therefore, protected by law as existing nonconformities with the current Zoning Regulations. 49. On information and belief, each personal wireless service provider

operates under a separate lease with the buildings owner, with attendant rights and duties thereto. 50. Beginning on or around January 2010, the existing Verizon facility at 278

Main Street became the focus of public opposition from City residents living within a close proximity to 278 Main Street drawing complaints of violations of the Zoning Regulations and the City noise ordinance, which resulted in petitions, attempted action before the Zoning Board of Appeals that concluded on or about October 10, 2010, complaints to the Office of the Connecticut Attorney General made between December 2010 and January 2011, public

13

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 14 of 46

investigation of the Planning and Zoning Commission by the City Council, investigation of alleged violations of the Zoning Regulations by the City Zoning Enforcement Officer that commenced in or around September, 2011, and zoning enforcement proceedings against Verizon that commenced on or about October 5, 2011. 51. In the intervening time (and in response to the public criticism of the

practice and procedure of the Department of Planning and Development and the Planning and Zoning Commission, which had previously required only a building permit for the construction or modification of a personal wireless service facility) the Planning and Zoning Commission amended the Zoning Regulations to include a comprehensive (and labyrinthine)

Telecommunications Regulation, codified at Section 48, the last amendment to which became effective on or about January 11, 2011, which requires a Special Permit (as opposed to a building permit, which is all that was required for the preexisting installations of Verizon, T-Mobile, Sprint/Nextel and Clearwire facilities) for the construction of new facilities and even minor modifications to existing wireless facilities. 52. On information and belief, since members of the public became vocal in

opposition to wireless facilities, the City has not granted a single Special Permit for the construction or even routine modification (no matter how minimal and unobtrusive) of a wireless facility, including a 2009 application by Pocket Wireless that was denied on or about January 26, 2010, a post-Telecommunications Regulation 2011 application by Sprint/Nextel to perform equipment upgrades to its facility at 278 Main Street that was denied on or about June 14, 2011, and the denial of AT&Ts unrelated application for a Special Permit to perform a routine equipment upgrade at its facility at 478 Saw Mill Road on or about October 5, 2011 save for granting one Special Permit to the Regional Water Authority, permitting it to construct an

14

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 15 of 46

unscreened communications tower, which should have been prohibited by Sections 48.6.12 and 48.6.13 had the City uniformly applied its laws, atop a water tower located within a residential zone, which should have been prohibited by Section 48.3, subject to the express condition that the tower never be permitted to be used for the transmission of personal wireless services, further evidencing the Citys open (and notorious) animus toward personal wireless service providers and the Citys utilization of its Regulations in an arbitrary and capricious manner to effectively prohibit and effectuate a general ban on wireless services within the City. 53. In 2011, consistent with its federal mandate to continue to ensure the rapid

deployment of reliable wireless services, which necessarily calls for facilities with the latest technology and equipment (4G smart phones for example), AT&T filed an unrelated application for a Special Permit with the Commission to perform minimal modifications to AT&Ts wireless telecommunications facility at 478 Saw Mill Road in West Haven by keeping the six existing antennas and adding three new antennas and related equipment along with other equipment to the interior of an existing enclosed shelter, which application was denied by the Commission without basis by a letter postmarked on or about October 5, 2011, which denial is now the subject of litigation before this court in New Cingular Wireless PCS, LLC v. West Haven, Docket No. 3:11-CV-1677 (SRU). 54. It is into this milieu and with due consideration of the stringent Special

Permit criteria and the Commissions arbitrary and restrictive (to the point of prohibition) interpretation of those criteria that AT&T submitted an application for Special Permit to construct a wireless facility at 278 Main Street on September 9, 2011, which consisted of, inter alia: a completed application form; a memorandum in support; a narrative site search summary explaining in detail AT&Ts internal site search procedures, the specific properties investigated,

15

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 16 of 46

and the reason that each was determined to be unsuitable; drawings completed by a Connecticutlicensed professional engineer; a table of existing AT&T wireless sites in West Haven; a structural assessment letter made by a Connecticut-licensed professional engineer attesting to the structural soundness of the rooftop at 278 Main Street; a rooftop area letter made by a Connecticut-licensed professional engineer concluding that 2.8% of the total rooftop area would be encumbered by of all existing and proposed antennas and equipment; a Maximum Permissible Exposure Study, concluding that all radiofrequency emissions emanating from this site would attain a worst-case 6.855% of the maximum permissible exposure level prescribed by the FCC (well within FCC limitations); and, a visual analysis with photographs of the existing site and photosimulations of the proposed facility, which demonstrated that the proposed facility would have little to no discernable visual impact. 55. Below in Figure 1 is a photograph of the rooftop of the building at 278

Main Street, evidencing that the rooftop is replete with other carriers antennas and equipment. 56. Below in Figure 2 is a photosimulation of the rooftop with AT&Ts

proposed facility, which depicts the location and minimal visibility of AT&Ts proposed antennas, which would be enclosed in textured walls that would be painted to match the brick faade of the building, each enclosure being approximately the same dimensions.

16

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 17 of 46

Figure 1

Figure 2

17

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 18 of 46

57.

The Commission commenced a public hearing on AT&Ts application on

or about October 11, 2011, at which AT&T presented its application together with supporting testimony from an AT&T radiofrequency engineer, a Connecticut-licensed professional engineer and two independent radiofrequency analysts from SAI Communications, Inc. 58. Before the Commission opened the public hearing, the Assistant City

Planner provided AT&Ts counsel with a document that the Commission had, apparently (and impermissibly), accepted into the record before commencing the public hearing, which consisted of a letter by a local attorney dated January 2010 (a full year and nine months before AT&T had even submitted its application for a Special Permit) and, on information and belief, was prepared in opposition to a completely separate application for a Special Permit submitted by another wireless carrier in late 2009 and denied by the Commission in early 2010. 59. At the public hearing on October 11, 2011, the Commissioners proposed

to reject AT&Ts application for a Special Permit to site its proposed facility at 278 Main Street (out of hand and without consideration on its merits) because the building is listed on the National Register of Historic Places despite Section 48.5.1(e) of the Regulations, entitled Design Criteria (but having nothing to do with design), which provides: An antenna may not be located on a building or structure that is listed on an historic register or within an historic district, except by special permit from the Planning and Zoning Commission. (Emphasis added). The Commissioners made statements on the record to the effect that this Section is prohibitory (against a plain reading of the Section, which is clearly permissive). 60. At the public hearing on October 11, 2011, the Commissioners also

insisted on questioning AT&Ts witnesses about the technological specifications of Verizons facility and emergency generator, which was totally outside the scope of AT&Ts application

18

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 19 of 46

and indicated that the Commission was unable (or unwilling) to address AT&Ts application on its own merits. Public comment at the October 11th hearing focused almost exclusively and at length on the Verizon facility including noise complaints ostensibly pertaining to Verizons emergency electricity generator and addressing long-standing public grievances with the Planning and Zoning Commission that predated AT&Ts application by years. 61. On October 25, 2011, AT&T made a supplemental submission to the

Commission to correct a self-identified inconsistency in its original submission (which had proposed six-foot-tall antennas instead of four-foot-tall antennas, which would comply with Section 48.5.1(b) of the Regulations) and to address the concerns and furnish information extraneous to AT&Ts application and proposed facility that the Commission had raised and requested at the initial public hearing on October 11th, which consisted of: drawings made by a Connecticut-licensed professional engineer that identified the location and size of the existing facilities (and individual pieces of equipment) maintained by other carriers at 278 Main Street and the modified dimensional specifications of AT&Ts proposed antennas and concomitant reduction in overall height of AT&Ts proposed facility; a specification sheet for KMW model AM-X-CD-14-65-00T-RET (four-foot-tall) antennas, which, on information and belief, are manufactured in South Korea and imported into the United States for use in AT&Ts wireless network; a revised Maximum Permissible (Radiofrequency Emissions) Exposure Study (reflecting the utilization of the four-foot-tall antennas); a table of AT&Ts proposed equipment and floor area to be occupied by that equipment; and, a letter from a Connecticut-licensed professional engineer stating that AT&Ts modified proposal would comply with the Citys rooftop area coverage limitations. 62. AT&Ts October 25, 2011 supplemental submission also objected to and

19

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 20 of 46

provided legal support for striking the evidence impermissibly accepted into the record by the Commission before the commencement of the public hearing on October 11, 2011. 63. At the continued public hearing on October 25, 2011, the Commission had

abandoned its reliance on the historic status of the building at 278 Main Street as a potential basis to deny AT&Ts application and instead shifted its focus to Section 48.6.11, the Citys (overly) restrictive equipment building/floor area regulation entitled Equipment Building Size which provides: The related unmanned equipment and/or buildings shall not contain more than twenty (20) square feet of gross floor area or be more than four (4) feet in height. AT&Ts counsel interpreted this Section to apply only to new stand-alone exterior equipment shelters, and as inapplicable to AT&Ts proposal to locate its essential support equipment within the building. The Chairman rejected this interpretation, noting on the record that AT&T ought to be required (by the City, in contravention of the Telecommunications Act and the United States Constitution) to use the same technology as an unnamed (perhaps nonexistent) telecommunications company that purportedly submitted a special permit application in the past, upon which the Commission had based the equipment size limitations contained in this restrictive, and effectively prohibitive, Section of the Regulations. Testimony from AT&Ts radiofrequency engineer and professional engineer confirmed that it would be physically and technologically impossible for AT&T to comply with the dictate of Section 48.6.11, not to mention unsafe because a service technician likely could not safely maneuver within the confines of the limited area without violating the Occupational Health and Safety Act of 1970 (OSHA). 64. At the continued public hearing on October 25th, the Commissioners

continued to confound AT&Ts application by allowing public comment at length on a zoning enforcement proceeding that was by then pending against Verizons facility at 278 Main Street.

20

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 21 of 46

65.

On November 17, 2011, AT&T made a final supplemental submission to

the Commission, which consisted of a letter from the Connecticut State Historic Preservation Officer, the statutory designee for maintaining and overseeing the National Register of Historic Places program in Connecticut, which issued a legal determination that AT&Ts proposed facility would have no adverse effect upon the historic character of the property at 278 Main Street or any and all other historic properties or districts within the surrounding area, and a Radiofrequency Information Report, prepared by an AT&T radiofrequency engineer, which elaborated upon AT&Ts radiofrequency need in West Haven and the unfair competitive advantage that AT&Ts industry rivals capture by operating wireless facilities at 278 Main Street. 66. At the continued public hearing on November 22, 2011, more than two

months after AT&T had filed its application for a Special Permit and nearly a month-and-a-half after the Commission commenced its public hearing, the Commissioners concocted several new grounds upon which AT&Ts application supposedly did not comply with the Regulations, the only germane provision being Section 48.3 of the Regulations, which expresses a first-priority siting preference for municipal-owned buildings or property, thereby providing a fallacious basis for the Commission to charge that AT&T had not fully or fairly considered siting its facility down the street from 278 Main Street at West Haven City Hall at 355 Main Street despite the substantial evidence in the record to the contrary. 67. As of the November 22nd continued public hearing, it became crystal clear

to AT&T that no matter what hoop it agreed to jump through in order to elicit the Citys fair consideration of what was in all respects a code-complaint application (save for the illegal equipment building regulation of Section 48.6.11 as interpreted by the Commission) the

21

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 22 of 46

Commission had its own agenda. 68. In this regard, notwithstanding that AT&T had satisfied the only salient

issue raised by the Commission at the previous hearings (the historic status of the building at 278 Main Street), AT&Ts representatives were met by the Commission with a whole new, apparently impromptu list of reasons as to why the Commissioners felt the application should be denied none of which were rooted anywhere in the record, or in reality for that matter. 69. At the continued public hearing on November 22nd, AT&Ts

radiofrequency engineer testified, and AT&Ts site-search summary submitted with AT&Ts application on or about September 9, 2011, also reflected, that AT&T had considered City Hall as a potential site, but that the building was not tall enough in relation to surrounding structures and topography (referenced in radiofrequency engineering parlance as clutter) to propagate AT&Ts radiofrequency signal to the area identified as needing radiofrequency coverage as effectively as the proposed facility. 70. At the continued public hearing on November 22nd, Commissioners also

disingenuously posited that AT&T could be permitted to construct a twenty-foot telecommunications tower atop the City Hall building if it abandoned its application and lease at 278 Main Street and undertook the time, expense, delay and risk of uncertainty to negotiate with the City and file a new application for a Special Permit, thereby becoming ensnared in the Special Permit process anew, in total disregard of the Commissions application of the screening provisions of Sections 48.6.12 and 48.6.13 and the adverse visual impact that such a tower would have on the West Haven Green, which is a historic district listed on the National Register of Historic Places, especially when weighed in contrast to AT&Ts proposal for 278 Main Street, which the State Historic Preservation Officer had already approved. AT&Ts

22

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 23 of 46

counsel stated that even if this far-flung dilatory exercise in hypothetical parley were possible (which counsel emphatically stated was highly unlikely), AT&T would nevertheless remain incapable of complying with Section 48.6.11 as interpreted by the Commission, the Citys restrictive equipment building regulation. 71. During the continued public hearing on November 22nd, the

Commissioners comments and questions further reflected a pattern of obfuscation and obstruction, requiring that in order to comply with Section 48.6.13 of the Regulations, AT&T, in coming to the penthouse rooftop at 278 Main Street, would be required to screen every single one of the thirty (!) antennas and every single piece of the various associated equipment of each of its competitors, in derogation of AT&Ts competitors leasehold rights and the law of trespass. 72. During the continued public hearing on November 22nd, the Commission

also signaled its intent to deny AT&Ts application for a Special Permit based on the nonsensical criteria contained in Section 48.7 of the Regulations, relating to views, corridors, vistas (at best, arguably relating to the mixed commercial/residential character of the area surrounding 278 Main Street) and the potential for preserving the pre-existing character of the site, despite the visual analysis and several photosimulations in the record (e.g., Figures 1 & 2 above) and the determination of the State Historic Preservation Officer, all of which indicated that AT&Ts proposed facility complied with this requirement and would have little-to-no aesthetic impact. Furthermore, the Commissioners did not identify a single scenic view or quality beyond the general aesthetics of a typical rooftop that would (with a straight face) provide any rational justification for their concerns. 73. The Chairman predictably then moved to deny AT&Ts application on the

23

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 24 of 46

purported bases that AT&Ts application did not comply with Telecommunications Regulation Section 48.6.12 (the screening requirement for new facilities), Section 48.6.13 (the most reasonable interpretation of which requires the screening of existing facilities), Section 48.6.11 (the prohibitory equipment building size limitation), Section 48.3 (the codified first-priority siting preference for City-owned buildings and properties), Section 48.5.1 (which subsection the Commission relied upon remains unclear as a specific subsection was not referenced in its Certificate of Decision), and Section 48.7 (requiring that an application for a Special Permit for a telecommunications facility mitigate visual impact, preserve views, corridors, vistas and have a potential for preserving pre-existing character of the site). The Bad Faith And Unsupportable Vote To Deny 74. After a vote to close the public hearing, and the Chairmans motion to

deny AT&Ts application, the Commissioners failed to engage in any discussion of the grounds for the motion (had they bothered to in any meaningful, honest way they would have inevitably concluded that the grounds raised were baseless). 75. Without any further substantive discussion, comment, explanation or

reference to the record or any evidence, the Commission voted to deny AT&Ts application, without stating or addressing any of the proposed grounds for denial or stating the reasons for the denial on the record, in violation of the Telecommunications Act and Connecticut law. 76. The Decision was subsequently issued by certified mail to AT&Ts

counsel postmarked on November 29th, which Decision contained absolutely no reference to any supporting evidence or record basis for the denial (because none exists) and instead asserted in purely conclusory fashion that AT&T did not comply with the Sections referenced above in Paragraph 73 when the Chairman made his motion.

24

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 25 of 46

77.

The Decision violates the law in several respects. In violation of the

Telecommunications Act: (a) it unreasonably discriminates against AT&T as compared with the adjacent Verizon, T-Mobile, Sprint/Nextel and Clearwire facilities, all of which support antennas without physical screening and are not subject to the prohibitory equipment building regulation; (b) it exemplifies the Citys general policy against personal wireless telecommunications facilities and effectively prohibits the provision of wireless services; (c) it is unsupported by any evidence, let alone substantial evidence, since AT&Ts submissions and comments were the only evidence pertaining to this application in the record, and the reasons stated for the denial were totally belied by AT&Ts submission (this also demonstrates why the Decision violates Connecticut law as well); and (d) it relies on Section 48.6.11 which is invalid and preempted by the Telecommunications Act because the space limitations within that provision effectively prohibit the provision of wireless services. 78. The Decision violates the due process guarantee of the Fourteenth

Amendment to the United States Constitution, in that it impermissibly relies on the completely vague and unintelligible screening provisions, Sections 48.6.12 and 48.6.13, which offer absolutely no guidance to an applicant as to what constitutes screening, as illustrated by the fact that AT&T offered to completely shield the antennas and submitted several photosimulations and even brought a sample of the proposed enclosure to the public hearings, but the Commission instead pushed its preference for AT&T to construct a twenty-foot tall tower on City Hall, thus indicating that the Commission apparently interprets screening to mean whatever it wants to mean depending on whether it feels like granting an application. 79. The Decision violates the Commerce Clause of Article 1, Section 8,

Clause 3, of the United States Constitution, by relying on Section 48.6.11, which imposes an

25

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 26 of 46

undue burden on interstate commerce that is clearly excessive in relation to the putative local benefit. 80. The City also precludes AT&T from seeking relief from these provisions

based on Section 48.10, which prohibits the issuance of a variance and is invalid per se because it limits the statutory authority of the Zoning Board of Appeals. 81. As a direct and proximate result of the Citys actions as complained of

herein, AT&T has been deprived of its lawful right to install its needed equipment and antennas and AT&T is thus entitled to injunctive relief requiring the granting of all necessary approvals for the construction of AT&Ts wireless facility as proposed in AT&Ts application for a Special Permit, as well as a judicial declaration striking Sections 48.3, 48.6.11, 48.6.12, 48.6.13 and 48.10 of the Zoning Regulations. FIRST CLAIM FOR RELIEF Violation Of Section 704 Of The Telecommunications Act: Unlawful Discrimination 82. forth herein. 83. Section 704(b) of the Act (47 USC 332(c)(7)(B)(i)(I)) provides that local AT&T repeats, re-avers and re-alleges all prior allegations as if fully set

regulations shall not unreasonably discriminate among providers of functionally equivalent services. 84. AT&T sought a Special Permit from the Commission to install a wireless

facility on the penthouse rooftop of the building at 278 Main Street in West Haven (and complied with the Citys Zoning Regulations to the extent technologically and legally possible) where AT&Ts industry competitors, Verizon, T-Mobile, Sprint/Nextel and Clearwire operate their own independent facilities. 85. Verizon, T-Mobile, Sprint/Nextel and Clearwire are providers of

26

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 27 of 46

functionally equivalent services personal wireless services within West Haven utilizing functionally equivalent equipment and technology with designs that are functionally equivalent to, and practically indecipherable from, the designs already in place for Verizon, T-Mobile and Sprint/Nextel, which are visible and maintain no physical screening, and which rely on the same type (including with respect to size and shape) of equipment utilized by AT&T. The denial of AT&Ts application therefore violates the Telecommunications Acts mandate that allows for competitors to operate on equal footing and free from unreasonable discrimination by local agencies, and frustrates the purpose of the Telecommunications Act by unreasonably and discriminatorily preventing AT&T from competing in the market for the provision of wireless services. 86. The Citys selective treatment of AT&T in denying its application for a

Special Permit to construct a wireless facility next to the antennas operated by Verizon, TMobile, Sprint/Nextel and Clearwire on the same rooftop, which antennas provide functionally equivalent wireless services, constitutes unreasonable discrimination in violation of Section 332(c)(7)(B)(i)(I) of the Telecommunications Act. 87. The Commissions application of Section 48.6.13 of the Zoning

Regulations further unreasonably discriminates against AT&T because such an interpretation would unfairly burden AT&T with the responsibility of bringing its competitors legally protected existing nonconformities into compliance with the Zoning Regulations at a substantial and unreasonable cost to AT&T, and in violation of the law of trespass and AT&Ts competitors leasehold rights. 88. AT&T is thus entitled to a judgment and an order striking Section 48.6.13

from the Zoning Regulations and compelling the City and its agents to issue a Special Permit to

27

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 28 of 46

AT&T for the construction of AT&Ts wireless facility as proposed in its application for a Special Permit, and compelling the City and its agents to issue any other required approval and/or permits, including, but not limited to, a building permit by the Building Inspector to the extent required by local law. SECOND CLAIM FOR RELIEF Violation Of Section 704 Of The Telecommunications Act: Effective Prohibition 89. forth herein. 90. Section 332(c)(7)(B)(i)(II) of the Telecommunications Act, as amended by AT&T repeats, re-avers and re-alleges all prior allegations as if fully set

Section 704, 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. 91. In violation of this Section, the Decision effectively prohibits AT&T from

fulfilling a need for wireless service to this area of West Haven, for which AT&T demonstrated a significant radiofrequency need and proposed the least intrusive (and, to the extent legally and technologically possible, code-compliant) means of fulfilling that need and because the Commissions Decision evidences a pattern of successive denials of all personal wireless service providers from obtaining a requisite Special Permit to construct new facilities or to maintain existing wireless facilities in West Haven such that the Zoning Regulations and the implementation thereof amounts to a general ban or policy against wireless services in West Haven. 92. The Commissioners discussion on the record demonstrates the Citys

intent to effectively prohibit wireless services as evidenced by the fact that individual

28

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 29 of 46

Commissioners indicated that their review of AT&Ts application for a Special Permit was pro forma and that, essentially, the City had enough wireless facilities. This sentiment is codified in Section 48.1, which provides the purpose of the Telecommunications Regulation as being, in part, to reduce the number of antennas and wireless site(s) needed in the future: The future is now. 93. The Commissions decision to grant a Special Permit to the Regional

Water Authority to erect an un-screened (applying any rational interpretation of the screening provisions of Section 48.6.12 and 48.6.13) telecommunications tower atop a water tower in a residential district (which is expressly prohibited by Section 48.3) subject to the condition that the tower never be made available for the provision of personal wireless services further evidences that the City arbitrarily and capriciously applies the Zoning Regulations to effectively prohibit wireless carriers from providing service in West Haven. 94. AT&T is thus entitled to a judgment and an order compelling the City and

its agents to issue a Special Permit to AT&T for the construction of AT&Ts wireless facility as proposed in its application for a Special Permit, and compelling the City and its agents to issue any other required approval and/or permits, including, but not limited to, a building permit by the Building Inspector to the extent required by local law. THIRD CLAIM FOR RELIEF Violation Of Section 704 Of The Telecommunications Act: Insubstantial Evidence 95. forth herein. 96. Section 332(c)(7)(B)(iii) of the Telecommunications Act, as amended by AT&T repeats, re-avers and re-alleges all prior allegations as if fully set

Section 704, provides that [a]ny decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall

29

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 30 of 46

be in writing and supported by substantial evidence contained in a written record. 97. In violation of this Section, the Commissions Decision does not cite any

evidence in the record whatsoever (nor does any such evidence exist in the record) to demonstrate in any way how or why AT&Ts application warranted a denial and, therefore, is not a decision or based on substantial evidence as contemplated by 332(c)(7)(B)(iii). 98. While certain Commissioners opined in hearings that the proposal

contained in AT&Ts application had an adverse visual impact, or that AT&Ts application somehow had a negative impact on the preexisting character of the building, or supposedly had not complied with the Zoning Regulations unconstitutionally vague and indecipherable screening requirements, each of these conclusions were patently false and completely unsubstantiated on this record, which record contained no relevant evidence other than the submissions by AT&T demonstrating full compliance with the application requirements. There is, therefore, no rational explanation for the conclusions reached by the City. 99. To the extent that the City tries to justify its unsupportable denial by

reference to its bad faith reliance on Section 48.6.11 of the Zoning Regulations relating to the size and footprint of AT&Ts equipment, such reliance is unlawful because Section 48.6.11 is void both on its face and as applied, in that the prohibitory spatial limitations imposed by the Citys Regulation and by the Commission in this particular instance effectively prohibit the provision of wireless services in violation of the Telecommunications Act because the space and size requirements for the equipment to work are in excess of the narrow and arbitrary limitations imposed by the City. 100. On this basis, and on the basis that AT&T proposed to satisfy the

screening provisions of the Regulations (no matter which of the possible interpretations of

30

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 31 of 46

screening the Commission subjectively decided to apply) by shielding its own facility from view, the bases for the denial cited in the Decision were purely pretextual and unsupported by any evidence, let alone substantial evidence, in the written record, conclusively establishing that the denial was in violation of Section 332(c)(7)(B)(iii) of the Telecommunications Act. 101. AT&T is thus entitled to a judgment and an order compelling the City and

its agents to issue a Special Permit to AT&T for the construction of AT&Ts wireless telecommunications facility as proposed in its application for a Special Permit, and compelling the City and its agents to issue any other required approval and/or permits, including, but not limited to, a building permit by the Building Inspector to the extent required by local law. FOURTH CLAIM FOR RELIEF Violation Of Section 704 Of The Telecommunications Act: Effective Prohibition/Striking Of Section 48.6.11 Of The Zoning Regulations 102. forth herein. 103. Section 332(c)(7)(B)(i)(II) of the Communications Act, as amended by AT&T repeats, re-avers and re-alleges all prior allegations as if fully set

Section 704 of the Telecommunications Act, provides in relevant part that 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. 104. Section 48.6.11 of the Zoning Regulations provides: Equipment

Building Size. The related unmanned equipment and/or building(s) shall not contain more than twenty (20) square feet of gross floor area or be more than four (4) feet in height. 105. On its face and as applied Section 48.6.11 must be stricken as violating the

effective prohibition prong of the Telecommunications Act and as preempted by the

31

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 32 of 46

Telecommunications Act and Congresss and the FCCs authority to regulate the field. 106. While the Telecommunications Act reserves to municipalities certain

limited rights in the context of zoning regulation, such rights do not extend to the regulation of a wireless carriers technological and operational matters, or to legislating a preference for certain technologies not in existence. 107. Section 48.6.11 of the Zoning Regulations, which Section, as part of

Section 48, titled Telecommunications Regulation solely applies to the regulation of telecommunications siting issues, impermissibly regulates technological and operational matters by imposing mandatory and arbitrary dictates as to the dimensions and space of the equipment that may be used by a wireless carrier in this case, AT&T. 108. As a technological and operational matter, AT&Ts wireless facility would

not be able to function if it were compelled to comply with this arbitrary provision because AT&T cannot fit its equipment in the arbitrarily small structure referenced in the Citys regulation, and AT&Ts equipment cannot fit in or operate within the arbitrary twenty squarefoot floor area requirement. 109. Under the doctrine of federal preemption, where, as here, Congress and

the FCC regulate the field, the City plainly may not impose separate, stricter requirements on AT&Ts operational and technological needs than those set forth by Congress and the FCC. 110. AT&Ts proposed wireless facility is in full technological compliance

with FCC standards, and therefore, the City has no right to require by legislation that AT&T comply with the Citys limitations on space requirements for AT&Ts equipment, nor did the City have a right to deny AT&Ts application on the premise that AT&Ts equipment room and proposed equipment did not comply with the Citys space requirements, as these requirements

32

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 33 of 46

are preempted and, if enforced, would effectively prohibit AT&T, and any other wireless carrier from providing wireless services in West Haven, including the area surrounding the proposed site, which includes the downtown area of West Haven. 111. On its face and as applied, Section 48.6.11 thus violates Section

332(c)(7)(B)(i)(II) of the Telecommunications Act. 112. AT&T is thus entitled to a judgment and order striking Section 48.6.11 of

the Zoning Regulations and compelling the City and its agents to issue a Special Permit to construct AT&Ts wireless facility as proposed in its application for Special Permit, and compelling the City and its agents to issue any other required approval and/or permits, including, but not limited to, a building permit by the Building Inspector to the extent required by local law. FIFTH CLAIM FOR RELIEF Violation Of The Due Process Clause Of The Fourteenth Amendment To The United States Constitution/Striking Of Sections 48.6.12 and 48.6.13 Of The Zoning Regulations 113. forth herein. 114. Pursuant to the Due Process Clause of the Fourteenth Amendment of the AT&T repeats, re-avers and re-alleges all prior allegations as if fully set

United States Constitution, a governmental entity is precluded from enacting and enforcing legislation that is unconstitutionally vague, such as where the legislative prohibitions are not clearly defined, or where there is a lack of explicit standards that would otherwise serve to prevent arbitrary and discriminatory enforcement, or where the legislation is so general as to be unintelligible to any reasonable owner of property. 115. In this case, Sections 48.6.12 and 48.6.13 of the Zoning Regulations

wholly fail under the vagueness doctrine, with the result being that, in the absence of establishing clear definitions or explicit standards, these provisions impermissibly delegate to the

33

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 34 of 46

Commission the power to make decisions on an ad hoc and subjective basis, with the attendant dangers of arbitrary, discriminatory and illegal application (forcing an applicant to undertake to screen a competitors facility in derogation of leasehold rights and the law of trespass) which dangers are amply illustrated here. 116. Section 48.6.12 of the Zoning Regulations provides: Visual Screening.

Antennas added to an existing facility shall be visually screened so that the antennas are not visible from surrounding streets. 117. Existing Facilities. Section 48.6.13 of the Zoning Regulations provides: Additions to When antennas are added to existing facilities which are not visually

screened from surrounding streets, the entire facility and antennas shall be screened so as to assure that all antennas are not visible from surrounding streets. 118. Section 48.3 provides: Wireless sites shall be located in the following

order of preference . . . (3) on new towers on bare ground . . . b. without visual mitigation in business and industrial districts. 119. Thus, when read in the context of the Citys Zoning Regulations, these

mandates are susceptible to different interpretations which, as this case (especially when juxtaposed with the contemporaneous granting of a special permit to the Regional Water Authority to construct a communications tower atop a water tank in a residential zone, without any requirement that it be shielded from view) demonstrates, are dictated by the whims of the Commission i.e., by whether the Commission wants to approve or deny the application at hand regardless of what action a carrier takes to comply with these unintelligible mandates. 120. That these provisions are tailored to provide absolute and unfettered

discretion to the Commissioners to apply these provisions in any manner that suits the

34

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 35 of 46

Commissions subjective interest is confirmed by the absence of any guidance within the Zoning Regulations that would ground the Commissioners in their analysis, as Section 48.2 of the Zoning Regulations, which contains definitions, is silent on the meaning of screen. 121. The lack of any such guideline essentially makes these provisions

susceptible to several competing as well as absurd interpretations. 122. On one hand, as AT&T argued, screening could be interpreted to mean

that the antennas and equipment located at the rooftop be shielded completely within enclosures textured and painted to match the brick faade of the building from view from the surrounding streets (notably there is also no guideline as to what constitutes surrounding streets and whether that term references a surrounding city block, limited access highways such as I-95, or all streets in the City where the antennas could be seen on the horizon). On the other hand, screening could mean the physical covering-up of the entire rooftop, and because the provisions give no guidance as to whatever meaning should be employed, the Commission is free to simply pick one that suits its own subjective agenda. 123. In the instant case, the Commission clearly used the vagueness of these

provisions to advance an agenda against personal wireless service providers. 124. AT&Ts initial application materials, submitted September 9, 2011,

proposed to screen only that which AT&T legally had the right or ability to screen, its own facility. Nevertheless, the Commission lay in wait until November 22, 2011 to determine that AT&Ts proposal was inadequate because it somehow was still not in compliance with the screening requirements. 125. As illustrated on this record, the screening provisions gave AT&T and

its representatives no reasonable opportunity to know what was actually prohibited or required,

35

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 36 of 46

nor did the screening provisions provide explicit standards which would govern the Commissions application of these provisions. The Commission, therefore, felt free to (and did) manipulate its interpretation of these provisions so that on the eve of issuing its denial, the Commission could (and did) insist that AT&T somehow did not comply with the screening requirements, and the lack of any explicit guidelines, standards or definitions in the screening provisions gave the Commission cover to do what it wanted to do which in this case was to deny AT&Ts application. 126. Thus, Sections 48.6.12 and 48.6.13 of the Zoning Regulations, on their

face, should be stricken as unconstitutionally vague, and Sections 48.6.12 and 48.6.13, which were cited in the Decision as the provisions with which AT&T supposedly did not comply with, are unconstitutionally vague as applied. 127. AT&T is thus entitled to a judgment and order striking Sections 48.6.12

and 48.6.13 of the Zoning Regulations and compelling the City and its agents to issue a Special Permit to permit AT&T to construct a wireless facility as proposed in its application for a Special Permit, and compelling the City and its agents to issue any other required approval and/or permits, including, but not limited to, a building permit by the Building Inspector to the extent required by local law. SIXTH CLAIM FOR RELIEF Striking Section 48.6.11 Of The Zoning Regulations As A Violation Of The Commerce Clause Of The United States Constitution 128. forth herein. 129. Pursuant to the Commerce Clause of Article 1, Section 8, Clause 3 of the AT&T repeats, re-avers and re-alleges all prior allegations as if fully set

United States Constitution, a municipal entity is precluded by operation of the Supremacy Clause

36

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 37 of 46

of Article VI, Clause 2, from enacting and enforcing legislation or regulations that discriminate or unduly burden interstate commerce over which Congress has exercised its dominion (in this case, the Telecommunications Act), such as where a facially neutral municipal regulation directed toward a legitimate area of local concern imposes an undue burden on interstate commerce that is clearly excessive in relation to the putative local benefit, such that the regulation is rendered unreasonable or irrational. 130. Section 48.6.11 of the Zoning Regulations prohibits AT&T and similar

wireless carriers from installing and/or operating unmanned equipment and/or building(s) that contain more than twenty (20) square feet of gross floor area or are more than four (4) feet in height, where Section 2.2 of the Zoning Regulations defines gross floor area as [t]he sum of the gross horizontal areas of the several floors of a building, measured from the exterior faces of exterior walls . . . excluding floor space permanently devoted to mechanical equipment used in the operation and maintenance of the building . . . . such that the putative benefit of Section 48.6.11 is to reduce the aesthetic impact of wireless equipment and/or associated buildings within the City, yet the effect of Section 48.6.11 is to permit the City to dictate its unreasonable and irrational technological preferences to the designers, developers, producers, manufacturers and users of such technology and equipment in the several states and around the world in contravention of the Commerce Clause of Article 1, Section 8, the Telecommunications Act and FCC regulations. 131. AT&Ts wireless equipment is designed, developed, produced and

manufactured by companies in the several states and around the world to be standardized and interchangeable with existing equipment in order to achieve cost-efficient rapid deployment of service at wireless facilities nationwide, consistent with AT&Ts FCC licenses and federal

37

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 38 of 46

mandate, including with respect to the facility at issue in this action. 132. The equipment proposed in AT&Ts application encumbers more than

twenty (20) square feet of gross floor area by design, as prohibited by Section 48.6.11 of the Zoning Regulations, and AT&T is not aware of and does not utilize alternative equipment that would meet the requirement of Section 48.6.11, such that Section 48.6.11 requires AT&T and the designers, developers, producers and manufacturers of telecommunications equipment in the several states and around the world to incur potentially prohibitive costs (especially if any municipality could randomly dictate its own space requirements by mirroring West Havens approach) of creating tailor-made West Haven code-compliant equipment, to forego utilizing available equipment, and to stall the deployment of wireless service as required by FCC license and federal mandate, and unless and until AT&T could procure such equipment to fit the arbitrary space requirements (which equipment, on information and belief, does not exist and may not be possible to manufacture), AT&T, and every other carrier (represented on the rooftop at 278 Main Street and operating equipment which, on information and belief, cannot be in compliance with Section 48.6.11) would continue to be entirely prohibited form siting wireless facilities, altering or modifying existing wireless facilities and providing service in the City, all in the name of satisfying a local governmental interest that could be adequately advanced and protected by less restrictive and nondiscriminatory means. 133. The proposed equipment room within the building at 278 Main Street

would necessarily need to occupy more gross floor area and height than permitted by Section 48.6.11 of the Zoning Regulations, such that AT&T and the developers, designers, producers and manufacturers of such equipment in the several states and around the world would be force to undergo the costly process of designing an entirely new code-complaint equipment and/or

38

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 39 of 46

equipment shelter (if such a design is even possible) that would be incompatible with extant wireless equipment and technology and may be incompatible with the applicable federal and state laws regulating the health, safety and welfare of workers, including the Occupational Health and Safety Act of 1970 (OSHA) (as it may not even be possible for a maintenance worker to enter such an enclosed space based on OSHA standards), in order to satisfy a local governmental interest that could be adequately advanced and protected by less restrictive nondiscriminatory means. 134. AT&T is thus entitled to a judgment and order striking Section 48.6.11 of

the Zoning Regulations and compelling the City and its agents to issue a Special Permit to install a wireless telecommunications facility as proposed in AT&Ts application for a Special Permit, and compelling the City and its agents to issue any other required approval and/or permits, including, but not limited to, a building permit by the Building Inspector to the extent required by local law. SEVENTH CLAIM FOR RELIEF Violation Of Connecticut General Statutes 8-6(a): Striking Section 48.10 Of The Zoning Regulations As Invalid Per Se 135. forth herein. 136. Section 48.10 of the Zoning Regulations provides: No Board, AT&T repeats, re-avers and re-alleges all prior allegations as if fully set

Commission, Agency or Department shall grant any variances of this section of the Zoning Regulations. 137. The section of the Zoning Regulations being referred to in Section 48.10

is the Section that exclusively addresses regulation of telecommunications facilities. 138. Connecticut General Statutes 8-6(a) provides: The zoning board of

39

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 40 of 46

appeals shall have the following powers and duties: (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter . . . (3) to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured, provided that the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed. 139. Section 48.10 constitutes an impermissible limitation of the powers and

duties of the Zoning Board of Appeals in this instance (and all City agencies and boards in general), and thereby conflicts with and is preempted by the Connecticut General Assemblys law conferring authority to a municipal agency to determine and vary the application of zoning bylaws, ordinances or regulations without exception. 140. 141. Section 48.10 exceeds the Citys authority and is therefore invalid per se. AT&T was precluded by law from even attempting to seek a variance

from the other illegal provisions of the Zoning Regulations discussed herein by virtue of Section 48.10; and, therefore, any attempt to exhaust administrative remedies prior to bringing this action would have been futile and only unnecessarily resulted in further judicial proceedings beyond the instant action.

40

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 41 of 46

142.

AT&T is thus entitled to a judgment and order striking Section 48.10 of

the Zoning Regulations. EIGHTH CLAIM FOR RELIEF For Violation OF Connecticut General Statutes 8-3c 143. forth herein. 144. Pursuant to Connecticut law, the City has no discretion or authority to AT&T repeats, re-avers and re-alleges all prior allegations as if fully set

deny a Special Permit application if it satisfies the Special Permit criteria. 145. The Citys decision on an application must be invalidated if not supported

by substantial evidence in the record. 146. Connecticut General Statutes 8-3c(b) provides: Whenever a

commission grants or denies a special permit or special exception, it shall state upon its records the reason for its decision. 147. Section 98.2.1 of the Zoning Regulations further provides: Finding. In

making its decision the Board or Commission shall state upon the record the reasons therefore, and shall make such specific findings as may be required by these Regulations that such application is not detrimental to either the community at large or the surrounding neighborhood. 148. The City violated these laws by failing to support its Decision with any

specific findings (because there is no record evidence to support the denial) and by issuing a denial that was not supported by any evidence, let alone substantial evidence in the record and by failing to publish notice of the Decision as required by General Statutes 8-7d(g). 149. The Citys finding that AT&T supposedly did not comply with its

screening requirements is simply false, solely to the extent that the screening requirements could be upheld.

41

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 42 of 46

150.

To the extent that the City denied the application based on its reliance on

Section 48.6.11, as with its reliance on Section 48.6.12, the City cannot legally deny AT&Ts application based on those invalid laws. 151. The Decision thus lacked the required findings and did not rely on any

evidence, let alone substantial evidence, in the record. 152. AT&T is entitled to a judgment and order compelling the City and its

agents to issue a Special Permit to AT&T to construct a wireless facility as proposed in its application for a Special Permit, and compelling the City and its agents to issue any other required approval and/or permits, including, but not limited to, a building permit by the Building Inspector to the extent required by local law. NINTH CLAIM FOR RELIEF Violation Of Connecticut General Statutes 8-2: Striking Section 48.3 of the Zoning Regulations As Invalid Per Se

153. forth herein. 154.

AT&T restates re-avers and re-alleges all prior allegations as if fully set

General Statutes 8-2(a) provides, in part: The zoning commission of

each city, town or borough is authorized to regulate, within the limits of such municipality, the height, number of stories and size of buildings and other structures; the percentage of the area of the lot that may be occupied; the size of yards, courts and other open spaces; the density of population and the location and use of buildings, structures and land for trade, industry, residence or other purposes, including water-dependent uses . . . and the height, size and location of advertising signs and billboards. . . . Such zoning commission may divide the municipality into districts of such number, shape and area as may be best suited to carry out the purposes of this chapter; and, within such districts, it may regulate the erection, construction, reconstruction,

42

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 43 of 46

alteration or use of buildings or structures and the use of land. Any city, town or borough which adopts the provisions of this chapter may, by vote of its legislative body, exempt municipal property from the regulations prescribed by the zoning commission of such city, town or borough; but unless it is so voted municipal property shall be subject to such regulations. . . . 155. Section 48.3 of the Zoning Regulations provides: Site Selection Policies.

Wireless sites shall be located in the following order of preference: 1. On locations owned by the City of West Haven, land or buildings. 2. In locations where the existing topography, vegetation, buildings or other structures provide the greatest amount of screening. 3. On new towers on bare ground in industrial districts: a. With visual mitigation. B. Without visual mitigation in business and industrial districts. 4. In Residential Districts: Not Permitted. 156. With respect to use for the transmitting of wireless services, Section 48.3

of the Zoning Regulations establishes a first-priority siting preference for municipal-owned property or buildings. 157. AT&Ts proposed use of the rooftop of the building at 278 Main Street is

not a municipal use for which a preference for municipal property may be valid under Connecticut law. 158. The first-priority preference established by Section 48.3, therefore, cannot

be enforced by the Planning and Zoning Commission because such a preference is outside the authority conveyed to the Commission by General Statutes 8-2, which authority is in derogation of common law property rights and should be construed against the City. 159. AT&T is thus entitled to a judgment and order striking Section 48.3 of the

Zoning Regulations and compelling the City and its agents to issue a Special Permit to AT&T to construct a wireless facility as proposed in its application for a Special Permit, and compelling

43

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 44 of 46

the City and its agents to issue any other required approval and/or permits, including, but not limited to, a building permit by the Building Inspector to the extent required by local law. WHEREFORE, AT&T respectfully demands judgment of this Court on its Claims for Relief as follows: 1. On the First Claim For Relief, a judgment and an order striking Section

48.6.13 from the Regulations and compelling the City and its agents to issue a Special Permit to AT&T for the construction of AT&Ts wireless facility as proposed in its application for a Special Permit, and compelling the City and its agents to issue any other required approval and/or permits, including, but not limited to, a building permit by the Building Inspector to the extent required by local law. 2. On the Second Claim For Relief, a judgment and an order compelling the

City and its agents to issue a Special Permit to AT&T for the construction of AT&Ts wireless facility as proposed in its application for a Special Permit, and compelling the City and its agents to issue any other required approval and/or permits, including, but not limited to, a building permit by the Building Inspector to the extent required by local law. 3. On the Third Claim For Relief, a judgment and an order compelling the

City and its agents to issue a Special Permit to AT&T for the construction of AT&Ts wireless facility as proposed in its application for a Special Permit, and compelling the City and its agents to issue any other required approval and/or permits, including, but not limited to, a building permit by the Building Inspector to the extent required by local law. 4. On the Fourth Claim For Relief, a judgment and order striking Section

48.6.11 of the Zoning Regulations and compelling the City and its agents to issue a Special Permit to AT&T for the construction of AT&Ts wireless facility as proposed in its application

44

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 45 of 46

for a Special Permit, and compelling the City and its agents to issue any other required approval and/or permits, including, but not limited to, a building permit by the Building Inspector to the extent required by local law. 5. On the Fifth Claim For Relief, a judgment and order striking Sections

48.6.12 and 48.6.13 of the Zoning Regulations and compelling the City and its agents to issue a Special Permit to AT&T for the construction of AT&Ts wireless facility as proposed in its application for a Special Permit, and compelling the City and its agents to issue any other required approval and/or permits, including, but not limited to, a building permit by the Building Inspector to the extent required by local law. 6. On the Sixth Claim For Relief, a judgment and order striking Section

48.6.11 of the Zoning Regulations and compelling the City and its agents to issue a Special Permit to AT&T for the construction of AT&Ts wireless facility as proposed in its application for a Special Permit, and compelling the City and its agents to issue any other required approval and/or permits, including, but not limited to, a building permit by the Building Inspector to the extent required by local law. 7. On the Seventh Claim For Relief, a judgment and order striking Section

48.10 of the Zoning Regulations. 8. On the Eighth Claim For Relief, a judgment and an order compelling the

City and its agents to issue a Special Permit to AT&T for the construction of AT&Ts wireless facility as proposed in its application for a Special Permit, and compelling the City and its agents to issue any other required approval and/or permits, including, but not limited to, a building permit by the Building Inspector to the extent required by local law. 9. On the Ninth Claim For Relief, a judgment and order striking Section 48.3

45

C&F: 1806112.6

Case 3:11-cv-01967-RNC Document 1

Filed 12/20/11 Page 46 of 46