Case4:11-cv-06155-LB Document10 Filed02/06/12 Page1 of 21

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 u Street, Suite 3800 6 44 San Francisco, California 94104-4811 7 Telephone: 415.421.8484 Facsimile: 415.421.8486 8 Attorneys for Defendant 9 City of Albany 10
ION/U. CO RPORATION

11 12 13 14

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, OAKLAND DIVISION

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15 GTE MOBILNET OF CALIFORNIA LIMITED PARTNERSHIP, a California 16 limited partnership d/b/a VERIZON WIREL SS 17 Plaintiff, VS. 18 19 CITY OF ALBANY, 20 21
17

Case No. CV 11-06155 LB ANSWER TO COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTION

Defendant.

Defendant., Cit\ of Albany (the (

ror itselfand

no

other defCndant.

answers the Complaint for Declaratory Judgment and Injunction the - Complaii t
.

?5 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
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Case4:11-cv-06155-LB Document10 Filed02/06/12 Page2 of 21

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. 6 3. The Ordinance speaks for itself. Except as specifically admitted, the

7 City denies the allegations contained in paragraph 3 of the Complaint. 8 4. The Ordinance speaks for itself. Except as specifically admitted, the

9 City denies the allegations contained in paragraph 4 of the Complaint. 10

WATSO NIGER SHON
ATLAW - A PROFESS IONAL C ORPORATION

5.

The Ordinance speaks for itself. The City admits and alleges that it

11 denied an application by Crown Castle, filed on behalf of Verizon Wireless, for a 12 conditional use permit and design review to modify a nonconforming wireless 13 facility located at 423 San Pablo Avenue (the "Existing Facility"). The City has 14 insufficient information or belief to admit or deny the allegations in the third and 15 fourth sentences in paragraph 5 of the Complaint, and on that basis the City denies 16 the allegations in the third and fourth sentences in paragraph 5 of the Complaint. 17 Except as specifically admitted, the City denies the allegations contained in 18 paragraph 5 of the Complaint. 19 6. The City has insufficient information or belief to admit or deny the

20 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 denicc ii leat dni eont...6ned in pw .:1 - ; i1 -111
he
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Case4:11-cv-06155-LB Document10 Filed02/06/12 Page3 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 4 laws governing the authority of the City and the federal government speak for 5 themselves. Except as sped tleally admitted, the City denies the allegations 6 contained in paragraph 8 of the Complaint. 7 9. The reasons for the denial are set forth in Resolution No. 2011-56 and

8 speak for themselves. Statements made by the City's planning staff and outside 9 consultant speak for themselves. Except as specifically admitted, the City denies the allegations contained in paragraph 9 of the Complaint.
ON TI RA RPO CO

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

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8 City denies the allegations contained in paragraph 11 of the Complaint. 19 12. The Ordinance speaks for itself. New York SMSA Ltd. v. Town of

20 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

26 admits and alleLles that a true and correct copy of the denial. Resolution No. 2011
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Case4:11-cv-06155-LB Document10 Filed02/06/12 Page4 of 21

1 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 6 7 8 15. 16. 17. 18. The City admits the allegations in paragraph 15 of the Complaint. The City admits the allegations in paragraph 16 of the Complaint. The City admits the allegations in paragraph 17 of the Complaint. 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.
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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
ORN EY5 AT LA W - APRO

ICH ARDS I WATSO

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.

T he Citv admits the allegations in paragraph 23

lie ( I\ has insullicicrn inhrniatiot or

or the Complaint.
it

on the , hbiect

!mit it

Case4:11-cv-06155-LB Document10 Filed02/06/12 Page5 of 21

1 denial on that ground, denies the allegations in paragraph 24 of the Complaint. 2 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

4 denial on that ground, denies the allegations in paragraph 25 of the Complaint. 5 26. The FCC "build out" requirements speak for themselves. Except as

6 specifically admitted, the City has insufficient information or belief on the subject to 7 permit it to admit or deny the allegations in paragraph 26 of the Complaint and, 8 basing its denial on that ground, denies the allegations in paragraph 26 of the 9 Complaint. 27.
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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

12 MetroPCS. The centerline of those antenna panels is 49 feet high. 13 28. The building permit issued by the City for the Existing Facility speaks

CHARDS I WATSON

14 for itself. The City admits and alleges that the past and present regulations of the 15 California Public Utilities Commission speak for themselves. The City has 16 Insufficient information or belief as to exactly when Verizon Wireless installed the 17 monopole and began operating the Existing Facility and, basing its denial on that 18 ground, denies those allegations. Except as specifically admitted, the City denies the 19 allegations in paragraph 28 of the Complaint. 20 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' 30.
[the Complaint.

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 , tI 2001 . reJL--, l'or Ho! I he ( 'ity admii and

letroPCS rue i 1 i ty dated

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Case4:11-cv-06155-LB Document10 Filed02/06/12 Page6 of 21

admitted, the City denies the allegations contained in paragraph 30 of the Complaint. 2 31. The Radio Acts of 1912 and 1927 speak for themselves. FRC v. Neslon

3 Bros. Bond & i'forigage Co., 289 U.S. 266, 279 (1933) speaks for itself. Except as 4 specifically admitted, the City has insufficient information or belief on the subject to 5 permit it to admit or deny the allegations in paragraph 31 of the Complaint and, 6 basing its denial on that ground, denies the allegations in paragraph 31 of the 7 Complaint.

32.

The Communications Act of 1934 and NBC v. United States, 319 U.S.

9 190, 214 (1943) speak for themselves. Except as specifically admitted, the City has 10 insufficient information or belief on the subject to permit it to admit or deny the
ORN EY S AT LAW - A PRO FESSION ALCORPORATI ON

11 allegations in paragraph 32 of the Complaint and, basing its denial on that ground, 12 denies the allegations in paragraph 32 of the Complaint. 13 33. The rules and regulations promulgated by the FCC speak for

14 themselves. Future Use of FrequencyBand 806-960 MHz, 46 F.C.C.2d 752, 766-67 15 (1974) speaks for itself. Except as specifically admitted, the City has insufficient 16 information or belief on the subject to permit it to admit or deny the allegations in 17 paragraph 33 of the Complaint and, basing its denial on that ground, denies the 18 allegations in paragraph 33 of the Complaint. 19 34. 47 U.S.C. Sections 303 and 309(j) speak for themselves. Except as

20 specifically admitted. the City has insufficient information or belief on the subject to 21 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
flame' ph

or belief' on the subject to permit it to admit or dem thc all ouations

thL C(uhrlaint and hw;in,L.,, its denial that mouH(1 den ie the

iii

Case4:11-cv-06155-LB Document10 Filed02/06/12 Page7 of 21

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 5 ground, denies the allegations in paragraph 36 of the Complaint. 6 37. 47 U.S.C. 332(c)(3)(A), H.R. Rep. No. 103-111(1993), Petition on

7 Behalf of the State of Conn., 10 F.C.C.R. 7025 (1995), and Conn. Dep't of Pub. Util.

8 Control v. FCC, 78 F.3d 842, 845 (2d Cir. 1996) speak for themselves. Except as
9 specifically admitted, the City has insufficient information or belief on the subject to 10 permit it to admit or deny the allegations in paragraph 37 of the Complaint and,
RIC HARDS I WATSONI GERSHON
IO NALCORPO RATI ON

11 basing its denial on that ground, denies the allegations in paragraph 37 of the 12 Complaint. 13 38. The TCA, 110 Stat. 56 (1996), and Verizon Maryland, Inc. v. Pub.

AT L AW - APRO

14 Service Comm 'n of Md., 535 U.S. 635, 638 (2002) speak for themselves. Except as 15 specifically admitted, the City has insufficient information or belief on the subject to 16 permit it to admit or deny the allegations in paragraph 38 of the Complaint and, 17 basing its denial on that ground, denies the allegations in paragraph 38 of the 18 Complaint. 19 39. The City has insufficient information or belief on the subject to permit it

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17.11,4

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
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admitted. the CitN

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Case4:11-cv-06155-LB Document10 Filed02/06/12 Page8 of 21

den ies the allegations in paragraph 41 of the Complaint.

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
0 Li)
IO NALCORPOR ATI O N

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

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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 \

Case4:11-cv-06155-LB Document10 Filed02/06/12 Page9 of 21

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 o
c.r)
LLI cd

11 Complaint. 12 52. The Ordinance speaks for itself. Except as specifically admitted, the

3 jJ City denies the allegations in paragraph 52 of the Complaint. 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 s admitted, the Cit s 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.

lie ( in
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Case4:11-cv-06155-LB Document10 Filed02/06/12 Page10 of 21

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
0
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CORPO AL ON

2 City's building inspector issued a stop work order after observing that new antennas 3 were being installed on the Existing Facility without any City approval or permits. 4 Except as specifically admitted, the City has insufficient information or belief on the 15 subject to permit it to admit or deny the allegations in paragraph 59 of the Complaint 16 and, basing its denial on that ground, denies the allegations in paragraph 59 of the

17 Complaint. 18 60. The City admits and alleges that on October 14, 2010, Verizon Wireless

19 submitted revised plans to the City and that the plans speak for themselves. The City 20 admits and alleges that on October 26, 2010, the Planning and Zoning Commission 21 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 25 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

3,

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Case4:11-cv-06155-LB Document10 Filed02/06/12 Page11 of 21

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.
SI ONALCOR PORATION

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, 16 denies the allegations in paragraph 63 of the Complaint. 17 64. The City admits and alleges that the Planning and Zoning Commission

:04 0

1:14

18 held a public hearing on the Application on July 26, 2011. The staff report for the 19 hearing speaks for itself. The Commission's decision denying the Application is 20 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

23 -

(.

24 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 Page12 of 21

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
SI ON AL CO RPORA TION

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 \7 overnb,..r 2. 2011. speaks for use! 1.
lilt,' ( .1 t.iCH0`, 111C H

Case4:11-cv-06155-LB Document10 Filed02/06/12 Page13 of 21

72.

The report by Mr. Kramer dated November 2, 2011, and his previous

2 report speak for themselves. Except as specifically admitted, the City denies the 3 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.
ce
L.LJ

SI ON AL

12

75.

The City has insufficient information or belief on the subject to permit it

13 to admit or deny the allegations in paragraph 75 of the Complaint and, basing its 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
A

;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. 79. iolation The City denies the allegations in paragraph 7 of the Complaint. The City admits and alleges that its actions were not preempted by or in

or the Act. lt\c.tept as specifically admitted, the City has insulficient

t

l 'OrMlion

He! el on the t-nbik.sct to peril) h it to admit or ( 1,. m , th k: l li cIra ti ori ,; in

Case4:11-cv-06155-LB Document10 Filed02/06/12 Page14 of 21

1 allegations in paragraph 79 of the Complaint. 2 80. The City denies it has acted unlawfully. Except as specifically

3 admitted, the City has insufficient information or belief on the subject to permit it to 4 admit or deny the allegations in paragraph 80 of the Complaint and, basing its denial 5 on that ground, denies the allegations in paragraph 80 of the Complaint. 6 81. The City has insufficient information or belief on the subject to permit it

7 to admit or deny the allegations in paragraph 81 of the Complaint and, basing its 8 denial on that ground, denies the allegations in paragraph 81 of the Complaint. 9 10
0 ce
AT LAW - A PRO FESSIONAL COR PORATION

COUNT ONE
82. The City repeats its answers to paragraphs 1 through 81, inclusive, of

11 the Complaint and incorporates them herein by this reference as though set forth 12 again in full. 3 83. 47 U.S.C. 253 speaks for itself. Except as specifically admitted, the

RICHARDS WATSON

14 City denies the allegations in paragraph 83 of the Complaint. 15 84. The Ordinance speaks for itself. Except as specifically admitted, the

16 City denies the allegations in paragraph 84 of the Complaint. 17 18 85. 86. The City denies the allegations in paragraph 85 of the Complaint. The Ordinance and 47 U.S.C. 253 speak for themselves. Except as

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19 specifically admitted, the City denies the allegations in paragraph 86 of the 20 Complaint. 21 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

Case4:11-cv-06155-LB Document10 Filed02/06/12 Page15 of 21

1 2 89.

COUNT TWO 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.
WATSON I GERSHON
IO NAL CORPORATION

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.

ATTORNEYS AT LAW - A P

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 alle gations in paragraph 96 ol the Complaint.

Case4:11-cv-06155-LB Document10 Filed02/06/12 Page16 of 21

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 14
RI CHARD SI W

COUNT FOUR
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. speaks for itself. Except as in p ttttt 1 H4 01 thc

( flu ot ell' /0/A v. /.(. V. 486 I . .S "`7. 04 ( () sa! ,dmitted. the (.'it\ detiic hc tli

Case4:11-cv-06155-LB Document10 Filed02/06/12 Page17 of 21

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 COUNT FIVE 106. The City repeats its answers to paragraphs 1 through 105, inclusive, of

7 the Complaint and incorporates them herein by this reference as though set forth 8 again in full. 9 107. The Application and the TCA speak for themselves. Except as

10 specifically admitted, the City denies the allegations in paragraph 106 of the
NALCORPORA TI ON

1 12

Complaint. 108. The Decision speaks for itself. Except as specifically admitted, the City

3 denies the allegations in paragraph 108 of the Complaint. 4 109. The Decision speaks for itself. Prior findings by the City and

RICHA RD SIW

AT LAW - APRO

15 admissions by planning staff and Mr. Kramer speak for themselves. Except as 16 specifically admitted, the City denies the allegations in paragraph 109 of the 17 Complaint. 18 110. The Decision speaks for itself. Hansen Brothers Enterprises, Inc. v.

cE2

OP 7:51/4,

19 Board of Supervisors of Nevada County, 12 Ca1.4th 533, 565 (1996) speaks for itse 20 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
PCCj

.1

he Deci s ion and rederal la\\ speak lor thernse

Ihe (\
all.CL.1,10H`

It as

1,,111:\

1,1111i

-IdiThj.1 -dril 112 orthc

Case4:11-cv-06155-LB Document10 Filed02/06/12 Page18 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. Ln 117. The Decision speaks for itself. Except as specifically admitted, the City
2 NE)

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.

T he 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

Case4:11-cv-06155-LB Document10 Filed02/06/12 Page19 of 21

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 8 9 10

ONA LCOR PORATE ()

FIRST AFFIRMATIVE DEFENSE

[Failure to State A Claim For Relief] 123. The Complaint fails to state a claim upon which relief may be granted.

11 12 3

SECOND AFFIRMATIVE DEFENSE [Failure to Exhaust Administrative Remedies] 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 18 19

THIRD AFFIRMATIVE DEFENSE

[Waiver] 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
77

FOURTH AFFIRMATIVE DEFENSE

I' ..stoppel
24 126. 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.

CV I IO6155 B)

Case4:11-cv-06155-LB Document10 Filed02/06/12 Page20 of 21

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 8 9 SIXTH AFFIRMATIVE DEFENSE [Standing] 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

O FE5SIO NA LCORP ORA TIO N

11 zones, and therefore has no standing to mount a facial challenge to the Ordinance. 12 13 14 15 PRAYER FOR RELIEF Wherefore, the City prays judgment as follows: 1. That plaintiff take nothing and that the Complaint be dismissed with

CHARDSIWATSON

TO RNEY5 AT L AW - A

16 prejudice; 17 18
2. 3.

That judgment be entered in favor of the City and against plaintiff; That the City be awarded its costs and fees of this lawsuit, including

'ZdEtt_

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

Case4:11-cv-06155-LB Document10 Filed02/06/12 Page21 of 21

1 Dated: February 3, 2012

Respectfully submitted, CRAIG LABADIE CITY ATTORNEY CITY OF ALBANY

4 5 6 7

T. IT 1ER PIERCE DAVID G. ALDERSON RICHARDS, WATSON & GERSHON A Profess ionil Corporation

By: T. PETER PIERCE Attorneys for Defendant, City of Albany

9 10
ATTOR NEYSATL AW - APRO FES IONALCORPORATION

1 2 3 14 15 16 17 18 19 20

RIC HARDSIWATSON
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Pie
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