AT&T Urges Denial of Ore. County’s Motion for Summary Judgment in Cell Tower Fight

The Lane County, Oregon, motion for summary judgment against AT&T’s complaint to force approval of a 150-foot-tall cell tower (see 2306020025) makes several arguments that all “must fail,” said AT&T’s opposition Thursday (docket 6:22-cv-01635) in U.S. District Court for Oregon in Eugene. AT&T also filed a motion for summary judgment against the county (see 2306230009).

The county wrongly claims the Oregon federal court doesn’t have jurisdiction over AT&T’s sole cause of action under the Telecommunications Act, said AT&T’s opposition. AT&T wasn’t obligated to appeal the county’s cell tower denial to the Oregon Land Use Board of Appeals (LUBA), and the county hasn’t presented “any actual legal authority in support of this argument,” it said. Though the county attempts to present a “novel claim” that a hearings official’s denial wasn’t final, and a state appeals board “is somehow an extension of a local municipality’s administrative review process, all the legal authority on the issue concludes otherwise,” it said.

The county’s argument that it’s entitled to summary judgment because AT&T seeks to prove an effective prohibition under a supposedly incorrect legal standard “ignores the clear language” of AT&T’s complaint, said the opposition. There’s no actual dispute between the parties about what legal standard AT&T must meet “to prove an effective prohibition,” it said. There’s also no factual dispute that AT&T “has indeed met the test," it said.

The county’s motion also advances the claims that AT&T doesn’t have a significant service coverage gap that warrants the tower, and that the proposed location for the tower isn’t the least intrusive means for closing the service coverage gap, said the opposition. But the county doesn’t offer any evidence “in support of these arguments,” it said.

The county’s argument that LUBA has exclusive jurisdiction over AT&T’s claim contradicts its own admission in its answer to AT&T’s complaint, said the opposition. Based on its own admission, the county can’t now argue the court has no jurisdiction in this matter, it said. “Such an assertion is counter to the applicable law, in any case,” it said.

The county seeks to characterize LUBA as “inextricably linked to every local government in Oregon, such that any final local land use denial in Oregon is never really final unless and until LUBA has ruled on the denial, said the opposition. The county argues LUBA is part of a unique two-step process, making it “an essential part” of local land use decisions, which can’t be “sidestepped” by a federal lawsuit, it said. “But every local government in Oregon has a different land use review process,” it said. Not every county or municipality “has a process similar to Lane County, in which there is only one level of administrative review for a conditional unit permit,” it said.