AT&T, Ore. County Spar Over District Court’s Jurisdiction to Hear AT&T’s TCA Case

Oral argument Tuesday in U.S. District Court for Oregon in Eugene on the cross-motions for summary judgment over Lane County’s denial of AT&T’s application to build a 150-foot-tall cell tower (see 2210260009) focused prominently on the county’s assertion the federal court lacks jurisdiction to hear the case because AT&T failed to appeal the denial to the state’s Land Use Board of Appeals (LUBA) as Oregon law requires.

AT&T contends it needs the tower to remedy a significant coverage gap that stretches for 9 square miles along Oregon’s Pacific coast. Lane County insists it denied the tower application because the evidence AT&T presented didn’t demonstrate a significant coverage gap and that the proposed tower was the least intrusive means of solving that gap.

It’s “very clear that LUBA is a state entity and that Lane County is a local entity,” said AT&T attorney Aaron Shank of Porter Wright. “The words that Congress used” in crafting Section 332 of the Telecommunications Act specified that any party “adversely affected by the final action of a local government” must within 30 days “commence an action in a court of competent jurisdiction,” he said.

The statute says “you have to go to court within 30 days to preserve your claims, and that you have to do so after the final action of the local government,” said Shank. “There’s no question here that Lane County took its final action, they had their final word on the application,” he said. “The county had their final say, and therefore the 30-day clock starts to tick,” he said. “That’s the statute of limitations before we have to file in court, not LUBA,” he said. “We don’t need to go to LUBA to finalize” the county’s denial, he said. “That’s not a mandatory step in the county’s process.”

Lane County’s hearings officer was “the final decision-maker” in the county’s denial, said Shank. That officer gave “the final word from the county that AT&T can sue, and must sue, within 30 days in court,” he said. “Had we not done so, we would have been subject to a statute of limitations problem,” he said. “If we go into LUBA, then the county could argue that you didn’t go into court within 30 days like the Telecommunications Act requires,” he said. “There’s just no question that this court has jurisdiction to hear this claim,” he said.

But AT&T is wrong when it asserts “there’s nothing in the county that requires AT&T to appeal to LUBA,” countered the county’s outside counsel, Nancy Werner of Bradley Werner. “That’s not actually correct,” she said. The county’s decision “specifically says that they must appeal to the Land Use Board of Appeals if they are unhappy with this denial,” she said. “So that is part of the process,” she said. “It’s also mandated in state law.” Section 332 of the TCA also “preserves state and local zoning authority,” she said.

Oregon’s process “is unique,” said Werner. “It is not like other states,” she said. “Other states use maybe a two-step local process, and then you go to the courts,” she said. “What Oregon has is a two-step process, but it is local and state,” she said. “It’s really clear in establishing LUBA what the state was trying to do,” she said. Oregon was trying to allow the local governments to have their own local zoning ordinances, “and being able to enforce those, but they also wanted uniformity,” she said.

The purpose of LUBA “was uniformity in statewide planning,” said Werner. “It really is a state effort that isn’t preempted” by Section 332, she said. “It’s not inconsistent” with Section 332, she said. “It is a different way of reaching a final action than maybe some other local processes have,” but there’s nothing in Section 332 “that dictates the type of process that state or local governments must follow,” she said.

AT&T is wrong to assert the 30-day clock for filing a court challenge starts with the county’s denial of the application, said Werner. “Because the LUBA process is part of the efforts to reach a final action” under Section 332, the 30-day clock wouldn’t start ticking “until after LUBA has acted,” she said. “AT&T is stressing that these are two separate entities, one local and one state,” she said. But nothing in Section 332 “precludes that,” she said. “There’s no reason why the state can’t set up a two-step process that happens at different levels,” she said.

If the court were to uphold the county’s denial of AT&T’s tower application and if AT&T were to reapply, “then when they go to LUBA, the 30 days doesn’t run yet because they haven’t gotten to a final action yet under Oregon law,” said Werner. “When you have a two-step process, whether it’s the zoning board and then the city council, or it’s the hearings official and then LUBA, you’ve got to have some words to describe when one part of the process ends and the second part begins,” she said.