Ore. County Wins Summary Judgment Over AT&T in Cell Tower Fight

U.S. Magistrate Judge Mustafa Kasubhai for Oregon in Eugene denied plaintiff AT&T’s motion for summary judgment against Lane County, Oregon, but granted the county’s motion for summary judgment against AT&T, said the judge’s signed opinion and order Wednesday (docket 6:22-cv-01635). In dismissing AT&T’s case, the judge held that the carrier failed to exhaust its remedies under Oregon’s administrative land use process.

AT&T sued to reverse the county’s denial of its application to build a 150-foot-tall cell tower on a five-acre parcel of land (see 2210260009). The county’s defense relied partly on its assertion that federal court lacked 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. Kasubhai’s decision in the county’s favor came a little more than a week after he convened oral argument on the parties’ cross-motions for summary judgment (see 2310180001).

Section 332(c)(7)(A) of the Telecommunications Act “expressly preserves” both state and local authority over the “siting of personal wireless service facilities,” said the opinion and order. The “plain meaning” of Section 332(c)(7)(A) “preserves the authority of Oregon’s administrative scheme,” it said.

Oregon’s two-step land use process “provides for exclusive jurisdiction over final actions of local authorities,” said the opinion and order. Within the Oregon scheme, the judge found that the county’s denial of AT&T’s proposed cell tower wasn’t “a final action that confers subject matter jurisdiction” on the federal court, it said.

AT&T argues that because the district court heard a TCA claim in 2004 regarding a permit denial by the city of Hillsboro, Oregon, that wasn’t appealed to LUBA, such appeal isn’t “a jurisdictional prerequisite for TCA claims in federal court,” said the opinion and order. In that case, the court didn’t address the issue of “administrative exhaustion” with respect to the claimant’s failure to appeal the city’s permit denial to LUBA, it said. “A district court opinion is not precedential,” it said.

Though a district court opinion can be “instructive,” the 2004 case “is silent on the issue of a final order in Oregon’s land use scheme,” and so it doesn’t help with the court’s current analysis, said the opinion and order. For that reason, the 2004 case doesn’t “bear on the issue” of AT&T’s failure to appeal to LUBA “as a jurisdictional bar to this action,” it said.

AT&T contends that requiring an appeal to LUBA to satisfy the “final action” requirement of the TCA would “run afoul” of congressional intent for the TCA “to allow for rapid deployment of technologies,” said the opinion and order. AT&T argues that the TCA’s “mandate for expedited review” shows that Congress intended for the statute “to supplant Oregon’s two-step land use appeal process,” it said.

But the court finds that the state LUBA process “is consistent with the TCA’s expedited review mandate,” said the opinion and order. As the Oregon Court of Appeals noted, by creating LUBA and giving it exclusive jurisdiction, the Oregon legislature created a body with particular expertise to review land use decisions, it said. Quick disposition of disputed issues is also central to the LUBA statutory scheme, it said.

LUBA is required to issue a final decision within 77 days of receiving the record of the local authority’s decision, and the average LUBA appeal takes about four to eight months from start to finish, said the opinion and order. AT&T filed its case in October 2022, and didn’t file a motion for summary judgment until June 1, despite the parties’ agreement “to forego Rule 26(a)(1) disclosures and the undisputed factual record,” the court said. LUBA’s process is “timely,” and the TCA’s requirement to expedite the deployment of telecommunications services and new technologies doesn’t require the court “to circumvent the state process,” it said.

The court finds that AT&T’s "failure to exhaust" the remedies provided for in Oregon’s land use administrative process prevented it from obtaining a “final action” for the purposes of bringing a TCA claim against Lane County, said the opinion and order. The court is “satisfied" that the county hearing official’s denial of AT&T’s proposed cell tower wasn’t a “final action” as defined under the TCA.

The TCA’s Section 332(c)(7)(B)(v) doesn’t “preempt” Oregon’s LUBA process, said the opinion and order. AT&T’s action under the TCA “requires an appeal and decision from LUBA,” it said. In granting the county’s motion for summary judgment, the judge dismissed AT&T’s action because the court lacks subject-matter jurisdiction.