Ore. County Urges Denial of AT&T’s Motion for Reconsideration of Cell Tower Decision

U.S. Magistrate Judge Mustafa Kasubhai should deny AT&T’s Nov. 17 motion to reconsider and reverse his Oct. 25 opinion and order granting summary judgment for Lane County, Oregon, and to approve AT&T’s application that the county denied for a 150-foot cell tower (see 2311200016), said the county’s opposition Tuesday (docket 6:22-cv-01635) in U.S. District Court for Oregon in Eugene.

The court “correctly concluded” that it lacked subject-matter jurisdiction over the case, said the county’s opposition. That's because AT&T “failed to follow Oregon’s land use process,” which requires an appeal to the state’s land use board of appeals (LUBA) “as the final action in a land use application,” it said. There thus was no final action under Section 332 of the Telecommunications Act for the court to review, said the opposition. AT&T’s motion “raises no new legal arguments” or any other basis for relief, it said.

AT&T hasn’t shown any errors in the court’s order justifying relief under Rule 60(b)(1) of the Federal Rules of Civil Procedure, said the county’s opposition. Nor has AT&T shown “any exceptional circumstances” justifying relief under Rule 60(b)(6), it said. AT&T’s dissatisfaction with the order or belief that the court is wrong “is no basis” for the court to vacate the order and judgment in the county’s favor, it said.

AT&T has failed to address “the most relevant question” related to the impact of Section 332 on the LUBA process, said the county’s opposition. That question is whether Section 332 preempts Oregon’s land use process, “which mandates an appeal to LUBA of any local land use decision prior to seeking a judicial remedy,” it said. The court “correctly found that it does not, a finding firmly rooted in the plain language of the statute, which preserves state and local zoning processes,” it said.

AT&T can’t and doesn’t dispute that under Oregon law, LUBA has exclusive jurisdiction to review any local government's land use decision, including those that involve federal law claims, said the county’s opposition. That exclusive jurisdiction is “integral” to the state’s comprehensive system of land use regulation that requires coordination between state and local government agencies, it said. AT&T can’t avoid that “two-step land use review process” unless it can demonstrate that it’s preempted by Section 332, it said: “AT&T makes no effort to do so.”

As the court correctly concluded, nothing in Section 332 “preempts Oregon’s land use system.” said the county’s opposition. To the contrary, Section 332 “expressly preserves both state and local authority over siting of personal wireless service facilities,” it said. Section 332 says that nothing in the statute shall limit or affect the authority of a state or local government over decisions about the placement, construction and modification of personal wireless service facilities, it said.

The court correctly found that Section 332 “preserves the administrative process an applicant is required to follow under state and local laws,” said the county’s opposition. Oregon made a policy decision “to require coordination” between local governments and the state in the land use process, and established LUBA’s “exclusive jurisdiction over administrative review of local land use decisions to implement that policy,” it said. AT&T “points to no language” in Section 332 that would allow wireless providers “to circumvent the second step of Oregon’s two-step administrative review process,” it said.