AT&T vs. West Haven

8/3/2019 AT&T vs. West Haven

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C&F: 1806112.6

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF CONNECTICUT----------------------------------------------------------------------------x

NEW CINGULAR WIRELESS PCS, LLC a.k.a AT&T

Plaintiff,

-against-

THE CITY OF WEST HAVEN and THE CITY OF WEST

HAVEN, CONNECTICUT PLANNING AND ZONING

COMMISSION

Defendants.

----------------------------------------------------------------------------x

COMPLAINT

DOCKET NO.______

New Cingular Wireless PCS, LLC (“AT&T”), by its attorneys, Cuddy & Feder

LLP, as and for its Complaint against the City of West Haven, Connecticut (“West Haven”) and

the City of West Haven Planning and Zoning Commission (the “Commission”) (collectively,

“Defendants” or the “City”), respectfully alleges as follows:

Facts Common To All Claims For Relief

Nature Of The Action

1. This Action arises from the City’s bad faith denial of AT&T’s application

for a Special Permit to install a personal wireless service facility adjacent to virtually identical

and functionally equivalent facilities operated and maintained by AT&T’s principal competitors

Verizon Wireless (“Verizon”), T-Mobile, Sprint/Nextel and Clearwire on the rooftop of a

building located at 278 Main Street in West Haven, which is located in the downtown area of the

City.

2. AT&T’s proposed facility principally called for the addition of twelve

panel antennas (where the other carriers already have thirty antennas) to the penthouse rooftop of

the building at 278 Main Street at a height of approximately seventy feet above grade level, to be

Case 3:11-cv-01967-RNC Document 1 Filed 12/20/11 Page 1 of 46



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enclosed within radiofrequency transparent enclosures that would be painted and textured to

match the brick façade of the building, together with the addition of ancillary equipment

necessary for the operation of the antennas within the building on the ground floor inside a

secure stud-wall equipment room and other such cabling as would be required for the operation

of AT&T’s proposed antennas and equipment.

3. AT&T proposed its facility in furtherance of the build-out of its wireless

network and deployment of its Long Term Evolution (“LTE”) technology to provide enhanced

mobile wireless services to the public as part of AT&T’s network, consistent with Congress’s

mandate, as implemented through the Federal Communications Commission’s (“FCC”)

regulatory oversight, to rapidly deploy advanced telecommunications and information

technologies so as to ensure that all Americans have access to personal communications services.

4. The City denied this application in a half-page “Certificate of Decision”

(the “Decision”) based on the unreasonable and unsupported “conclusions” reached by the

Commission in its spurious review of AT&T’s application under the City of West Haven Zoning

Regulations (the “Zoning Regulations,” “Telecommunications Regulation,” or “Regulations”),

including that AT&T’s proposal purportedly was not “screened” despite the fact that AT&T did

propose to shield its facility from view, that AT&T did not comply with the City’s (totally

illegal) requirement to include plans to “screen” the pre-existing antennas and equipment

maintained by AT&T’s chief industry competitors at a prohibitive cost to AT&T, that AT&T did

not acquiesce to the City’s codified (also illegal) preference to receive rents from personal

wireless telecommunications carriers by proposing the facility on unsuitable municipal property

(City Hall), that AT&T’s ancillary support equipment did not (and could not physically or

technologically) fit within the (also illegal) limitations of the City’s prohibitive equipment




C&F: 1806112.6 3

building/floor area regulation, and that AT&T’s proposed facility did not “mitigate possible

visual impact” (in fact, it did) preserve “views, corridors [or] vistas” (whatever that means) and

did not “preserve the pre-existing character of the site” (it did), all of which conclusions were

reached by the Commission without reliance on substantial evidence on the record, save for the

(invalid as preempted) equipment building regulation.

5. The City also ignored the unrefuted facts in the record confirming that

AT&T had conducted an extensive search for a suitable site in this area of the City that ruled out

all other existing structures, regardless of public or private ownership, including City Hall, and

that AT&T’s proposed facility would have no material negative visual impact whatsoever, given

that AT&T’s antennas would be completely shielded from view by textured radiofrequency

transparent enclosures that would be painted to match the brick façade of the building at 278

Main Street.

6. In violation of federal law, the City thus unreasonably and unlawfully

discriminated against AT&T by basing its denial on the erroneous assertion that AT&T

supposedly did not satisfy the City’s “screening” requirements and by imposing its irrational and

unlawful “screening” requirements on AT&T, thereby precluding AT&T from providing

functionally equivalent services as compared to similarly situated wireless service providers

Verizon, T-Mobile, Sprint/Nextel and Clearwire, none of which maintain any physical

“screening” over their antennas mounted to the same rooftop, and each of which enjoys a

substantial competitive advantage at the same site and in the same service area as long as AT&T

is prohibited from building and operating its facility.

7. In violation of federal law, the City’s denial of AT&T’s application for a

Special Permit also effectively prohibits AT&T from providing personal wireless services to this




C&F: 1806112.6 4

area of West Haven.

8. This denial is just the latest in a disturbing pattern, which clearly

evidences the City’s systemic intent to keep further wireless development outside its borders, as

evidenced by the City’s recent denial of an unrelated AT&T application for Special Permit for a

minor upgrade to an existing AT&T wireless telecommunications facility at 478 Saw Mill Road

(which was inappropriately discussed at length by the Commission on the record in this matter

and which is currently subject to litigation before this Court in New Cingular Wireless PCS, LLC

v. West Haven, Docket No. 3:11-CV-1677 (SRU)).

9.

Moreover, on information and belief, the City has not granted a single

Special Permit for the construction, modification or even for the routine maintenance of a

personal wireless service facility since the City amended its Zoning Regulations to include a

comprehensive “Telecommunications Regulation,” confirming that the City has engaged in a

general ban aimed at prohibiting the provision of personal wireless services in the City.

10. In violation of federal law, the City’s arbitrary findings in the Decision

offer absolutely no reason or basis for the denial except conclusory and incomprehensible

references to sections of the Zoning Regulations that the City erroneously relied upon in issuing

its denial. Also conspicuously lacking is a shred of evidence, let alone substantial evidence,

either in the Decision or in the record, upon which the City could support its denial.

11. The City also denied AT&T’s application on the basis that AT&T’s at-

grade equipment footprint (with all equipment hidden within the confines of the building at 278

Main Street in a secure stud-wall equipment room on the ground level) exceeded arbitrary space

limitations imposed by the City. AT&T could not possibly satisfy the City’s equipment floor

space limitation in light of the space requirements for the actual equipment required to operate a




C&F: 1806112.6 5

personal wireless service facility. The City’s arbitrary restrictions on the allowable footprint and

amount of space that AT&T’s equipment can occupy thereby violates and is preempted by

federal law because this equipment size restriction effectively prohibits the provision of wireless

services and illegally imposes the City’s technological preferences on the nature, size and

technology of AT&T’s wireless equipment in a field that is exclusively regulated by, and

reserved to the authority of Congress and the FCC.

12. The City’s “screening” regulations, which include absolute “screening”

requirements regardless of the context of the application, are unconstitutionally vague on their

face and as applied, as is amply illustrated by the instant case, where AT&T made every attempt

within the confines of the law to satisfy the City’s “screening” requirements, but because these

requirements were wholly lacking in meaningful substance and guidance, no matter what action

AT&T took, the City advanced a subjective, bad faith interpretation of “screening” to

manufacture a specious finding of a noncompliance by AT&T. The undefined “screening”

requirements of the Zoning Regulations give the City unfettered discretion to shift its

interpretation of what constitutes “screening” in myriad ways in order to arbitrarily justify a

denial of a wireless application and must therefore be stricken.

13. Moreover, the City’s prohibitory equipment building/floor area regulation

is preempted by the Commerce Clause of Article 1, Section 8, Clause 3 and the Supremacy

Clause of Article VI, Clause 2, of the United States Constitution because it is a regulation that

unduly burdens the out-of-state designers, developers, producers and manufacturers of AT&T’s

wireless telecommunications equipment, which is designed to be standardized and

interchangeable with other wireless facilities in AT&T’s network within and without

Connecticut in order to comply with AT&T’s federal mandate to provide for the rapid and cost-




C&F: 1806112.6 6

effective deployment of personal communications services technology to the American people,

such that the effect of the building size/floor area regulation is clearly excessive in relation to the

putative local benefit and rendered unreasonable and irrational.

14. Further, in violation of several provisions of the Connecticut General

Statutes and relevant state law: the City’s Regulations prohibit a personal communications

service provider from seeking a variance, which is an invalid and illegal limitation of the

statutory authority of the Zoning Board of Appeals and renders an appeal to the Zoning Board of

Appeals futile; the Decision was not based on substantial evidence in the record, nor did the City

publish notice of the Decision in a newspaper of general circulation in the community; and the

City maintains a codified, illegal, first-priority preference for siting telecommunications facilities

on municipal-owned property or buildings in excess of statutory authority.

15. The City is thus liable for violations of Section 704 of the

Telecommunications Act of 1934, as amended by the Telecommunications Act of 1996 (the

“Telecommunications Act” or the “Act”) (codified at 47 U.S.C. § 332(c)(7)(B)), by virtue of the

City’s unreasonable discrimination, effective prohibition of personal wireless services and the

lack of substantial evidence upon which to support its Decision.

16. The City is also liable for violations of Connecticut General Statutes §§ 8-

6(a), 8-3c and 8-2 by virtue of enforcing Regulations that create a preference for municipal

property over private property in excess of statutory authority, unlawfully limit the statutory

authority of the Zoning Board of Appeals, and by virtue of rendering the Decision without any

reasoning, discussion or basis, let alone substantial evidence on the record and failing to publish

the Decision as required by statute.




C&F: 1806112.6 7

17. On these bases, as set forth herein, AT&T is entitled to a judgment and an

injunction reversing the Decision, compelling the City to grant AT&T’s Special Permit

application and to furnish AT&T with any and all other approvals and permits required for

AT&T’s proposed facility to be immediately constructed and made operational, and striking

those portions of the City’s Zoning Regulations that arbitrarily impose “screening” requirements,

equipment building/footprint limitations, a first-priority preference for municipal-owned

property and which preclude the possibility of a variance that could have otherwise served to

relieve AT&T (and anyone else for that matter) from the City’s onerous and irrational Special

Permit requirements.

The Parties

18. Plaintiff AT&T is a Delaware Limited Liability Company authorized to do

business in Connecticut with an address at 500 Enterprise Drive, Rocky Hill, Connecticut,

06067. Plaintiff AT&T provides “personal wireless services” to the public as that term is used

and defined in Section 332(c)(7)(B) of the Telecommunications Act.

19. On information and belief, Defendant the City of West Haven is a

municipality duly organized and existing under the laws of the state of Connecticut, having an

address at City Hall, 355 Main Street, West Haven, Connecticut, 06516.

20. On information and belief, Defendant the City of West Haven,

Connecticut Planning and Zoning Commission is the municipal agency empowered under the

laws of the state of Connecticut and the City of West Haven with the administrative authority to

grant Special Permits, having an address at 355 Main Street, West Haven, Connecticut, 06516.




C&F: 1806112.6 8

Jurisdiction And Venue

21. This Court has subject matter jurisdiction over this action pursuant to: (a)

47 U.S.C. § 332(c)(7)(B)(v) of the Telecommunications Act because AT&T has been adversely

affected and aggrieved by Defendants’ actions in violation of § 332(c)(7)(B) of the

Telecommunications Act; and (b) 28 USC § 1331 because this is a civil action that presents

federal questions arising under the Telecommunications Act.

22. This Court has personal jurisdiction over Defendants in that Defendants

committed the specific acts complained of herein in the judicial district for the United States

District Court, District of Connecticut.

23. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because the

claims stated herein arose in the judicial district for the United States District Court, District of

Connecticut, and Defendants reside in this District.

Expedited Review Requirement

24. Expedited review of this action is required pursuant to Section 704 of the

Telecommunications Act, as codified at § 332(c)(7)(B)(v) of the Telecommunications Act

(providing that “[t]he court shall hear and decide such action on an expedited basis”).

The Important Federal Interests At Issue In This Case

25. The United States of America has declared that there is a public need for

wireless communication services such as “personal wireless services,” as set forth in the

Telecommunications Act, and the Federal Communications Commission (“FCC”) rules,

regulations and orders promulgated pursuant thereto.

26. The Telecommunications Act was intended by Congress to “provide for a

pro-competitive, deregulatory national policy framework designed to accelerate rapidly private




C&F: 1806112.6 9

sector deployment of advanced telecommunications and information technologies to all

Americans.” H.R. Rep. No. 104-458, at 206 (1996) (Conf. Rep.); See 1996 U.S. Code Cong. and

Adm. News, p. 10.

27. The FCC regulates the provision of personal wireless services to the

public.

28. The FCC licenses providers of personal wireless services to use limited

resources, frequencies and spectrum allocated by the FCC for the provision of such services to

the public.

29.

The Telecommunications Act, while preserving state and local authority

over the placement, construction or modification of wireless facilities, expressly preempts state

or local governments from unreasonably discriminating among providers of functionally

equivalent services (here, AT&T, as compared to its competitors Verizon, T-Mobile,

Sprint/Nextel and Clearwire), effectively prohibiting the provision of personal wireless services

and from implementing regulations and/or decisions that are not supported by substantial

evidence (here, there is no record evidence to support the denial).

30. The Telecommunications Act also preempts state and local governments

from regulating their own technological preferences or implementing regulations that have the

effect of prohibiting the provision of wireless services (such as the unreasonable space

limitations on the placement of equipment here, which would serve as a bar to any wireless

carrier’s ability to effectively provide services going forward).

31. AT&T provides mobile telephone and other personal wireless

communication services in the State of Connecticut pursuant to FCC licenses issued to AT&T.

32. The FCC’s granting of licenses to AT&T constitutes a finding that the




C&F: 1806112.6 10

public interests will be served by AT&T’s services, consistent with the public policy, as

formulated by Congress, “to make available so far as possible, to all people of the United States

. . . a rapid, efficient, nationwide and worldwide wire and radio communication service with

adequate facilities at reasonable charges, for the purpose of national defense, for the purpose of

promoting safety of life and property through the use of wire and radio communication.” 47

U.S.C. § 151 (emphasis added).

33. AT&T’s customers communicate through handsets, mobile telephones,

and other media via a network of personal wireless service facilities, each of which operate at

low wattages and use the finite amount of the radio frequency spectrum allotted to AT&T by the

FCC.

34. Pursuant to the federal mandates described herein, telecommunications

facilities are part of the nation’s critical infrastructure and further a national policy to extend

wireless services to all areas of America and to provide broadband services, which by virtue of

the emerging technology and increasing demand includes the facility at issue here. These federal

mandates are evidenced in numerous laws adopted by the Congress, FCC regulations and recent

decisions and other federal policies, including those of the President of the United States.

AT&T’s Wireless Service

35. AT&T’s provision of wireless services is only possible through the

installation of numerous wireless facilities in order to create a network.

36. Typically, a wireless facility consists of up to twelve flat panel antennas,

which may be mounted on existing tall structures or attached to a tower or monopole (or in this

case, a building rooftop) along with other associated equipment necessary for the operation of

the facility.




C&F: 1806112.6 11

37. Each wireless facility services a specific area, the exact radius of which is

dependent upon topography, including the terrain, existence of trees, buildings, and other

obstructions which impact the effectiveness and propagation of the radiofrequency signals

utilized in the provision of wireless services.

38. Existing gaps in personal wireless service coverage, and increasing

demand for wireless services by the public requires the installation of additional wireless

facilities by AT&T across the state of Connecticut and specifically in and around West Haven,

including the facility at issue here, which is designed to ensure the continued provision of

wireless services with the requisite coverage and capacity needed for reliable voice, data and

other services for use by the public on a daily basis and ensuring that the wireless services are

tailored to meet the evolving needs of mobile devices used by the general public (such as 4G and

LTE “smart phone” devices).

39. To be properly sited and function within AT&T’s network, a wireless

facility must be capable of seamlessly “handing off” communications to another adjacent

wireless facility within each wireless carriers’ respective network system.

40. AT&T’s Radio Frequency (“RF”) Engineers conduct detailed technical

analyses to determine where wireless facilities must be installed in order to provide the

“seamless” coverage needed to address the topographical and technological limitations involved

in the provision of its wireless services.

41. Unlike wire-line communications, wireless service cannot be piped or

wired to users from a distant facility. Instead, each wireless facility itself is the “generating”

facility with radio waves linking users to wireless service.

42. Alternative locations for wireless facilities needed to remedy gaps and






C&F: 1806112.6 13

23, 2008, for a total of six antennas, four rooftop-mounted equipment cabinets and other related

equipment. Sprint/Nextel’s wireless facility has been in operation on the rooftop since on or

about February 27, 2005, and consists of nine antennas and related support equipment.

Clearwire operates a wireless facility on the rooftop consisting of three panel antennas, a

microwave dish and other ancillary support equipment. Verizon has operated a facility at the site

since on or about March 2, 2009, which consists of an emergency electricity generator and an

equipment shelter mounted to the penthouse rooftop with twelve antennas pipe-mounted to the

shelter at an overall height of approximately eighty-four feet above grade level, which is the

highest point on the subject property.

48. Each of these facilities was installed prior to the amendment of the City’s

Zoning Regulations to include a comprehensive “Telecommunications Regulation.” None of the

existing antennas or equipment are shielded from view or “screened” (no matter how the City

chooses to define that term on any given day) and are, therefore, protected by law as existing

nonconformities with the current Zoning Regulations.

49. On information and belief, each personal wireless service provider

operates under a separate lease with the building’s owner, with attendant rights and duties

thereto.

50. Beginning on or around January 2010, the existing Verizon facility at 278

Main Street became the focus of public opposition from City residents living within a close

proximity to 278 Main Street drawing complaints of violations of the Zoning Regulations and the

City noise ordinance, which resulted in petitions, attempted action before the Zoning Board of

Appeals that concluded on or about October 10, 2010, complaints to the Office of the

Connecticut Attorney General made between December 2010 and January 2011, public




C&F: 1806112.6 14

investigation of the Planning and Zoning Commission by the City Council, investigation of

alleged violations of the Zoning Regulations by the City Zoning Enforcement Officer that

commenced in or around September, 2011, and zoning enforcement proceedings against Verizon

that commenced on or about October 5, 2011.

51. In the intervening time (and in response to the public criticism of the

practice and procedure of the Department of Planning and Development and the Planning and

Zoning Commission, which had previously required only a building permit for the construction

or modification of a personal wireless service facility) the Planning and Zoning Commission

amended the Zoning Regulations to include a comprehensive (and labyrinthine)

“Telecommunications Regulation,” codified at Section 48, the last amendment to which became

effective on or about January 11, 2011, which requires a Special Permit (as opposed to a building

permit, which is all that was required for the preexisting installations of Verizon, T-Mobile,

Sprint/Nextel and Clearwire facilities) for the construction of new facilities and even minor

modifications to existing wireless facilities.

52. On information and belief, since members of the public became vocal in

opposition to wireless facilities, the City has not granted a single Special Permit for the

construction or even routine modification (no matter how minimal and unobtrusive) of a wireless

facility, including a 2009 application by Pocket Wireless that was denied on or about January 26,

2010, a post-Telecommunications Regulation 2011 application by Sprint/Nextel to perform

equipment upgrades to its facility at 278 Main Street that was denied on or about June 14, 2011,

and the denial of AT&T’s unrelated application for a Special Permit to perform a routine

equipment upgrade at its facility at 478 Saw Mill Road on or about October 5, 2011 save for

granting one Special Permit to the Regional Water Authority, permitting it to construct an




C&F: 1806112.6 15

unscreened communications tower, which should have been prohibited by Sections 48.6.12 and

48.6.13 had the City uniformly applied its laws, atop a water tower located within a residential

zone, which should have been prohibited by Section 48.3, subject to the express condition that

the tower never be permitted to be used for the transmission of personal wireless services, further

evidencing the City’s open (and notorious) animus toward personal wireless service providers

and the City’s utilization of its Regulations in an arbitrary and capricious manner to effectively

prohibit and effectuate a general ban on wireless services within the City.

53. In 2011, consistent with its federal mandate to continue to ensure the rapid

deployment of reliable wireless services, which necessarily calls for facilities with the latest

technology and equipment (4G “smart” phones for example), AT&T filed an unrelated

application for a Special Permit with the Commission to perform minimal modifications to

AT&T’s wireless telecommunications facility at 478 Saw Mill Road in West Haven by keeping

the six existing antennas and adding three new antennas and related equipment along with other

equipment to the interior of an existing enclosed shelter, which application was denied by the

Commission without basis by a letter postmarked on or about October 5, 2011, which denial is

now the subject of litigation before this court in New Cingular Wireless PCS, LLC v. West

Haven, Docket No. 3:11-CV-1677 (SRU).

54. It is into this milieu and with due consideration of the stringent Special

Permit criteria and the Commission’s arbitrary and restrictive (to the point of prohibition)

interpretation of those criteria that AT&T submitted an application for Special Permit to

construct a wireless facility at 278 Main Street on September 9, 2011, which consisted of, inter

alia: a completed application form; a memorandum in support; a narrative site search summary

explaining in detail AT&T’s internal site search procedures, the specific properties investigated,




C&F: 1806112.6 16

and the reason that each was determined to be unsuitable; drawings completed by a Connecticut-

licensed professional engineer; a table of existing AT&T wireless sites in West Haven; a

structural assessment letter made by a Connecticut-licensed professional engineer attesting to the

structural soundness of the rooftop at 278 Main Street; a rooftop area letter made by a

Connecticut-licensed professional engineer concluding that 2.8% of the total rooftop area would

be encumbered by of all existing and proposed antennas and equipment; a Maximum Permissible

Exposure Study, concluding that all radiofrequency emissions emanating from this site would

attain a worst-case 6.855% of the maximum permissible exposure level prescribed by the FCC

(well within FCC limitations); and, a visual analysis with photographs of the existing site and

photosimulations of the proposed facility, which demonstrated that the proposed facility would

have little to no discernable visual impact.

55. Below in Figure 1 is a photograph of the rooftop of the building at 278

Main Street, evidencing that the rooftop is replete with other carriers’ antennas and equipment.

56. Below in Figure 2 is a photosimulation of the rooftop with AT&T’s

proposed facility, which depicts the location and minimal visibility of AT&T’s proposed

antennas, which would be enclosed in textured walls that would be painted to match the brick

façade of the building, each enclosure being approximately the same dimensions.




C&F: 1806112.6 17

Figure 1

Figure 2




C&F: 1806112.6 18

57. The Commission commenced a public hearing on AT&T’s application on

or about October 11, 2011, at which AT&T presented its application together with supporting

testimony from an AT&T radiofrequency engineer, a Connecticut-licensed professional engineer

and two independent radiofrequency analysts from SAI Communications, Inc.

58. Before the Commission opened the public hearing, the Assistant City

Planner provided AT&T’s counsel with a document that the Commission had, apparently (and

impermissibly), accepted into the record before commencing the public hearing, which consisted

of a letter by a local attorney dated January 2010 (a full year and nine months before AT&T had

even submitted its application for a Special Permit) and, on information and belief, was prepared

in opposition to a completely separate application for a Special Permit submitted by another

wireless carrier in late 2009 and denied by the Commission in early 2010.

59. At the public hearing on October 11, 2011, the Commissioners proposed

to reject AT&T’s application for a Special Permit to site its proposed facility at 278 Main Street

(out of hand and without consideration on its merits) because the building is listed on the

National Register of Historic Places despite Section 48.5.1(e) of the Regulations, entitled

“Design Criteria” (but having nothing to do with design), which provides: “An antenna may not

be located on a building or structure that is listed on an historic register or within an historic

district, except by special permit from the Planning and Zoning Commission.” (Emphasis

added). The Commissioners made statements on the record to the effect that this Section is

prohibitory (against a plain reading of the Section, which is clearly permissive).

60. At the public hearing on October 11, 2011, the Commissioners also

insisted on questioning AT&T’s witnesses about the technological specifications of Verizon’s

facility and emergency generator, which was totally outside the scope of AT&T’s application




C&F: 1806112.6 19

and indicated that the Commission was unable (or unwilling) to address AT&T’s application on

its own merits. Public comment at the October 11th hearing focused almost exclusively and at

length on the Verizon facility including noise complaints ostensibly pertaining to Verizon’s

emergency electricity generator and addressing long-standing public grievances with the

Planning and Zoning Commission that predated AT&T’s application by years.

61. On October 25, 2011, AT&T made a supplemental submission to the

Commission to correct a self-identified inconsistency in its original submission (which had

proposed six-foot-tall antennas instead of four-foot-tall antennas, which would comply with

Section 48.5.1(b) of the Regulations) and to address the concerns and furnish information

extraneous to AT&T’s application and proposed facility that the Commission had raised and

requested at the initial public hearing on October 11th

, which consisted of: drawings made by a

Connecticut-licensed professional engineer that identified the location and size of the existing

facilities (and individual pieces of equipment) maintained by other carriers at 278 Main Street

and the modified dimensional specifications of AT&T’s proposed antennas and concomitant

reduction in overall height of AT&T’s proposed facility; a specification sheet for KMW model

AM-X-CD-14-65-00T-RET (four-foot-tall) antennas, which, on information and belief, are

manufactured in South Korea and imported into the United States for use in AT&T’s wireless

network; a revised Maximum Permissible (Radiofrequency Emissions) Exposure Study

(reflecting the utilization of the four-foot-tall antennas); a table of AT&T’s proposed equipment

and floor area to be occupied by that equipment; and, a letter from a Connecticut-licensed

professional engineer stating that AT&T’s modified proposal would comply with the City’s

rooftop area coverage limitations.

62. AT&T’s October 25, 2011 supplemental submission also objected to and




C&F: 1806112.6 20

provided legal support for striking the “evidence” impermissibly accepted into the record by the

Commission before the commencement of the public hearing on October 11, 2011.

63. At the continued public hearing on October 25, 2011, the Commission had

abandoned its reliance on the historic status of the building at 278 Main Street as a potential

basis to deny AT&T’s application and instead shifted its focus to Section 48.6.11, the City’s

(overly) restrictive equipment building/floor area regulation entitled “Equipment Building Size”

which provides: “The related unmanned equipment and/or buildings shall not contain more than

twenty (20) square feet of gross floor area or be more than four (4) feet in height.” AT&T’s

counsel interpreted this Section to apply only to new stand-alone exterior equipment shelters, and

as inapplicable to AT&T’s proposal to locate its essential support equipment within the building.

The Chairman rejected this interpretation, noting on the record that AT&T ought to be required

(by the City, in contravention of the Telecommunications Act and the United States Constitution)

to use the same technology as an unnamed (perhaps nonexistent) telecommunications company

that purportedly submitted a special permit application in the past, upon which the Commission

had based the equipment size limitations contained in this restrictive, and effectively prohibitive,

Section of the Regulations. Testimony from AT&T’s radiofrequency engineer and professional

engineer confirmed that it would be physically and technologically impossible for AT&T to

comply with the dictate of Section 48.6.11, not to mention unsafe because a service technician

likely could not safely maneuver within the confines of the limited area without violating the

Occupational Health and Safety Act of 1970 (OSHA).

64. At the continued public hearing on October 25th

, the Commissioners

continued to confound AT&T’s application by allowing public comment at length on a zoning

enforcement proceeding that was by then pending against Verizon’s facility at 278 Main Street.




C&F: 1806112.6 21

65. On November 17, 2011, AT&T made a final supplemental submission to

the Commission, which consisted of a letter from the Connecticut State Historic Preservation

Officer, the statutory designee for maintaining and overseeing the National Register of Historic

Places program in Connecticut, which issued a legal determination that AT&T’s proposed

facility would have “no adverse effect” upon the historic character of the property at 278 Main

Street or any and all other historic properties or districts within the surrounding area, and a

Radiofrequency Information Report, prepared by an AT&T radiofrequency engineer, which

elaborated upon AT&T’s radiofrequency need in West Haven and the unfair competitive

advantage that AT&T’s industry rivals capture by operating wireless facilities at 278 Main

Street.

66. At the continued public hearing on November 22, 2011, more than two

months after AT&T had filed its application for a Special Permit and nearly a month-and-a-half

after the Commission commenced its public hearing, the Commissioners concocted several new

grounds upon which AT&T’s application supposedly did not comply with the Regulations, the

only germane provision being Section 48.3 of the Regulations, which expresses a first-priority

siting preference for municipal-owned buildings or property, thereby providing a fallacious basis

for the Commission to charge that AT&T had not fully or fairly considered siting its facility

down the street from 278 Main Street at West Haven City Hall at 355 Main Street despite the

substantial evidence in the record to the contrary.

67. As of the November 22nd continued public hearing, it became crystal clear

to AT&T that no matter what “hoop” it agreed to jump through in order to elicit the City’s fair

consideration of what was in all respects a code-complaint application (save for the illegal

equipment building regulation of Section 48.6.11 as interpreted by the Commission) the




C&F: 1806112.6 22

Commission had its own agenda.

68. In this regard, notwithstanding that AT&T had satisfied the only salient

issue raised by the Commission at the previous hearings (the historic status of the building at 278

Main Street), AT&T’s representatives were met by the Commission with a whole new,

apparently impromptu list of reasons as to why the Commissioners felt the application should be

denied – none of which were rooted anywhere in the record, or in reality for that matter.

69. At the continued public hearing on November 22nd, AT&T’s

radiofrequency engineer testified, and AT&T’s site-search summary submitted with AT&T’s

application on or about September 9, 2011, also reflected, that AT&T had considered City Hall

as a potential site, but that the building was not tall enough in relation to surrounding structures

and topography (referenced in radiofrequency engineering parlance as “clutter”) to propagate

AT&T’s radiofrequency signal to the area identified as needing radiofrequency coverage as

effectively as the proposed facility.

70. At the continued public hearing on November 22nd

, Commissioners also

disingenuously posited that AT&T could be permitted to construct a twenty-foot

telecommunications tower atop the City Hall building if it abandoned its application and lease at

278 Main Street and undertook the time, expense, delay and risk of uncertainty to negotiate with

the City and file a new application for a Special Permit, thereby becoming ensnared in the

Special Permit process anew, in total disregard of the Commission’s application of the

“screening” provisions of Sections 48.6.12 and 48.6.13 and the adverse visual impact that such a

tower would have on the West Haven Green, which is a historic district listed on the National

Register of Historic Places, especially when weighed in contrast to AT&T’s proposal for 278

Main Street, which the State Historic Preservation Officer had already approved. AT&T’s




C&F: 1806112.6 23

counsel stated that even if this far-flung dilatory exercise in hypothetical parley were possible

(which counsel emphatically stated was highly unlikely), AT&T would nevertheless remain

incapable of complying with Section 48.6.11 as interpreted by the Commission, the City’s

restrictive equipment building regulation.

71. During the continued public hearing on November 22nd, the

Commissioners’ comments and questions further reflected a pattern of obfuscation and

obstruction, requiring that in order to comply with Section 48.6.13 of the Regulations, AT&T, in

coming to the penthouse rooftop at 278 Main Street, would be required to “screen” every single

one of the thirty (!) antennas and every single piece of the various associated equipment of each

of its competitors, in derogation of AT&T’s competitors’ leasehold rights and the law of

trespass.

72. During the continued public hearing on November 22nd, the Commission

also signaled its intent to deny AT&T’s application for a Special Permit based on the nonsensical

criteria contained in Section 48.7 of the Regulations, relating to “views, corridors, vistas” (at

best, arguably relating to the mixed commercial/residential character of the area surrounding 278

Main Street) and the “potential for preserving the pre-existing character of the site,” despite the

visual analysis and several photosimulations in the record (e.g., Figures 1 & 2 above) and the

determination of the State Historic Preservation Officer, all of which indicated that AT&T’s

proposed facility complied with this requirement and would have little-to-no aesthetic impact.

Furthermore, the Commissioners did not identify a single scenic view or quality beyond the

general aesthetics of a typical rooftop that would (with a straight face) provide any rational

justification for their “concerns.”

73. The Chairman predictably then moved to deny AT&T’s application on the




C&F: 1806112.6 24

purported bases that AT&T’s application did not comply with Telecommunications Regulation

Section 48.6.12 (the “screening” requirement for new facilities), Section 48.6.13 (the most

reasonable interpretation of which requires the “screening” of existing facilities), Section 48.6.11

(the prohibitory equipment building size limitation), Section 48.3 (the codified first-priority

siting preference for City-owned buildings and properties), Section 48.5.1 (which subsection the

Commission relied upon remains unclear as a specific subsection was not referenced in its

Certificate of Decision), and Section 48.7 (requiring that an application for a Special Permit for a

telecommunications facility “mitigate visual impact,” preserve “views, corridors, vistas” and

have a “potential for preserving pre-existing character of the site”).

The Bad Faith And Unsupportable Vote To Deny

74. After a vote to close the public hearing, and the Chairman’s motion to

deny AT&T’s application, the Commissioners failed to engage in any discussion of the grounds

for the motion (had they bothered to in any meaningful, honest way they would have inevitably

concluded that the grounds raised were baseless).

75. Without any further substantive discussion, comment, explanation or

reference to the record or any evidence, the Commission voted to deny AT&T’s application,

without stating or addressing any of the proposed grounds for denial or stating the reasons for the

denial on the record, in violation of the Telecommunications Act and Connecticut law.

76. The Decision was subsequently issued by certified mail to AT&T’s

counsel postmarked on November 29th, which Decision contained absolutely no reference to any

supporting evidence or record basis for the denial (because none exists) and instead asserted in

purely conclusory fashion that AT&T did not comply with the Sections referenced above in

Paragraph 73 when the Chairman made his motion.




C&F: 1806112.6 25

77. The Decision violates the law in several respects. In violation of the

Telecommunications Act: (a) it unreasonably discriminates against AT&T as compared with the

adjacent Verizon, T-Mobile, Sprint/Nextel and Clearwire facilities, all of which support antennas

without physical “screening” and are not subject to the prohibitory equipment building

regulation; (b) it exemplifies the City’s general policy against personal wireless

telecommunications facilities and effectively prohibits the provision of wireless services; (c) it is

unsupported by any evidence, let alone substantial evidence, since AT&T’s submissions and

comments were the only evidence pertaining to this application in the record, and the reasons

stated for the denial were totally belied by AT&T’s submission (this also demonstrates why the

Decision violates Connecticut law as well); and (d) it relies on Section 48.6.11 which is invalid

and preempted by the Telecommunications Act because the space limitations within that

provision effectively prohibit the provision of wireless services.

78. The Decision violates the due process guarantee of the Fourteenth

Amendment to the United States Constitution, in that it impermissibly relies on the completely

vague and unintelligible “screening” provisions, Sections 48.6.12 and 48.6.13, which offer

absolutely no guidance to an applicant as to what constitutes “screening,” as illustrated by the

fact that AT&T offered to completely shield the antennas and submitted several

photosimulations and even brought a sample of the proposed enclosure to the public hearings,

but the Commission instead pushed its preference for AT&T to construct a twenty-foot tall tower

on City Hall, thus indicating that the Commission apparently interprets “screening” to mean

whatever it wants to mean depending on whether it feels like granting an application.

79. The Decision violates the Commerce Clause of Article 1, Section 8,

Clause 3, of the United States Constitution, by relying on Section 48.6.11, which imposes an




C&F: 1806112.6 26

undue burden on interstate commerce that is clearly excessive in relation to the putative local

benefit.

80. The City also precludes AT&T from seeking relief from these provisions

based on Section 48.10, which prohibits the issuance of a variance and is invalid per se because

it limits the statutory authority of the Zoning Board of Appeals.

81. As a direct and proximate result of the City’s actions as complained of

herein, AT&T has been deprived of its lawful right to install its needed equipment and antennas

and AT&T is thus entitled to injunctive relief requiring the granting of all necessary approvals

for the construction of AT&T’s wireless facility as proposed in AT&T’s application for a Special

Permit, as well as a judicial declaration striking Sections 48.3, 48.6.11, 48.6.12, 48.6.13 and

48.10 of the Zoning Regulations.

FIRST CLAIM FOR RELIEF

Violation Of Section 704 Of The Telecommunications Act: Unlawful Discrimination

82. AT&T repeats, re-avers and re-alleges all prior allegations as if fully set

forth herein.

83. Section 704(b) of the Act (47 USC § 332(c)(7)(B)(i)(I)) provides that local

regulations “shall not unreasonably discriminate among providers of functionally equivalent

services.”

84. AT&T sought a Special Permit from the Commission to install a wireless

facility on the penthouse rooftop of the building at 278 Main Street in West Haven (and

complied with the City’s Zoning Regulations to the extent technologically and legally possible)

where AT&T’s industry competitors, Verizon, T-Mobile, Sprint/Nextel and Clearwire operate

their own independent facilities.

85. Verizon, T-Mobile, Sprint/Nextel and Clearwire are providers of




C&F: 1806112.6 27

functionally equivalent services – personal wireless services within West Haven utilizing

functionally equivalent equipment and technology with designs that are functionally equivalent

to, and practically indecipherable from, the designs already in place for Verizon, T-Mobile and

Sprint/Nextel, which are visible and maintain no physical “screening,” and which rely on the

same type (including with respect to size and shape) of equipment utilized by AT&T. The denial

of AT&T’s application therefore violates the Telecommunications Act’s mandate that allows for

competitors to operate on equal footing and free from unreasonable discrimination by local

agencies, and frustrates the purpose of the Telecommunications Act by unreasonably and

discriminatorily preventing AT&T from competing in the market for the provision of wireless

services.

86. The City’s selective treatment of AT&T in denying its application for a

Special Permit to construct a wireless facility next to the antennas operated by Verizon, T-

Mobile, Sprint/Nextel and Clearwire on the same rooftop, which antennas provide functionally

equivalent wireless services, constitutes unreasonable discrimination in violation of Section

332(c)(7)(B)(i)(I) of the Telecommunications Act.

87. The Commission’s application of Section 48.6.13 of the Zoning

Regulations further unreasonably discriminates against AT&T because such an interpretation

would unfairly burden AT&T with the responsibility of bringing its competitors’ legally

protected existing nonconformities into compliance with the Zoning Regulations at a substantial

and unreasonable cost to AT&T, and in violation of the law of trespass and AT&T’s

competitors’ leasehold rights.

88. AT&T is thus entitled to a judgment and an order striking Section 48.6.13

from the Zoning Regulations and compelling the City and its agents to issue a Special Permit to




C&F: 1806112.6 28

AT&T for the construction of AT&T’s wireless facility as proposed in its application for a

Special Permit, and compelling the City and its agents to issue any other required approval

and/or permits, including, but not limited to, a building permit by the Building Inspector to the

extent required by local law.

SECOND CLAIM FOR RELIEF

Violation Of Section 704 Of The Telecommunications Act: Effective Prohibition


forth herein.

90. Section 332(c)(7)(B)(i)(II) of the Telecommunications Act, as amended by

Section 704, provides that the “regulation of the placement, construction, and modification of

personal wireless service facilities by any State or local government or instrumentality thereof

. . . shall not prohibit or have the effect of prohibiting the provision of personal wireless

services.”

91. In violation of this Section, the Decision effectively prohibits AT&T from

fulfilling a need for wireless service to this area of West Haven, for which AT&T demonstrated a

significant radiofrequency need and proposed the least intrusive (and, to the extent legally and

technologically possible, code-compliant) means of fulfilling that need and because the

Commission’s Decision evidences a pattern of successive denials of all personal wireless service

providers from obtaining a requisite Special Permit to construct new facilities or to maintain

existing wireless facilities in West Haven such that the Zoning Regulations and the

implementation thereof amounts to a general ban or policy against wireless services in West

Haven.

92. The Commissioners’ discussion on the record demonstrates the City’s

intent to effectively prohibit wireless services as evidenced by the fact that individual




C&F: 1806112.6 29

Commissioners indicated that their review of AT&T’s application for a Special Permit was pro

forma and that, essentially, the City had enough wireless facilities. This sentiment is codified in

Section 48.1, which provides the purpose of the Telecommunications Regulation as being, in

part, “to reduce the number of antennas and wireless site(s) needed in the future”: The future is

now.

93. The Commission’s decision to grant a Special Permit to the Regional

Water Authority to erect an un-screened (applying any rational interpretation of the “screening”

provisions of Section 48.6.12 and 48.6.13) telecommunications tower atop a water tower in a

residential district (which is expressly prohibited by Section 48.3) subject to the condition that

the tower never be made available for the provision of personal wireless services further

evidences that the City arbitrarily and capriciously applies the Zoning Regulations to effectively

prohibit wireless carriers from providing service in West Haven.

94. AT&T is thus entitled to a judgment and an order compelling the City and

its agents to issue a Special Permit to AT&T for the construction of AT&T’s wireless facility as

proposed in its application for a Special Permit, and compelling the City and its agents to issue

any other required approval and/or permits, including, but not limited to, a building permit by the

Building Inspector to the extent required by local law.

THIRD CLAIM FOR RELIEFViolation Of Section 704 Of The Telecommunications Act: Insubstantial Evidence


forth herein.

96. Section 332(c)(7)(B)(iii) of the Telecommunications Act, as amended by

Section 704, provides that “[a]ny decision by a State or local government or instrumentality

thereof to deny a request to place, construct, or modify personal wireless service facilities shall






C&F: 1806112.6 31

“screening” the Commission subjectively decided to apply) by shielding its own facility from

view, the bases for the denial cited in the Decision were purely pretextual and unsupported by

any evidence, let alone substantial evidence, in the written record, conclusively establishing that

the denial was in violation of Section 332(c)(7)(B)(iii) of the Telecommunications Act.

101. AT&T is thus entitled to a judgment and an order compelling the City and

its agents to issue a Special Permit to AT&T for the construction of AT&T’s wireless

telecommunications facility as proposed in its application for a Special Permit, and compelling

the City and its agents to issue any other required approval and/or permits, including, but not

limited to, a building permit by the Building Inspector to the extent required by local law.

FOURTH CLAIM FOR RELIEF

Violation Of Section 704 Of The Telecommunications Act:

Effective Prohibition/Striking Of Section 48.6.11 Of The Zoning Regulations


forth herein.

103. Section 332(c)(7)(B)(i)(II) of the Communications Act, as amended by

Section 704 of the Telecommunications Act, provides in relevant part that “regulation of the

placement, construction and modification of personal wireless service facilities by any State or

local government or instrumentality thereof shall not prohibit or have the effect of prohibiting the

provision of personal wireless services.”

104. Section 48.6.11 of the Zoning Regulations provides: “Equipment

Building Size. The related unmanned equipment and/or building(s) shall not contain more than

twenty (20) square feet of gross floor area or be more than four (4) feet in height.”

105. On its face and as applied Section 48.6.11 must be stricken as violating the

effective prohibition prong of the Telecommunications Act and as preempted by the




C&F: 1806112.6 32

Telecommunications Act and Congress’s and the FCC’s authority to regulate the field.

106. While the Telecommunications Act reserves to municipalities certain

limited rights in the context of zoning regulation, such rights do not extend to the regulation of a

wireless carrier’s technological and operational matters, or to legislating a preference for certain

technologies not in existence.

107. Section 48.6.11 of the Zoning Regulations, which Section, as part of

Section 48, titled “Telecommunications Regulation” solely applies to the regulation of

telecommunications siting issues, impermissibly regulates technological and operational matters

by imposing mandatory and arbitrary dictates as to the dimensions and space of the equipment

that may be used by a wireless carrier – in this case, AT&T.

108. As a technological and operational matter, AT&T’s wireless facility would

not be able to function if it were compelled to comply with this arbitrary provision because

AT&T cannot fit its equipment in the arbitrarily small structure referenced in the City’s

regulation, and AT&T’s equipment cannot fit in or operate within the arbitrary twenty square-

foot floor area requirement.

109. Under the doctrine of federal preemption, where, as here, Congress and

the FCC regulate the field, the City plainly may not impose separate, stricter requirements on

AT&T’s operational and technological needs than those set forth by Congress and the FCC.

110. AT&T’s proposed wireless facility is in full technological compliance

with FCC standards, and therefore, the City has no right to require by legislation that AT&T

comply with the City’s limitations on space requirements for AT&T’s equipment, nor did the

City have a right to deny AT&T’s application on the premise that AT&T’s equipment room and

proposed equipment did not comply with the City’s space requirements, as these requirements




C&F: 1806112.6 33

are preempted and, if enforced, would effectively prohibit AT&T, and any other wireless carrier

from providing wireless services in West Haven, including the area surrounding the proposed

site, which includes the downtown area of West Haven.

111. On its face and as applied, Section 48.6.11 thus violates Section

332(c)(7)(B)(i)(II) of the Telecommunications Act.

112. AT&T is thus entitled to a judgment and order striking Section 48.6.11 of

the Zoning Regulations and compelling the City and its agents to issue a Special Permit to

construct AT&T’s wireless facility as proposed in its application for Special Permit, and

compelling the City and its agents to issue any other required approval and/or permits, including,

but not limited to, a building permit by the Building Inspector to the extent required by local law.

FIFTH CLAIM FOR RELIEFViolation Of The Due Process Clause Of The Fourteenth Amendment To The

United States Constitution/Striking Of Sections 48.6.12 and 48.6.13 Of The Zoning Regulations


forth herein.

114. Pursuant to the Due Process Clause of the Fourteenth Amendment of the

United States Constitution, a governmental entity is precluded from enacting and enforcing

legislation that is unconstitutionally vague, such as where the legislative prohibitions are not

clearly defined, or where there is a lack of explicit standards that would otherwise serve to

prevent arbitrary and discriminatory enforcement, or where the legislation is so general as to be

unintelligible to any reasonable owner of property.

115. In this case, Sections 48.6.12 and 48.6.13 of the Zoning Regulations

wholly fail under the vagueness doctrine, with the result being that, in the absence of establishing

clear definitions or explicit standards, these provisions impermissibly delegate to the




C&F: 1806112.6 34

Commission the power to make decisions on an ad hoc and subjective basis, with the attendant

dangers of arbitrary, discriminatory and illegal application (forcing an applicant to undertake to

screen a competitor’s facility in derogation of leasehold rights and the law of trespass) which

dangers are amply illustrated here.

116. Section 48.6.12 of the Zoning Regulations provides: “Visual Screening.

Antennas added to an existing facility shall be visually screened so that the antennas are not

visible from surrounding streets.”

117. Section 48.6.13 of the Zoning Regulations provides: “Additions to

Existing Facilities. When antennas are added to existing facilities which are not visually

screened from surrounding streets, the entire facility and antennas shall be screened so as to

assure that all antennas are not visible from surrounding streets.”

118. Section 48.3 provides: “Wireless sites shall be located in the following

order of preference . . . (3) on new towers on bare ground . . . b. without visual mitigation in

business and industrial districts.”

119. Thus, when read in the context of the City’s Zoning Regulations, these

mandates are susceptible to different interpretations which, as this case (especially when

juxtaposed with the contemporaneous granting of a special permit to the Regional Water

Authority to construct a communications tower atop a water tank in a residential zone, without

any requirement that it be shielded from view) demonstrates, are dictated by the whims of the

Commission – i.e., by whether the Commission wants to approve or deny the application at hand

regardless of what action a carrier takes to comply with these unintelligible mandates.

120. That these provisions are tailored to provide absolute and unfettered

discretion to the Commissioners to apply these provisions in any manner that suits the




C&F: 1806112.6 35

Commission’s subjective interest is confirmed by the absence of any guidance within the Zoning

Regulations that would ground the Commissioners in their analysis, as Section 48.2 of the

Zoning Regulations, which contains definitions, is silent on the meaning of “screen.”

121. The lack of any such guideline essentially makes these provisions

susceptible to several competing as well as absurd interpretations.

122. On one hand, as AT&T argued, “screening” could be interpreted to mean

that the antennas and equipment located at the rooftop be shielded completely within enclosures

textured and painted to match the brick façade of the building from view from the “surrounding

streets” (notably there is also no guideline as to what constitutes surrounding streets and whether

that term references a surrounding city block, limited access highways such as I-95, or all streets

in the City where the antennas could be seen on the horizon). On the other hand, “screening”

could mean the physical covering-up of the entire rooftop, and because the provisions give no

guidance as to whatever meaning should be employed, the Commission is free to simply pick

one that suits its own subjective agenda.

123. In the instant case, the Commission clearly used the vagueness of these

provisions to advance an agenda against personal wireless service providers.

124. AT&T’s initial application materials, submitted September 9, 2011,

proposed to screen only that which AT&T legally had the right or ability to screen, its own

facility. Nevertheless, the Commission lay in wait until November 22, 2011 to determine that

AT&T’s proposal was inadequate because it somehow was still not in compliance with the

“screening” requirements.

125. As illustrated on this record, the “screening” provisions gave AT&T and

its representatives no reasonable opportunity to know what was actually prohibited or required,




C&F: 1806112.6 36

nor did the “screening” provisions provide explicit standards which would govern the

Commission’s application of these provisions. The Commission, therefore, felt free to (and did)

manipulate its interpretation of these provisions so that on the eve of issuing its denial, the

Commission could (and did) insist that AT&T somehow did not comply with the “screening”

requirements, and the lack of any explicit guidelines, standards or definitions in the “screening”

provisions gave the Commission cover to do what it wanted to do – which in this case was to

deny AT&T’s application.

126. Thus, Sections 48.6.12 and 48.6.13 of the Zoning Regulations, on their

face, should be stricken as unconstitutionally vague, and Sections 48.6.12 and 48.6.13, which

were cited in the Decision as the provisions with which AT&T supposedly did not comply with,

are unconstitutionally vague as applied.

127. AT&T is thus entitled to a judgment and order striking Sections 48.6.12

and 48.6.13 of the Zoning Regulations and compelling the City and its agents to issue a Special

Permit to permit AT&T to construct a wireless facility as proposed in its application for a Special

Permit, and compelling the City and its agents to issue any other required approval and/or

permits, including, but not limited to, a building permit by the Building Inspector to the extent

required by local law.

SIXTH CLAIM FOR RELIEFStriking Section 48.6.11 Of The Zoning Regulations As

A Violation Of The Commerce Clause Of The United States Constitution


forth herein.

129. Pursuant to the Commerce Clause of Article 1, Section 8, Clause 3 of the

United States Constitution, a municipal entity is precluded by operation of the Supremacy Clause




C&F: 1806112.6 37

of Article VI, Clause 2, from enacting and enforcing legislation or regulations that discriminate

or unduly burden interstate commerce over which Congress has exercised its dominion (in this

case, the Telecommunications Act), such as where a facially neutral municipal regulation

directed toward a legitimate area of local concern imposes an undue burden on interstate

commerce that is clearly excessive in relation to the putative local benefit, such that the

regulation is rendered unreasonable or irrational.

130. Section 48.6.11 of the Zoning Regulations prohibits AT&T and similar

wireless carriers from installing and/or operating “unmanned equipment and/or building(s)” that

“contain more than twenty (20) square feet of gross floor area” or are “more than four (4) feet in

height,” where Section 2.2 of the Zoning Regulations defines “gross floor area” as “[t]he sum of

the gross horizontal areas of the several floors of a building, measured from the exterior faces of

exterior walls . . . excluding floor space permanently devoted to mechanical equipment used in

the operation and maintenance of the building . . . .” such that the putative benefit of Section

48.6.11 is to reduce the aesthetic impact of wireless equipment and/or associated buildings

within the City, yet the effect of Section 48.6.11 is to permit the City to dictate its unreasonable

and irrational technological preferences to the designers, developers, producers, manufacturers

and users of such technology and equipment in the several states and around the world in

contravention of the Commerce Clause of Article 1, Section 8, the Telecommunications Act and

FCC regulations.

131. AT&T’s wireless equipment is designed, developed, produced and

manufactured by companies in the several states and around the world to be standardized and

interchangeable with existing equipment in order to achieve cost-efficient rapid deployment of

service at wireless facilities nationwide, consistent with AT&T’s FCC licenses and federal




C&F: 1806112.6 38

mandate, including with respect to the facility at issue in this action.

132. The equipment proposed in AT&T’s application encumbers more than

twenty (20) square feet of gross floor area by design, as prohibited by Section 48.6.11 of the

Zoning Regulations, and AT&T is not aware of and does not utilize alternative equipment that

would meet the requirement of Section 48.6.11, such that Section 48.6.11 requires AT&T and

the designers, developers, producers and manufacturers of telecommunications equipment in the

several states and around the world to incur potentially prohibitive costs (especially if any

municipality could randomly dictate its own space requirements by mirroring West Haven’s

approach) of creating tailor-made West Haven code-compliant equipment, to forego utilizing

available equipment, and to stall the deployment of wireless service as required by FCC license

and federal mandate, and unless and until AT&T could procure such equipment to fit the

arbitrary space requirements (which equipment, on information and belief, does not exist and

may not be possible to manufacture), AT&T, and every other carrier (represented on the rooftop

at 278 Main Street and operating equipment which, on information and belief, cannot be in

compliance with Section 48.6.11) would continue to be entirely prohibited form siting wireless

facilities, altering or modifying existing wireless facilities and providing service in the City, all

in the name of satisfying a local governmental interest that could be adequately advanced and

protected by less restrictive and nondiscriminatory means.

133. The proposed equipment room within the building at 278 Main Street

would necessarily need to occupy more gross floor area and height than permitted by Section

48.6.11 of the Zoning Regulations, such that AT&T and the developers, designers, producers and

manufacturers of such equipment in the several states and around the world would be force to

undergo the costly process of designing an entirely new code-complaint equipment and/or




C&F: 1806112.6 39

equipment shelter (if such a design is even possible) that would be incompatible with extant

wireless equipment and technology and may be incompatible with the applicable federal and

state laws regulating the health, safety and welfare of workers, including the Occupational

Health and Safety Act of 1970 (OSHA) (as it may not even be possible for a maintenance worker

to enter such an enclosed space based on OSHA standards), in order to satisfy a local

governmental interest that could be adequately advanced and protected by less restrictive

nondiscriminatory means.

134. AT&T is thus entitled to a judgment and order striking Section 48.6.11 of

the Zoning Regulations and compelling the City and its agents to issue a Special Permit to install

a wireless telecommunications facility as proposed in AT&T’s application for a Special Permit,

and compelling the City and its agents to issue any other required approval and/or permits,

including, but not limited to, a building permit by the Building Inspector to the extent required

by local law.

SEVENTH CLAIM FOR RELIEF

Violation Of Connecticut General Statutes § 8-6(a): StrikingSection 48.10 Of The Zoning Regulations As Invalid Per Se


forth herein.

136. Section 48.10 of the Zoning Regulations provides: “No Board,

Commission, Agency or Department shall grant any variances of this section of the Zoning

Regulations.”

137. The “section of the Zoning Regulations” being referred to in Section 48.10

is the Section that exclusively addresses regulation of telecommunications facilities.

138. Connecticut General Statutes § 8-6(a) provides: “The zoning board of




C&F: 1806112.6 40

appeals shall have the following powers and duties: (1) To hear and decide appeals where it is

alleged that there is an error in any order, requirement or decision made by the official charged

with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the

provisions of this chapter . . . (3) to determine and vary the application of the zoning bylaws,

ordinances or regulations in harmony with their general purpose and intent and with due

consideration for conserving the public health, safety, convenience, welfare and property values

solely with respect to a parcel of land where, owing to conditions especially affecting such parcel

but not affecting generally the district in which it is situated, a literal enforcement of such

bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so

that substantial justice will be done and the public safety and welfare secured, provided that the

zoning regulations may specify the extent to which uses shall not be permitted by variance in

districts in which such uses are not otherwise allowed.”

139. Section 48.10 constitutes an impermissible limitation of the powers and

duties of the Zoning Board of Appeals in this instance (and all City agencies and boards in

general), and thereby conflicts with and is preempted by the Connecticut General Assembly’s

law conferring authority to a municipal agency to determine and vary the application of zoning

bylaws, ordinances or regulations without exception.

140. Section 48.10 exceeds the City’s authority and is therefore invalid per se.

141. AT&T was precluded by law from even attempting to seek a variance

from the other illegal provisions of the Zoning Regulations discussed herein by virtue of Section

48.10; and, therefore, any attempt to exhaust administrative remedies prior to bringing this action

would have been futile and only unnecessarily resulted in further judicial proceedings beyond the

instant action.








C&F: 1806112.6 43

alteration or use of buildings or structures and the use of land. Any city, town or borough which

adopts the provisions of this chapter may, by vote of its legislative body, exempt municipal

property from the regulations prescribed by the zoning commission of such city, town or

borough; but unless it is so voted municipal property shall be subject to such regulations. . . .”

155. Section 48.3 of the Zoning Regulations provides: “Site Selection Policies.

Wireless sites shall be located in the following order of preference: 1. On locations owned by

the City of West Haven, land or buildings. 2. In locations where the existing topography,

vegetation, buildings or other structures provide the greatest amount of screening. 3. On new

towers on bare ground in industrial districts: a. With visual mitigation. B. Without visual

mitigation in business and industrial districts. 4. In Residential Districts: Not Permitted.”

156. With respect to use for the transmitting of wireless services, Section 48.3

of the Zoning Regulations establishes a first-priority siting preference for municipal-owned

property or buildings.

157. AT&T’s proposed use of the rooftop of the building at 278 Main Street is

not a municipal use for which a preference for municipal property may be valid under

Connecticut law.

158. The first-priority preference established by Section 48.3, therefore, cannot

be enforced by the Planning and Zoning Commission because such a preference is outside the

authority conveyed to the Commission by General Statutes § 8-2, which authority is in

derogation of common law property rights and should be construed against the City.

159. AT&T is thus entitled to a judgment and order striking Section 48.3 of the

Zoning Regulations and compelling the City and its agents to issue a Special Permit to AT&T to

construct a wireless facility as proposed in its application for a Special Permit, and compelling




C&F: 1806112.6 44

the City and its agents to issue any other required approval and/or permits, including, but not

limited to, a building permit by the Building Inspector to the extent required by local law.

WHEREFORE, AT&T respectfully demands judgment of this Court on its Claims

for Relief as follows:

1. On the First Claim For Relief, a judgment and an order striking Section

48.6.13 from the Regulations and compelling the City and its agents to issue a Special Permit to

AT&T for the construction of AT&T’s wireless facility as proposed in its application for a

Special Permit, and compelling the City and its agents to issue any other required approval

and/or permits, including, but not limited to, a building permit by the Building Inspector to the

extent required by local law.

2. On the Second Claim For Relief, a judgment and an order compelling the

City and its agents to issue a Special Permit to AT&T for the construction of AT&T’s wireless

facility as proposed in its application for a Special Permit, and compelling the City and its agents

to issue any other required approval and/or permits, including, but not limited to, a building

permit by the Building Inspector to the extent required by local law.

3. On the Third Claim For Relief, a judgment and an order compelling the

City and its agents to issue a Special Permit to AT&T for the construction of AT&T’s wireless

facility as proposed in its application for a Special Permit, and compelling the City and its agents

to issue any other required approval and/or permits, including, but not limited to, a building

permit by the Building Inspector to the extent required by local law.

4. On the Fourth Claim For Relief, a judgment and order striking Section

48.6.11 of the Zoning Regulations and compelling the City and its agents to issue a Special

Permit to AT&T for the construction of AT&T’s wireless facility as proposed in its application







Documents

AT&T vs. West Haven