Federal District Court Judge Garland Burrell quickly denied NewPath’s motion for a preliminary injunction. The ruling is tentative and NewPath could attempt to argue and convince the judge to change his mind, but given the rationale by the judge, it seems highly unlikely that he would.
In part, in order to prevail on a preliminary injunction, the plaintiff has to show not only irreparable harm from changing the status quo, but also that they are likely to prevail in the ultimate litigation. The Judge ruled that there is no evidence that shows that they are likely to prevail. He concluded, “Since NewPath has not made a “clear showing” that it is entitled to the preliminary injunctive relief it seeks, NewPath’s motion for a preliminary injunction is DENIED.”
In November of 2009, NewPath, a telecommunications company, had pulled out encroachment permits to begin constructing a telecommunications network in the city. However, residents began to complain to the city and City Manager Bill Emlen quickly issued a stop work notice and revoked the Permits on the basis that they were issued improperly and in violation of the city’s Wireless Telecommunications Facilities Ordinance.
NewPath appealed that decision, but the City Council on January 19, 2010 denied the appeal and upheld Mr. Emlen’s decision. NewPath then filed a lawsuit against the City of Davis including a motion for a preliminary injunction.
In their motion NewPath argues that they have suffered irreparable harm and should be able to proceed building their wireless system as their lawsuit proceeds.
“NewPath seeks an order from the Court canceling the revocation, reinstating the Permits, and declaring the stop work notice null and void. This motion is made pursuant to the Court’s diversity jurisdiction under 42 U.S.C. § 1332 on grounds that the parties are citizens of different states and the amount in controversy exceeds $75,000. The City’s actions are contrary to and preempted by state and federal law and immediate and irreparable injury will result to NewPath unless the activities described above are enjoined pending trial of this action.”
According to Judge Burrell, the plaintiff must meet a high legal standard in order to gain a preliminary injunction.
He must establish:
“that he is (1) “likely to succeed on the merits”; (2) “likely to suffer irreparable harm in the absence of preliminary relief”; (3) “the balance of equities tips in his favor”; and (4) “a preliminary injunction is in the public interest.”
Ultimately Judge Burrell rejected them on all four criteria.
“The purpose of a preliminary injunction is to preserve the relative positions of the parties – the status quo – until a trial on the merits can be conducted.”
Judge Burrell argues however, that the effect of the order which would reinstate the encroachment and building permits would take affirmative action on the part of the city.
“The City argues NewPath seeks a “mandatory” injunction and that the facts and law do not clearly favor granting NewPath the relief it seeks. NewPath rejoins, arguing it is requesting an order prohibiting the City from interfering with the construction of its DAS. However, NewPath’s proposed preliminary injunction order seeks to have the Court compel the City to reinstate the encroachment and building permits the City has revoked. The effect of such an order would require the City to take affirmative action.”
NewPath argues that the city exceeded their authority when they revoked the encroachment permits. Specifically:
““[u]nder the California Constitution, state law, and related rulings of the CPUC, the City does not retain the authority to require that NewPath submit to the discretionary permitting process outlined in the WTF Ordinance as a precondition of construction of telecommunication facilities or, in the alternative, require that NewPath submit to an unspecified exemption process that is neither codified nor contemplated in the City’s WTF Ordinance.””
On the other hand, the City’s WTF Ordinance seeks to “provide uniform standards for the community desired design, placement, permitting, and monitoring of telecommunication facilities consistent with applicable federal requirements.”
NewPath makes a twofold argument suggesting that state laws preempt and preclude the application of the ordinance to NewPath’s project and second that the California Public Utilities Code preempts it as well.
Judge Garland however cites NewPath v. the City of Irvine where the district court rejected NewPath’s preemption argument as evidence that “NewPath has not demonstrated that it is likely to
succeed on the merits of this preemption claim.” (Remember in the preliminary phases, the burden is very high on the mover of a given petition).
Likewise, he rules that “NewPath has not demonstrated that the City’s WTF Ordinance is an impermissible “time, place and manner” regulation” moreover that NewPath did not show the city’s exercise of “time, place and manner” authority which would apply to the CPUC, therefore, he again rules that NewPath has not demonstrated that it is likely to succeed on the merits of its preemption claims.
NewPath also argues that the city’s permit decision violates the law because it “effectively prohibits the provision of personal wireless services.” They further argue that this decision was effectively made a “final action” concerning the denial of services, but again Judge Garland disagrees. He writes, “the City Council’s decision upholding the revocation of NewPath’s encroachment permits is not a “final action” within the meaning of [the law].” Rather the City Council’s decision only addressed whether the City Manager had properly revoked NewPath’s permits. The issue of whether the WTF Ordinance applies to NewPath and whether NewPath was entitled to an exemption was not presented to the Council nor was it decided by the Council.
The Judge Concludes since the Council made no final decision, NewPath’s claims are not ripe for judicial review. In other words, NewPath would have to go back through the proper process and then be denied in order for the court to even review it.
NewPath also makes a vested property rights argument, which the city counters “[t]here is no vested right to [an] invalidly issued permit[].” NewPath on the other hand, “contends that the thirty-six encroachment and building permits were properly issued to it because it is exempt from the City’s WTF Ordinance, or alternatively, application of the City’s WTF Ordinance is invalid under state and federal law.”
The legal standard is that they have to show that irreparable injury as likely rather than a mere possibility, they must be demonstrated rather than merely alleged.
Judge Garland rules:
“NewPath has not demonstrated that the permits were properly issued or that their revocation was erroneous. Therefore, NewPath has not demonstrated it is likely to succeed on the merits of this claim.”
Judge Garland also rules on the irreparable harm claim. NewPath’s argument stems from a contention that the Davis decision has caused it to lose revenue, damage its reputation and goodwill and impaired its ability to compete in its industry. The City counters that “NewPath’s only asserted injury is lost business revenues and goodwill” which are injuries that do “not rise to the level of irreparable injury.”
Judge Garland rejects this claim as well ruling that:
“NewPath has not provided sufficient evidence to conclude that its alleged injuries to its reputation, goodwill, and ability to compete, constitute irreparable harm… Further, NewPath has not shown that any loss of revenue could not be compensated through an award of damages, should it prevail at trial. NewPath, therefore, has not clearly shown that it will suffer irreparable harm absent an award of injunctive relief.”
Chain of Events
Judge Garland lays out the chain of events in his ruling.
He writes:
“Between January 2009 and October 2009, NewPath engaged in discussions with City officials concerning NewPath’s proposal to build a DAS within the City, which included discussions with the City’s Chief Information Officer, Principal Planner, Assistant Director of Public Works, Electrician and Engineer. (Sears Decl. ¶¶ 4-14.) NewPath’s proposed DAS calls for the installation of twenty-four wireless antenna facilities (“nodes”) within the City. (Marshall Decl. ¶ 4.) NewPath would construct seventeen wooden or metal poles, approximately forty-two feet high, to host nodes, while the other nodes would be placed on existing telephone or electric poles. (Id.) Each node would be connected to the other nodes and a central hub by fiber optic cable. (Kavanagh Decl. ¶ 10.) NewPath explained to City officials that “under the CPUC’s rules . . . [NewPath only] need[ed] [to] obtain . . . encroachment permits from the City” and did not need to comply with the City’s WTF Ordinance. (Sears Decl. ¶¶ 5, 16, 17; Garcia Decl. ¶ 3.) NewPath also spoke with City officials about the best location and configuration for each node, in order to minimize the impact on local residents. (Sears Decl. ¶ 17.)
Following these discussions, the City issued NewPath thirty-six encroachment and related building permits between September 2, 2009 and November 13, 2009, for the construction of the proposed DAS. (Marshall Decl. ¶ 2.) NewPath obtained a “Notice to Proceed” (“NTP”), from the Energy Division of the CPUC on November 25, 2009, which granted NewPath “authority to proceed with the construction” of the Davis DAS project. (Mot. for Prelim. Inj. Ex. 7.) The NTP states: “[t]he Energy Division has reviewed NewPath’s proposal to construct the Davis DAS project in the City of Davis, California and has determined that the proposed construction activities are consistent with the activities found by the Commission to be categorically exempt from the requirements of [the California Environmental Qualify Act (‘CEQA’)].” (Id.)
The City Manager issued a “Stop Work Notice,” on November 30, 2009, ordering NewPath to “cease and desist all work” authorized by the thirty-six permits, “to allow for investigation of potential conflicts with the City’s [WTF Ordinance] and to determine whether [the] permits were issued properly.” (Mot. for Prelim. Inj. Ex. 3.) Shortly thereafter, the City Manager rescinded all thirty-six of NewPath’s permits in a letter dated December 5, 2009 (the “Rescission Letter”), stating the permits were improperly issued…”
We know from the hearing two weeks ago, that the Community Development Director had gone on a walk-through at village homes. To date the City Manger has claimed that he was not informed of these meetings. From our perspective it is unlikely that at the very least the department heads of Community Development and Public Works were involved and it would seem odd that neither would tell Bill Emlen of talks that had gone on for eleven months. However, no specific information at this point would verify that hunch.
Concluding Comments
While the odds are stacked against an entity in a preliminary injunction, where the burden is extremely high for the plaintiff, it seems highly unlikely given the emerging facts that NewPath would prevail in a trial, and yet from NewPath v. City of Irvine, we know that is exactly their modus. The Vanguard will continue to monitor this case, in particular, since it sheds light on the what transpired and how the city came to erroneous issue encroachment permits.
—David M. Greenwald reporting
Corrections: that’s ‘Judge Burrell, not ‘Garland’; and even though technically correct, in light of common ‘net shorthand you might rethink that ‘WTF Ordinance’.
As to the ruling, like I’ve written before, this entire fiasco is something that will serve to benefit the lawyers only. In the end, if NewPath decides the pain is worth the gain, permits will be reissued for the DAS network. If not, there’s always the “google project”. But even they might get a little skittish dealing with a community far more interested in assigning blame than solving problems.
I, for one, am interested in assigning responsibility and taking appropriate corrective action.[quote]We know from the hearing two weeks ago, that the Community Development Director had gone on a walk-through at village homes. To date the City Manger has claimed that he was not informed of these meetings. From our perspective it is unlikely that at the very least the department heads of Community Development and Public Works were involved and it would seem odd that neither would tell Bill Emlen of talks that had gone on for eleven months.[/quote]1. Who in the chain of command made the decision to keep the City Council in the dark?
2. Did Hess really fail to brief Emlen?
3. Did the staff rely on NewPath for guidance about the regulations, or was Steiner involved?
This incident indications a fundamental *problem* with the management of the city that needs to be *solved*.
Unfortunately, problems involving personnel often require a determination of responsibility (blame) before they can be solved (corrective action).
I beg to differ with Norm. Finding blame,usually leads to ‘punishment’, which will not solve the problem(s) in the future. It may lead to others being afraid to take ANY action. Usually, an examination of the facts and the processes employed will lead to conclusion that a process is flawed and/or lacking steps. The process can then be corrected/enhanced. If the process(es) are sufficient, and someone failed to follow them, then whether sufficient training was in place should be looked at. If training was accomplished, and the person failed to take appropriate action, then there may well be a place for “blame”. The NewPath situation sure looks like a suspect process to me. I’d look at the process.
hpierce:
I’m talking about determining responsibility. “Blame” is Neutral’s rhetoric.
And without appropriate corrective action, similar problems within the organization will continue to persist.
Blaming the problem on “process” is a standard CYA dodge.
Do you really believe the city needs to establish a process regarding notification of one’s supervisor about major infrastructure projects involving third parties? Likewise, do you really think that “lower level staff” (the City’s characterization, not mind) need to be trained not to rely on the applicant for interpretation of complex legal issues rather than the City Attorney?
Norm (and all)… I believe that if you have been trained & authorized to deal with ducks, and a duck comes along and requests a permit, you issue the permit to the duck, and you would not generally involve the supervisor. Let’s say, a vulture would be immediately recognized as someone who has to go thru a separate process before a permit could be considered. You would insist that the vulture go thru the process, and the supervisor may/or may not be notified because you were following the process. If a goose comes in, and you are not trained and/or authorized to deal with a goose (or to be able to differentiate between a goose, a duck and a vulture), you would either ask the supervisor how to proceed OR that you were about to issue a permit to the goose as you would the duck, for verification. Here, I think we have a goose, who strenuously purports to be a duck, but in reality is a vulture.
I still believe that a process analysis is appropriate. The goose had not been seen here (nor in almost any jurisdictions) before.
As I understand it, an experienced, professional evaluation of the proposal may not have triggered the ‘raised hairs on the back of the neck’ alarm that would have prompted someone to seek legal counsel. The lack of a trigger might be a deficiency of process.
Example: AT&T is rolling out U-Verse service. This means additional pedestals placed in PUE’s, in folks lawns/landscaping, which have been being installed for months. They obtained permits, worked with property owners, and all is well (as far as I know). There are PG&E, Comcast, AT&T facilities all over town, in right of way that add facilities all the time. Does this go above first line supervisors (most of whom are non-management)? NO
If complex legal issues are recognized, staff, thru the appropriate chain of command, generally know that the CM should be consulted (if not already delegated to them) and referred to City Attorney. I can see that a complex issue could be “hidden”.
Norm… it would be interesting to know, if you were familiar with the actual facts, and with the staff’s experience and knowledge, what you would have done. Too many if’s.
The process does need to be investigated, at a minimum, to come up with “lessons learned”.
Norm’s clarification between ‘blame’ and ‘responsibility’ is noted, and appreciated. My comments regarding process vs. responsibility/blame remain.
Norm your “CYA” comment is noted as a “brush off” of analytical thinking. Dismissive. Un-Helpful. Fully your right under free speech.
hpierce:
1) 5 min of due diligence on Google would have been adequate for any member of the staff to discover that NewPath was involved in litigation with Irvine.
2) The CYA comment was not a brush off but rather a simple statement of reality. If it quacks like a duck …
BTW Your analysis ignores David’s point that Emlen’s claim that he was not in the loop lacks credibility.
Norm (et al.) … what was on Google in May 2009 re: NewPath? Did/do you know? If you did, why didn’t you say something (20/40 hindsight & all that)… I know of a city employee who did a search in that period, who was suspicious of the NewPath proposal, and could find nothing readily apparent that there was something amiss… Norm, are you suggesting that anyone, any entity that applies for an encroachment permit should be fully vetted by a high level internet search, prior to issuing a permit? Should a public employee fully investigate, by Google, or any other search engine, determine whether AT&T, Comcast, PG&E, etc. MIGHT be exceeding their rights in applying for a permit? What is “due diligence” on the internet, when anybody can post anything on it?
Perhaps, Norm, if you are so much wiser and knowledgeable, you could apply for a city position, or volunteer your expertise to the City.
“Simple statement of reality”… get a clue… you stated a supposition, based on your interpretation of my words, which others may judge as being factual or not. You do not define either my, others, nor an absolute measure of “reality”. I humbly suggest you get over yourself.
BTW… I did not “ignore” David’s point… I did not address it, as I responded to Norm’s post… I make no judgment on the City Manager’s involvement, as I have no basis to. Do you, or David?
Best wishes for a good weekend to all…
hpierce:
I think you should stick to the duck stories. That being said, I will accommodate you with a reply since you insist on being confrontational.
“what was on Google in May 2009 re: NewPath? Did/do you know? If you did, why didn’t you say something (20/40 hindsight & all that)”
Two minutes on Google revealed the following facts. First, the NewPath fiasco did not become public until 12/1/09. As a consequence, there was obviously no way for us members of the general public to speak out in May.[quote]Cell tower project stirs controversy
Village Homes site is private
Crystal Lee
Enterprise staff writer
Published: December 1, 2009[/quote]Second, the NewPath suit of Irvine dates back to 2006. This was long before they came knocking at our door. If PW or CD had done adequate vetting of the applicant, they would have seen that NewPath had a history of using litigation to try and force it’s way into a community. Sounds like a piece of information that one might want to share with one’s Department Head, City Attorney, or City Manager. Maybe they did.[quote]Newpath Networks LLC v. The City of Irvine, California
Case Number:8:2006cv00550
Filed:June 12, 2006
Court:California Central District Court
Nature of Suit:Other Statutes – Cable/Satellite TV[/quote]”… I know of a city employee who did a search in that period, who was suspicious of the NewPath proposal, and could find nothing readily apparent that there was something amiss…”
Really? Should we conclude that you are playing apologist because you have some sort of personal relationship with someone on the staff?
[quote]hpierce:
1) 5 min of due diligence on Google would have been adequate for any member of the staff to discover that NewPath was involved in litigation with Irvine.
Two minutes on Google revealed the following facts. First, the NewPath fiasco did not become public until 12/1/09. As a consequence, there was obviously no way for us members of the general public to speak out in May.[/quote]
Ok… so Norm, you’re saying that staff was negligent for not discovering information on Google in May 2009, then in a subsequent post you assert that the same information was not available to the public until December 2009?
You sir, have no credibility in this. Apologist? NO… As I said, look at facts, processes, and dependent on what is discovered, assign responsibility. I’d leave “labeling” such as ‘apologist’ to those incapable of analysis.
If DPD’s analysis/scenario is accurate (and we don’t know for sure), and Katherine Hess did a walk through of Village Homes, and clearly saw that a 40 foot pole was going in someone’s front yard, that should have been enough to raise alarm bells in anyone’s mind. Why didn’t it? Katherine Hess is claiming it did, and she advised Bill Emlen. Bill Emlen is claiming Katherine Hess never told him. It seems clear Bill Emlen does not have a good handle on what his staff does or doesn’t do. However, NewPath is certainly complicit in this as well – they should have known putting a 40 foot pole in someone’s front yard would cause a stir, they chose to make markings to begin installment over the Thanksgiving holiday, when no one was likely to be home. Plenty of “blame” to go around…and a wake-up call to: the city that it needs to be more careful about its permitting process; its process by which employees communicate with the City Manager; and NewPath needs an attitude adjustment!
“you’re saying that staff was negligent for not discovering information on Google in May 2009, then in a subsequent post you assert that the same information was not available to the public until December 2009?”
I think Norm is claiming (accurately) that while the staff knew about newpath coming to Davis as early as January 2009, the public did not until December, 2009 after it ended up in the paper.
hpierce:
“those incapable of analysis”
Is that the best you’ve got? When you have something intelligent to say, I’ll respond to your arguments.
[quote]
Is that the best you’ve got? When you have something intelligent to say, I’ll respond to your arguments.[/quote]As will I, in the future. In a battle of wits….