Unreported / Non-Citable
Background
Vertical Bridge applied to San Benito County for a conditional use permit to build a 90-foot "monopine" wireless tower and ground equipment area on a 2.36-acre parcel at 358 Seely Avenue in unincorporated San Benito County. T-Mobile intended to lease space on the tower to provide wireless service. The application identified a coverage gap, discussed alternative locations and colocation opportunities, and sought a variance from the County's 500-foot residential setback requirement. On March 5, 2025, County staff recommended approval, finding the project consistent with the General Plan and County telecommunications policies.
The Planning Commission nevertheless denied the application after a March 19, 2025 hearing, citing proximity to residences and a daycare facility, insufficient proof that no feasible alternatives existed, and concerns about surrounding sensitive receptors. The Board of Supervisors affirmed the denial after a June 24, 2025 public hearing and issued a written resolution on August 12, 2025 responding to Vertical Bridge's appeal grounds. T-Mobile and Vertical Bridge then sued under the Telecommunications Act, alleging both an effective prohibition of personal wireless service and a denial unsupported by substantial evidence. All parties consented to magistrate-judge jurisdiction.
The Court’s Holding
The court granted summary judgment on the effective-prohibition claim under the Ninth Circuit's traditional two-part test: a significant gap in personal wireless service and use of the least intrusive means to remedy that gap. It did not decide whether the FCC's broader "materially inhibits" standard displaced that test because the plaintiffs prevailed under the standard they characterized as narrower. Their application materials and RF expert's report established a prima facie case on both elements. The County criticized the expert's methodology but supplied no rebuttal expert or other technical evidence, despite having opportunities for expert discovery under a scheduling order whose deadlines were repeatedly extended. Attorney argument and speculation therefore did not create a genuine factual dispute, and the court held that the permit denial violated the TCA.
The court expressly denied summary judgment on the substantial-evidence claim. Because a locality needs substantial evidence for only one valid reason for denial, the plaintiffs had to show no triable issue supporting any reason, and they failed to do so. Disputes remained over whether the "sensitive receptors" finding was an impermissible proxy for RF-emissions concerns, particularly because the Board repeatedly disclaimed reliance on RF concerns. The court also identified factual disputes concerning visual and community character: County provisions permitted broader aesthetic considerations than the plaintiffs acknowledged, and the Board addressed visibility from private property and explained why the stealth design remained inadequate. The court ordered the parties to meet and confer on the terms of an injunction requiring the County to approve Vertical Bridge's application and to file the proposed injunction and a proposed judgment by December 4, 2026. It also denied the County's request for dismissal or summary judgment as procedurally improper and substantively unwarranted.
Key Takeaways
- A wireless provider's comprehensive application and unrebutted expert evidence can establish both a significant service gap and the least intrusive means of closing it.
- A locality's criticisms of the provider's technical evidence, without contrary expert or technical evidence, may be insufficient to defeat summary judgment on an effective-prohibition claim.
- The substantial-evidence claim was not merely left undecided: the court denied the plaintiffs' summary-judgment motion on it because a provider must eliminate factual support for every potentially sufficient reason for the local denial.
- The court ordered development of an injunction requiring permit approval, but the proposed injunction and judgment remained to be filed by December 4, 2026; the order did not itself set out the final injunction terms.
Why It Matters
The decision illustrates how the effective-prohibition and substantial-evidence provisions of the TCA can produce different summary-judgment outcomes in the same permit dispute. Even assuming disputed local findings could survive deferential substantial-evidence review, the County's failure to rebut the coverage-gap and least-intrusive-means showing independently established an effective prohibition, and the court entered judgment for the plaintiffs on that claim while denying their motion on the other.
The ruling also underscores the practical importance of expert discovery in wireless-siting litigation. The court emphasized that the scheduling order allowed both sides to designate experts and that deadlines had been extended several times at the parties' joint request, leaving the County with ample opportunity to obtain technical rebuttal evidence. Its remedial approach follows decisions treating permit-approval injunctions as appropriate for effective-prohibition violations, while leaving the precise injunction language and judgment for the parties' required submission by December 4, 2026.