ANSWER to Complaint for Declaratory Judgment and Injunction by City of Albany.

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1 CRAIG LABADIE (State Bar No. 101681) CITY ATTORNEY

2 CITY OF ALBANY

3 T. PETER PIERCE (Bar No. 160408) ierceTirwulaw.com

4 AVID-G. ALDERSON (Bar No. 231597) tbaileviirwulaw.com

5 RICHARDS, WATSON & GERSHON A Professional Corporation

6 44 u Street, Suite 3800 San Francisco, California 94104-4811

7 Telephone: 415.421.8484 Facsimile: 415.421.8486

8 Attorneys for Defendant

9 City of Albany

:AO 2•45,

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17 Plaintiff,

18 VS.

19 CITY OF ALBANY,

20 Defendant.

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GTE MOBILNET OF CALIFORNIA LIMITED PARTNERSHIP, a California limited partnership d/b/a VERIZON WIREL SS„

Case No. CV 11-06155 LB

ANSWER TO COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTION

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA,

OAKLAND DIVISION

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Defendant., Cit\ of Albany (the ( ror itselfand no other defCndant.

answers the Complaint for Declaratory Judgment and Injunction the -Complaii t

filed on Decemher 7, 2011, by admitting, denying, and alleging as follows:

1. .1 - he Complaint speahs for itself. The pro\ isions added to the

Co m m tilik: mion. \,:tILl 1(mo tI einei \ • I I C 1 I \ ;Rimifl ed.

Case4:11-cv-06155-LB Document10 Filed02/06/12 Page1 of 21

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2. The United States Constitution and the federal Communications Act

2 speak for themselves. The Wireless Communication Facilities Ordinance and related

3 definitions collectively the "Ordinance"), codified in the Albany Municipal Code,

4 speak Ibr themselves. Except as specifically admitted, the City denies the allegations

5 contained in paragraph 2 of the Complaint.

3. The Ordinance speaks for itself. Except as specifically admitted, the

City denies the allegations contained in paragraph 3 of the Complaint.



5. The Ordinance speaks for itself. The City admits and alleges that it

denied an application by Crown Castle, filed on behalf of Verizon Wireless, for a

conditional use permit and design review to modify a nonconforming wireless

facility located at 423 San Pablo Avenue (the "Existing Facility"). The City has

insufficient information or belief to admit or deny the allegations in the third and

fourth sentences in paragraph 5 of the Complaint, and on that basis the City denies

the allegations in the third and fourth sentences in paragraph 5 of the Complaint.

Except as specifically admitted, the City denies the allegations contained in

paragraph 5 of the Complaint.

6. The City has insufficient information or belief to admit or deny the

allegation that "this upgrade is significant to Verizon Wireless and its customers,"

21 and on that basis denies the alleuation that this upgrade is significant to Verizon

Wireless and its customer' 1:xcept as specifically admitted. the City denies the

allegations contained in paragraph 6 oldie Complaint.

7. The City admits and alleges that it denied an application by Crown

Castle, filed on behallol Verizon \Vireless. lor a conditional use permit and design

cc\ ic\\ to modify the Hxistinu Facility. I. \cent as specifically admitted. the City

denic- c ii leat dni eont...6ned in pw . :1 - ; i1 -111 he .oniphitlf

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ue and correct copy of which is attached as Exhibit A to the Complaint) and speak

or themselves. The City admits and alleges that the Nxistina Facility was lawfully

constructed and is currently non-con forming under the Albany Municipal Code. t he

laws governing the authority of the City and the federal government speak for

themselves. Except as sped tleally admitted, the City denies the allegations

contained in paragraph 8 of the Complaint.

9. The reasons for the denial are set forth in Resolution No. 2011-56 and

speak for themselves. Statements made by the City's planning staff and outside

consultant speak for themselves. Except as specifically admitted, the City denies the

allegations contained in paragraph 9 of the Complaint.

10. The Ordinance speaks for itself. The Albany Municipal Code speaks for

tself. The City has insufficient information or belief to admit or deny the allegations

in the fourth sentence of paragraph 10 of the Complaint, and on that basis the City

denies the allegations in the fourth sentence of paragraph 10 of the Complaint.

Except as specifically admitted, the City denies the allegations contained in


11. The Ordinance speaks for itself Except as specifically admitted, the


12. The Ordinance speaks for itself. New York SMSA Ltd. v. Town of

C arkstown, 612 F.3d 97, 105 (2d Cir. 2010) speaks for itself. The federal

minunications Act speaks for itself, [wept as specifically admitted, the City

denies the all ,lations contained in paragraph 1 2 of the Complaint.

The City admits and alleges that on No\ ember 7. 2011, it denied an

24 application by Cro\\ 11 Castle. riled on behalror\ crizon Wireless, for a conditional

use permit and design review for modification of the Ilxisting Facility. The City

admits and alleLles that a true and correct copy of the denial. Resolution No. 2011

:111;1C 11Ct \ 11) C ( ' 111 PL 111.11 Rc . 01 1 1 1 ion \() 2011-7;0 ,; n 11;; Hr

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denies the allegations contained in paragraph 13 of the Complaint.

2 14. The City has insufficient information or belief on the subject to permit

to admit or deny the allegations in paragraph 14 of the Complaint and, basing its

denial on that ground, denies the al legations in paragraph 14 of the Complaint.

5 15. The City admits the allegations in paragraph 15 of the Complaint.



8 18. 47 U.S.C. § 332(c)(7)(B)(v) speaks for itself. Except as specifically

9 admitted, the City has insufficient information or belief on the subject to permit it to

10 admit or deny the allegations in paragraph 18 of the Complaint and, basing its denial

11 on that ground, denies the allegations in paragraph 18 of the Complaint.

19. The City has insufficient information or belief on the subject to permit it


4 denial on that ground, denies the allegations in paragraph 19 of the Complaint.

5 20. The City has insufficient information or belief on the subject to permit it

6 to admit or deny the allegations in paragraph 20 of the Complaint and, basing its


Pew 8 21. The Act, rules, regulations, and orders promulgated by the FCC speak ro

19 for themselves. Except as specifically admitted, the City has insufficient information

20 or belief on the subject to permit it to admit or deny the allegations in paragraph 21

21 of the Complaint and, basing its denial on that ground, denies the allegations in


2. 1 he Cit\ lias insufficient intbrmation or belief on the subject to permit i t


denial on that ground, denies the allegations in paragraph 22 of the Complaint.

The Citv admits the allegations in paragraph 23 or the Complaint.

lie ( I\ has insullicicrn inhrniatiot or on the , hbiect it !mit it

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26. The FCC "build out" requirements speak for themselves. Except as

specifically admitted, the City has insufficient information or belief on the subject to

permit it to admit or deny the allegations in paragraph 26 of the Complaint and,

basing its denial on that ground, denies the allegations in paragraph 26 of the

Complaint.

27. The City admits the allegations in paragraph 27 of the Complaint with

he exception of the location of the centerline of the antenna panels owned by

MetroPCS. The centerline of those antenna panels is 49 feet high.

28. The building permit issued by the City for the Existing Facility speaks

for itself. The City admits and alleges that the past and present regulations of the

California Public Utilities Commission speak for themselves. The City has

Insufficient information or belief as to exactly when Verizon Wireless installed the

monopole and began operating the Existing Facility and, basing its denial on that

ground, denies those allegations. Except as specifically admitted, the City denies the

allegations in paragraph 28 of the Complaint.

29. The City has insu Ificient information or belief on the subject to permit it

to admit or deny the allegations in paragraph 2) or the Complaint and, basing its

denial on that ground, denies the allegations in paragraph 7' [the Complaint.

30. The City admits and alleges that in 2001 the Cit\ 's Community

Development Director granted an administrative approval authorizing NtetroPCS to

collocate on an existing monopole and install an array of antennas on the pole at a

2 ) height of approximatel\ 49 feet. The Stall Report for th letroPCS rue i 1 i ty dated ,

t I 2001 . reJL--, l'or Ho! I he ( 'ity admii and [ha! \ ktrol)(

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admitted, the City denies the allegations contained in paragraph 30 of the Complaint.

31. The Radio Acts of 1912 and 1927 speak for themselves. FRC v. Neslon

Bros. Bond & i'forigage Co., 289 U.S. 266, 279 (1933) speaks for itself. Except as




Complaint.

32. The Communications Act of 1934 and NBC v. United States, 319 U.S.

190, 214 (1943) speak for themselves. Except as specifically admitted, the City has

insufficient information or belief on the subject to permit it to admit or deny the

allegations in paragraph 32 of the Complaint and, basing its denial on that ground,

denies the allegations in paragraph 32 of the Complaint.

33. The rules and regulations promulgated by the FCC speak for

themselves. Future Use of FrequencyBand 806-960 MHz, 46 F.C.C.2d 752, 766-67

(1974) speaks for itself. Except as specifically admitted, the City has insufficient

information or belief on the subject to permit it to admit or deny the allegations in

paragraph 33 of the Complaint and, basing its denial on that ground, denies the


34. 47 U.S.C. Sections 303 and 309(j) speak for themselves. Except as

specifically admitted. the City has insufficient information or belief on the subject to

permit it to admit or deny the allegations in paragraph 34 of the Complaint and.

in its denial on that ground, denies the allegations in paragraph of the

omplaint.

.Velt . York S.1LS..1 Ltd v. Toivii o/ Ciark.slouw. 612 F3d 97, 105 (2d Cir.

2010) speaks for itself. rxeept as specifically admitted. the City has insulticient

in or belief' on the subject to permit it to admit or dem thc all ouations iii

flame' ph thL C(uhrlaint and hw;in,L. ,, its denial that mouH(1 den ie the


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36. Section 332 to the Communications Act, and the Omnibus Budget

2 Reconciliation Act of 1993 speak for themselves. Except as specifically admitted,

3 the City has insufficient information or belief on the subject to permit it to admit or

4 deny the allegations in paragraph 36 of the Complaint and, basing its denial on that

ground, denies the allegations in paragraph 36 of the Complaint.

37. 47 U.S.C. § 332(c)(3)(A), H.R. Rep. No. 103-111(1993), Petition on

Behalf of the State of Conn., 10 F.C.C.R. 7025 (1995), and Conn. Dep't of Pub. Util.

Control v. FCC, 78 F.3d 842, 845 (2d Cir. 1996) speak for themselves. Except as




Complaint.

38. The TCA, 110 Stat. 56 (1996), and Verizon Maryland, Inc. v. Pub.

Service Comm 'n of Md., 535 U.S. 635, 638 (2002) speak for themselves. Except as




Complaint.


20 to admit or deny the allegations in paragraph 39 of the Complaint and, basing its

21 denial on that ground. denies the allegations in paragraph 39 of the Complaint.

40. 47 1 S.C.SpCakS fbr V.Nk.'ept as specifically admitted, the

ity has insufficient information or belielon the subject to permit it to admit or deny

24 the alleuations in paragraph 40 of the Complaint and, basing its denial on that

ground, denies the allegations in paragraph 40 of the Complaint.

41. Section _53 speaks for liSCI CC11 1 us pcci FICZIIIV admitted. the CitN

jom or N c hc tibcct 10 ncr mit don,

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den ies the allegations in paragraph 41 of the Complaint.

2 42. Sections 332 and 253 speak for themselves. Except as specifically

admitted, the City has insufficient information or belief on the subject to permit it to


5 on that around, denies the allegations in paragraph 42 of the Complaint.

6 43. Section 332 speaks for itself. Except as specifically admitted, the City

7 has insufficient information or belief on the subject to permit it to admit or deny the

8 allegations in paragraph 43 of the Complaint and, basing its denial on that ground,

9 denies the allegations in paragraph 43 of the Complaint.













47. Section 32 and 24 [CC 1:cd. 13994 (2009) speak lOr themselves.

Section 332 speaks lot' itself'. I -:xcept as specifically admitted. the City has

24 1 insufficient inlormation or belief' on the subject to permit it to admit or den\ the

2.5l allegations in paragraph 47 ol the Complaint and. basing its denial on that ground.

denies the all gations in paragraph 47 of Complaint.

[he Ordinance and its findings and \ ,,/

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th u t lie ( ' in IiH. Wld 1 : 11)1 !1:i1 an KyJnicr

specifically admitted, the City denies the allegations in paragraph 48 of the

2 Complaint.

3 49. The Ordinance and 47 U.S.C. l!j 332 speak for themselves. The City

4 admits and alleges that the majority of its land area is residentially zoned. Except as

5 specifically admitted, the City denies the allegations in paragraph 49 of the

6 Complaint.

7 50. The Ordinance speaks for itself. Except as specifically admitted, the

City denies the allegations in paragraph 50 of the Complaint.

9 51. The Ordinance and the FCC's Shot Clock Ruling speak for themselves.

10 Except as specifically admitted, the City denies the allegations in paragraph 51 of the

z 11 Complaint. o ° c.r) 12 52. The Ordinance speaks for itself. Except as specifically admitted, the LLI ° cd

z 3 jJ City denies the allegations in paragraph 52 of the Complaint. v 14 53 The Ordinance speaks for itself. Except as specifically admitted, the

15 City denies the allegations in paragraph 53 of the Complaint.

16 54. The Ordinance speaks for itself. Except as specifically admitted, the <


18 JJ 55. The Ordinance speaks for itself. Except as specifically admitted, the


20 56. The City admits and alleges that on June 22, 2009, Crown Castle, on

21 behalf of Verizon Wireless submitted an application for a conditional use permit to

„ increase the number of an enclosures li -om lour to six enclosures. I..xcept as

specificall ■ admitted, the Cit■ has insufficient information or belielon the subject to

, permit it to admit or deny the allegations in paragraph 56 of the Complaint and,

, basin its denial on that !around, denies the alleuations in paragraph 56 of the

Complaint.


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tself. Except as specifically admitted, the City denies the allegations in paragraph

57 of the Complaint.

58. The City admits and alleges that the Planning and Zoning Commission

4 held a public hearing on the application on April 27, 2010. The City admits and

5 alleges that the planning staff report, the minutes of the April 27, 2010 Planning and

6 Zoning Commission meeting, and the transcript of the public hearing, each speak for

7 themselves. The City admits and alleges that the hearing on the application was

8 continued to May 25, 2010, and then further continued at the applicant's request to

9 June 22, 2010 and beyond. Except as specifically admitted, the City denies the

10 allegations in paragraph 58 of the Complaint.

59. The City admits and alleges that on or about September 24, 2010, the

City's building inspector issued a stop work order after observing that new antennas

were being installed on the Existing Facility without any City approval or permits.

Except as specifically admitted, the City has insufficient information or belief on the

subject to permit it to admit or deny the allegations in paragraph 59 of the Complaint

and, basing its denial on that ground, denies the allegations in paragraph 59 of the

Complaint.

60. The City admits and alleges that on October 14, 2010, Verizon Wireless

submitted revised plans to the City and that the plans speak for themselves. The City

admits and alleges that on October 26, 2010, the Planning and Zoning Commission

held a public hearing on the revised plans. The City admits and alleges that the

minutes of the Planning and /onin ,, Commission meet n. the transcript of the public

hearing. and the ensuing Notice of Action. each speak iOr themsek s. The Citv has

insufficient information or belief as to \\ by Crown w ithdrew the use permit

application on behalf' of' Verizon Wireless and, basing its denial on that ground,

denies that allegation. 1\cept as spt..cilicallY admitted, the City denies the

.111e , ition, par,i_lraph cm of the Complaint

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City Council requested during the public announcement period of the open session of

the City Council meeting that the Council review the Planning Commission's

decision. Except as specifically admitted, the City denies the allegations in


62. The City admits and alleges that the planning staff report speaks for

itself. The City admits and alleges that the City Council reviewed the Planning

Commission's decision on December 13, 2010 and that the City Council's action is

reflected in the minutes and the Notice of Action, which speak for themselves.

Except as specifically admitted, the City denies the allegations in paragraph 62 of the

Complaint.

63 The City admits and alleges that Verizon Wireless, through its agent

Crown, filed a CUP application (the "Application") on January 20, 2011. The

Application speaks for itself. Except as specifically admitted, the City has

insufficient information or belief on the subject to permit it to admit or deny the



64. The City admits and alleges that the Planning and Zoning Commission

held a public hearing on the Application on July 26, 2011. The staff report for the

hearing speaks for itself. The Commission's decision denying the Application is

reflected in the minutes of the meeting and in the Notice of Action. which speak for

thk_miselves. Except as specificalf) admitted, the City denies the allegations in

paragyaph of the (..'omplaint

(. I he Cit\ admits and alleges that Veriton Wireless. through its agent

Crown. filed an appeal to the Council and that the Council held a public hearing on

the appeal on September 19. 20 I I. the City admits and alleges that representati\ es

of ( ro\\ n and Nieri/on Wireless testified at the hearing and t hat the transcript of said


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1 paragraph 65 of the Complaint and, basing its denial on that ground, denies the


3 66. The City has insufficient information or belief on the subject to permit it

4 to admit or deny the allegations in paragraph 66 of the Complaint and, basini2. its



7 City has insufficient information or belief on the subject to permit it to admit or deny

8 the allegations in paragraph 67 of the Complaint and, basing its denial on that

9 ground, denies the allegations in paragraph 67 of the Complaint.





14 69. The City admits and alleges that the Council directed that the hearing be

15 continued in order to allow an independent review of the application to be conducted

16 by a qualified technical expert hired by the City. The City admits and alleges that it

17 retained Jonathan Kramer, a well-known and qualified telecommunications and radio

18 frequency expert, to perform an independent review of the application. The City

19 admits and alleges that Mr. Kramer requested additional information from the

20 applicant. Except as specifically admitted, the City denies the allegations in

21 paragraph (..)) of the Complaint.

70. The City admits and alleges that it 1 -c-eel d a letter on behalf of Veriion

Wireless dated October 3. 2011, and that the letter speaks for itself. Fxcept as

specifically admitted, the C . ity denies the allegations in paragraph i 70 of the

Complaint.

71. The report b\ \Ir. Kramer dated \7overnb,..‘r 2. 2011. speaks for use! 1.

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72. The report by Mr. Kramer dated November 2, 2011, and his previous

report speak for themselves. Except as specifically admitted, the City denies the


73. The City admits and alleges that on November 7, 2011, the Council

5 nclopted Resolution No. 2011-56 (the "Decision") and that the resolution speaks for

6 itself. Except as specifically admitted, the City denies the allegations in paragraph

7 73 of the Complaint.

8 74. The City denies it has acted unlawfully. Except as specifically

9 admitted, the City has insufficient information or belief on the subject to permit it to


11 on that ground, denies the allegations in paragraph 74 of the Complaint.

▪ 12 75. The City has insufficient information or belief on the subject to permit it ce L.LJ

▪ 13 to admit or deny the allegations in paragraph 75 of the Complaint and, basing its 0 14 denial on that ground, denies the allegations in paragraph 75 of the Complaint.

15 76. The City denies it has conducted itself unlawfully. The (J)

CC 16 Telecommunications Act speaks for itself. Except as specifically admitted, the City

- 17 has insufficient information or belief on the subject to permit it to admit or deny the

;ow 18 allegations in paragraph 76 of the Complaint and, basing its denial on that ground,



admitted. the City has insufficient information or belielon the subject to permit it to

tdmit or deny the allegations in paragraph 77 of the Complaint and. basing its denial

on that Llround. denies the all in paragraph 77 of the Complaint.

78. The City denies the allegations in paragraph 7 of the Complaint.

79. The City admits and alleges that its actions were not preempted by or in

iolation or the Act. lt\c.tept as specifically admitted, the City has insulficient

l 'OrMlion t He! el on the t-nbik.sct to peril) h it to admit or ( 1,..m , th k: l li cIra ti ori ,; in

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admitted, the City has insufficient information or belief on the subject to permit it to

admit or deny the allegations in paragraph 80 of the Complaint and, basing its denial

on that ground, denies the allegations in paragraph 80 of the Complaint.




COUNT ONE

82. The City repeats its answers to paragraphs 1 through 81, inclusive, of

the Complaint and incorporates them herein by this reference as though set forth

again in full.

83. 47 U.S.C. § 253 speaks for itself. Except as specifically admitted, the




85. The City denies the allegations in paragraph 85 of the Complaint.

86. The Ordinance and 47 U.S.C. § 253 speak for themselves. Except as


Complaint.

87. The Ordinance. the Decision, and 47 U.S.C. § 253 speak for themselves

lAcept as specifically admitted. the City denies the allegations in paragraph 87 of the

. Complaint.

88. The Ordinance. Section 2c2 of the Communications Act, and the

Supremacy Clause of: the Lrnited States Constitution speak for themselves. Except as

". o specifically admitted. the Cit\ denies the allegations in paragraph 88 of

Complaint

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1 COUNT TWO

2 89. The City repeats its answers to paragraphs 1 through 88, inclusive, of

3 t le Complaint and incorporates them herein by this reference as though set forth

4 again in full.

5 90. 47 U.S.C. § 332 speaks for itself. Except as specifically admitted, the



City has insufficient information or belief on the subject to permit it to admit or deny







5 93. The Ordinance, 47 U.S.C. § 332, and the Decision speak for themselves.


17 Complaint.

18 94. The Ordinance, the Decision, and 47 U.S.C. § 332 speak for themselves.


20 Complaint.

2.1 95. The Ordinance. the Decision., and 47 U.S.C. § 332 speak Colt themselves.

22hxcept as speciIicall admitted, the City denies the allegations in paragi - aph 95 ()I' the

23 Complaint.

24 96. The Ordinance. the Decision. 47 IT.S.C. and thc Supremacy

25 . liaise speak ror themselves. Except as specifically admitted, the City denies the

26 allegations in paragraph 96 ol the Complaint.


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aLsain in full.

5 98. Federal law speaks for itself. Except as specifically admitted, the City


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99. The Ordinance and the Decision speak for themselves. Except as


9 Complaint.

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100. The Ordinance, the Decision, and the Supremacy Clause of the U.S.

11 Constitution speak for themselves. Except as specifically admitted, the City denies

12 the allegations in paragraph 100 of the Complaint.

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COUNT FOUR

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15 the Complaint and incorporates them herein by this reference as though set forth

16 again in full.

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102. FCC technical and operational standards speak for themselves. The

18 following speak for themselves: In re Future Use of Frequency Band 806-960 MHZ,

19 46 FCC 2d 752 (1974); Use of the Bands 825-845 MHz and 870-890 MHz, 86 FCC

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2d 469 503-505 (1981)• and Use of the Bands 825-845 MHz and 870-890 MHz, 89

21 OFCC 2d 58 09821. Except as specifically admitted. the City denies the allegations in

Hragra h 102 of the Complaint.

103. 1 LC requirements speak 1Or themsek es. I xcept as speci lca1 l\

a dm i tted, the Cit ■ denies the alleuations in paragraph 103 of the Complaint.

104. The FCC's administrati\ e orders and reuulations speak lot - themselves.

( flu ot ell' /0/A v. /.(. V. 486 I . .S "`7. 04 ( () speaks for itself. Except as

sa! ,dmitted. the (.'it\ detiic hc tli in p ttttt 1 H4 01 thc


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105. The Ordinance, the Decision, FCC orders, the Communications Act, and

the Supremacy Clause of the United States Constitution speak for themselves.

Except as specifically admitted, the City denies the allegations in paragraph 10

4 the Complaint.

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COUNT FIVE



again in full.

107. The Application and the TCA speak for themselves. Except as


Complaint.

108. The Decision speaks for itself. Except as specifically admitted, the City


109. The Decision speaks for itself. Prior findings by the City and

admissions by planning staff and Mr. Kramer speak for themselves. Except as


Complaint.

110. The Decision speaks for itself. Hansen Brothers Enterprises, Inc. v.

Board of Supervisors of Nevada County, 12 Ca1.4th 533, 565 (1996) speaks for itse

Except as specifically admitted, the City denies the allegations in paragraph 110 of

the Complaint.

1, Str/rati . i. Falcon Cable Tcicrision. 165 Cal.App.3d 798. 903 (1985)

and 117//ianis Communications. I,LC V. City 1?ivc1.sidc. 114 Cal.App 4th 642. 6

('1)04) speak lot themselves. Except as specifically admitted, the City denies the

alleuations in parath -aph 111 of the Complaint.

1 11 . 1 he Deci s ion and rederal la\\ speak lor thernse It as

PCCj 1,,111:\ 1,1111i Ihe (\ all.CL.1,10H` -IdiThj.1 -dril 112 orthc


113. 47 U.S.C. § 332 speaks for itself. Except as specifically admitted, the


COUNT SIX



again in full.

115. The Decision speaks for itself. Except as specifically admitted, the City




11 116. The Decision speaks for itself. Except as specifically admitted, the City

12 Ii has insufficient information or belief on the subject to permit it to admit or deny the



117. The Decision speaks for itself. Except as specifically admitted, the City Ln cx16 has insufficient information or belief on the subject to permit it to admit or deny the

L.)17 allegations in paragraph 117 of the Complaint and, basing its denial on that ground,

;ow 8 denies the allegations in paragraph 117 of the Complaint.



COUNT SEVEN

1 10 - I 11,2. CitN repeats its answers to paragraphs 1 throuuh 118. inclusive, of

the Complaint and incorporates them hercit 1vY - this reference as though set forth

again in Ill?

'15 120. The City has insufficient information or belief on the suhject to permit - it

to admit or dcn the allegations in paragraph 120 of the Complaint and. basing its

denial on that 2rotind. denies the all. in p,Ititimi-, 11 I :20 thc

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stall an array of six panels on the same pole on the Existing Facility. Except as


Complaint.



6

7 FIRST AFFIRMATIVE DEFENSE

8 [Failure to State A Claim For Relief]

9 123. The Complaint fails to state a claim upon which relief may be granted.

10

11 SECOND AFFIRMATIVE DEFENSE

12 [Failure to Exhaust Administrative Remedies]

3 124. To the extent the Complaint raises issues not presented during the

4 proceedings leading to Resolution No. 2011-56, plaintiff's failure to exhaust its

15 administrative remedies on those issues bars it from raising those issues here.

16

17 THIRD AFFIRMATIVE DEFENSE

18 [Waiver]

19 125. To the extent the Complaint raises issues not presented during the

20 proceedings leading to Resolution No. 2011-56, plaintiff has waived those issues.

21

77

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FOURTH AFFIRMATIVE DEFENSE

I' ..stoppel

126. To the extent the Complaint rakes issues not presented (luring the

25 proceedings leading to Resolution No. 2011- 6, plaintiff is estopped from raisina.

6 those issues here.


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FIFTH AFFIRMATIVE DEFENSE

[Statute of Limitations

127. Plaintiffs facial challenge to the Ordinance is barred by the applicable

4 statute of limitations including, but not limited to, Government Code Section

5 65009(c)(1)(B).

6

7 SIXTH AFFIRMATIVE DEFENSE

8 [Standing]

9 128. Because the Existing Facility is located in a commercial zone, plaintiff

10 has no standing to challenge the Ordinance's prohibition on facilities in residential

11 zones, and therefore has no standing to mount a facial challenge to the Ordinance.

12

13 PRAYER FOR RELIEF

14 Wherefore, the City prays judgment as follows:

15 1. That plaintiff take nothing and that the Complaint be dismissed with

16 prejudice;

17 2. That judgment be entered in favor of the City and against plaintiff;

18 3. That the City be awarded its costs and fees of this lawsuit, including

19 reasonable attorneys' fees to the extent allowed by law;

20 4. That the City be awarded such other and further relief as the Court

21 , deems just.

22


1 Dated: February 3, 2012 Respectfully submitted,

CRAIG LABADIE CITY ATTORNEY CITY OF ALBANY

4 T. IT 1ER PIERCE DAVID G. ALDERSON

5 RICHARDS, WATSON & GERSHON A Profess ionil Corporation

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By: T. PETER PIERCE Attorneys for Defendant, City of Albany

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ANSWER to Complaint for Declaratory Judgment and Injunction by City of Albany.

Documents

Transcript of ANSWER to Complaint for Declaratory Judgment and Injunction by City of Albany.