American Tower Corp. v. City of San Diego

Under the California Code of Streamlining Act, an application will be deemed approved provided an absence of approval or denial from the lead agency after a sixty-day time frame only if landowner rights are not affected, in which case due process requirements must be satisfied; Additionally, to prevail on an unreasonable discrimination claim under the Federal Telecommunications Act, providers of cell coverage services must demonstrate that (1) a significant gap in service coverage is closed by a State or local government; or (2) that the facility in question is the “least intrusive means,” supported by a feasibility of alternative designs analysis.

In 1995, the American Tower Corporation (“ATC”) received a Conditional Use Permit (“CUP”) for three cell tower facility locations from the City of San Diego (“City”), subject to denial or renewal after a ten-year period. In 2007, the City denied CUP applications for all three locations, raising size and visual impact concerns. ATC filed suit, alleging violations of the California Permit Streamlining Act (PSA), unreasonable discrimination under the Federal Telecommunications ACT (TCA), the California Code of Civil Procedure § 1094.5, and the Equal Protection Clause. The district court granted summary judgment on ATC’s PSA claim, holding that the CUP permits were deemed granted when the City failed to issue a denial or approval within the allotted sixty-day time frame, and granted summary judgment to the City on all other claims. On appeal, the Ninth Circuit Court held that ATC’s CUP applications could not be deemed approved after the sixty-day time frame because landowner rights were affected, therefore triggering due process requirements. On the TCA claim, the panel held that the City’s denial of the CUP applications was based on substantial evidence that ATC failed to establish how its facilities were the “least intrusive means” to close a significant gap in coverage and to analyze the feasibility of other designs. Further, the panel held that ATC does not have a vested right to use the facilities pursuant to § 1094.5 because the original CUP provision stated that ATC’s permit would expire after ten years. Lastly, the panel determined that the Equal Protection Clause does not apply because ATC and the City are not similarly situated service providers, and the City had legitimate state interests to deny the CUP applications. AFFIRMED IN PART, REVERSED IN PART.