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In American Tower Corporation v. City of San Diego, 2014 U.S. App. LEXIS 15641, the Ninth Circuit Court of Appeals upheld the City of San Diego’s (City) denial of three conditional use permits (CUP) for three cell tower facilities owned and operated by American Tower Corporation. The court reversed in part and affirmed in part the district court’s rulings.

After expiration of ten-year leases for three American Tower cell tower facilities, the City issued a letter with several conditions for renewal related to the size and visual impacts of the facilities. Each lease renewal required a CUP, which the City determined was exempt from the requirement of the California Environmental Quality Act (CEQA).  Following an extended period of negotiations, the City ultimately denied the lease renewals after holding a public hearing on each permit.

The court first reversed the district court’s decision that the City violated the time limits of the California Permit Streamlining Act (PSA). Under the PSA, a permit is deemed approved sixty days after the lead agency determines the permits are exempt from CEQA, but only if the lead agency provides “the public notice required by law.” American Tower claimed that because the City delayed more than sixty days in acting on the permit applications following its exemption determination, the CUP applications should be deemed approved as a matter of law.

The court looked to the meaning of the phrase “public notice required by law” and first found that the City had complied with the noticing requirements under its municipal code for issuance of a CUP.  The court also applied constitutional principles requiring affected property owners receive notice and an opportunity to be heard when adjudicatory land use decisions constitute a substantial deprivation of property rights.  Under these principles, the CUP applications could not be deemed approved because the due process component of “the public notice required by law” protects affected landowner’s right to meaningful participation at a public hearing, meaning that such notice cannot be complete before the hearing itself.  As a result, only public notice that specified the leases would be automatically approved if no action was taken would satisfy the constitutional requirements of “public notice required by law.” Because this was not stated in the hearing notice, the court found the district court erred in determining that the CUPs had been approved as a matter of law.

Next, the court considered arguments raised under the Federal Telecommunications Act. American Tower first claimed that the City’s decision to deny the CUP applications was not supported by substantial evidence because the City misapplied its own municipal code.  American Tower next claimed that denial of the applications constituted unreasonable discrimination among providers of functionally equivalent services. Finally, American Tower claimed that denial of the applications constituted an effective prohibition on wireless services.  The court found no merit to the claims and affirmed the district court’s grant of summary judgment in favor of the City.

Finally, the court rejected American Tower’s claims pursuant to California Code of Civil Procedure section 1094.5 and the Equal Protection Clause. American Tower did not have a fundamental vested right to continued operation of the cell tower facilities and the City’s decision to deny the permits was only subject to rational basis review. 


Applicants for conditional use permits seeking to trigger the automatic approval clause in section 65956 subdivision (b) of the Permit Streamlining Act have the burden of showing both a statutory and constitutional component of “public notice required by law.” Applicants must show (1) local requirements for notice were followed; and (2) if the approval would constitute a substantial deprivation of property rights of others, the applicant must show the other landowners were given reasonable notice and an opportunity to be heard.

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