Plaintiff American Tower Corporation (hereinafter “ATC”), owners of a telecommunications tower on Versus Street in San Diego (hereinafter “Versus”), sought renewal of a conditional use permit (CUP) that would allow ATC to maintain the Versus site in its existing conditions despite the structure’s violations of local regulations. Defendants, including the City of San Diego, the City Council of San Diego, and the Development Services Department of City of San Diego (hereinafter “the City”) denied the CUP application because the tower failed to comply with the regulations.
ATC brought three claims under the Telecommunications Act (TCA), alleging unreasonable discrimination, effective prohibition, and lack of substantial evidence. 47 U.S.C. § 332(c)(7)(A)–(B). Although the TCA grants authority to local governments regarding wireless service facilities, it limits the authority by prohibiting discrimination among service providers contributing “functionally equivalent services.” It also prevents local governments from effectively prohibiting “the provision of personal wireless services” as well as from denying requests for wireless service facilities absent substantial evidence. In addition to the TCA claims, ATC also made a dormant Commerce Clause claim, a Fifth Amendment takings claim, a fundamental vested rights claim under California’s civil procedure law, and a violation claim under the Permit Streamlining Act. Both parties moved for summary judgment on each of the claims, which the Court addressed in turn.
The Court addressed the substantial evidence claim first, finding that San Diego Municipal Code Section 141.0405 required the City to consider whether the facility used the least visually intrusive antennas and other components that meet the facility’s requirements. The City found that this particular tower was the tallest in the area and posed an unsightly visual impact for travelers due to its location along a major transportation corridor. ATC’s refusal to modify the proposal to minimize visibility as well as its continued refusal to reduce the height of the tower supported the City’s denial, especially since regulations required designs to be minimally invasive. The Court emphasized that the “substantial evidence” standard did not require a preponderance of the evidence analysis. In fact, a court may not overturn such a denial if “more than a scintilla of evidence” supports the decision. Next, the Court quickly disposed of ATC’s unreasonable discrimination claim. ATC claimed that the City, as a wireless services provider, treated itself differently by not imposing the regulations on its own towers. However, to show unreasonable discrimination, ATC had to show that the City and ATC were “functionally equivalent providers” in addition to the City’s “unreasonable discrimination” against ATC. The Court found that ATC and the City were not functionally equivalent providers, as the City’s towers were primarily used for City purposes, such as emergency services and ATC’s tower was used solely for commercial gain. As to ATC’s effective prohibition claim, even assuming ATC had the requisite “significant gap” in wireless service, the claim still failed. The record delineated ATC’s refusals to make concessions regarding the tower’s height or design. This clearly showed that ATC’s proposal was not the “least intrusive means of filling a significant gap in coverage” as required by law. As a result, the Court granted summary judgment in favor of the City on the Telecommunications Act claim.
The Court briefly discussed ATC’s dormant commerce clause claim, granting summary judgment in favor of the City, as ATC cited no cases where the dormant commerce clause had been extended to a similar situation. Moreover, the Court emphasized that comparison for Commerce Clause purposes was unwise because ATC and the City are not similar, as was discussed with regard to ATC’s unreasonable discrimination claim. ATC’s claim under the Fifth Amendment alleged that imposition of the City’s regulations constituted an impermissible regulatory taking. The City responded by arguing that the claim must fail as ATC had not sought and been denied compensation. ATC then argued that following state compensation procedures was unnecessary, because the City’s regulations constituted a private taking. However, they failed to provide any evidence supporting the proposition that the City took its property for private use, nor did they cite any authority for the idea that this conduct would constitute a private taking when the regulatory effect was not for private use.
Next, ATC claimed that it had a fundamental vested right to the continued use of its Versus tower without alteration, regardless of the explicit expiration date laid out in the pervious CUP, under the California Code of Civil Procedure Section 1094.5. However, the Court noted that this is determined on a case-by-case analysis and that historically, it rarely upheld the application of this provision to land use cases. They found that ATC did not have a fundamental vested right because the previous CUP expressly denoted an expiration date and the denial of the permit primarily implicated an interest that was solely economic. This made ATC’s loss “purely economic” if it were made to reduce or redesign the tower. The Court accordingly granted summary judgment in favor of the City on this claim.
Finally, both parties moved for summary judgment on ATC’s claim under the Permit Streamlining Act (hereinafter “PSA”) (California Government Code § 65950 (a)(4)). ATC argued that the City violated the time limits set out by the statute, therefore making the application “approved” as a matter of law. The Court was asked to determine whether ATC’s claim was precluded because: (1) ATC failed to plead this basis for its PSA claim; (2) the City’s public notice was insufficient; (3) ATC failed to exhaust its administrative remedies; or (4) the parties agreed to extend the time for approval/denial of the application. As to the first issue, the Court found that the claim was not precluded because allowing an amendment to the pleading to allow the PSA claim would not unduly prejudice the City. As to the second issue, the Court found that the statutory provisions regarding notice did not apply when the public entity gave public notice and held public hearings, as the City did here, so the claim was not precluded on those grounds. As to the third issue, the Court found that the PSA contained no administrative remedies. They could not simply dismiss a claim for failure to exhaust those remedies when there were none to exhaust, so the claim was not precluded on these grounds. Lastly, the claim was not precluded because ATC agreed to extend the time to approve or deny the application. The agreement to which the City referred did not meet statutory requirements for an extension. Therefore, the Versus application was not approved within the time limits under the PSA and therefore must be deemed approved. ATC was granted summary judgment on the PSA claim.
Before concluding its discussion of ATC’s numerous claims, the Court quickly disposed of ATC’s unfair competition law claim, which can only be brought against a “person” within the meaning of the statute. The statute excluded “public entities” from its definition of a person and therefore the Court granted summary judgment in favor of the City on this claim.
In re Cell Tower Litigation, 2011 WL 3474702 (S.D.Cal., 8/5/11).
