Posted by: Patricia Salkin | August 26, 2014

Ninth Circuit Court of Appeals Finds City’s Denial of Continual Use Permit Applications for Telecommunications Facilities Did Not Violate TCA

Plaintiff owned and operated three cellular tower facilities in the city: a ninety-foot monopole with nine antennas and a 200 square-foot equipment shelter that was visible from Interstate-5; a 90-foot monopole with 21 antennas and equipment shelters equally 440 square feet that was located in a residential zone with a height limit of 30 feet, and visible from Interstate-805; and a 177-foot lattice tower with a number of antennas and an equipment building on industrial property, and was also visible from Interstate-805.

After the original permits expired, the plaintiff applied for the continual use of the facilities. The city denied those applications because the plaintiff did not offer siting or design solutions to address the city’s aesthetic concerns; the facilities did not comply to the maximum extent feasible with the city’s code; the plaintiff failed to provide how coverage would be affected if the tower heights were reduced; and the plaintiff refused to consider less visually intrusive design alternatives. The city’s planning commission denied plaintiff’s appeals on all three facilities because the information presented on design and siting solutions was insufficient to meet the requirements of the city’s code.

The plaintiff challenged the decision claiming, among other things, that the city’s denial of its applications violated the federal Telecommunications Act and the Equal Protection Clause. The district court granted the city’s motion for summary judgment on these issues and the Ninth Circuit affirmed.

Under the Telecommunications Act, the Ninth Circuit determined that the city’s decision to deny the applications was supported by substantial evidence because the city properly found that the facilities did not comply with the city’s code regarding such facilities to the maximum extent feasible and the plaintiff consistently refused to consider modifications to meet the code. The court also determined that the city’s denial did not constitute unreasonable discrimination among providers of functionally equivalent services because the only other provider of such facilities — the city — is not similarly situated to the plaintiff. The court further determined that the denial was not an effective prohibition of providing wireless services because its facilities were not the least intrusive means necessary to closing a significant gap in service coverage. Finally, the court determined that the city’s denial of the plaintiff’s permit applications did not violate the Equal Protection Clause because the denial was rationally related to the city’s legitimate interests in minimizing the aesthetic impact of wireless facilities and in providing public communications services.

American Tower Corporation v. City of San Diego, No. 11-56766 (9th Cir. 8/14/2014)

The opinion can be accessed at:
Editor’s note: This blog post is slightly modified from the Illinois Municipal League’s Weekly Bulleting of September 10, 2014:

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