Am. Tower Corp. v. City of San Diego

Decision Date14 August 2014
Docket Number11–56862.,11–56861,11–56767,Nos. 11–56766,s. 11–56766
Citation763 F.3d 1035
PartiesAMERICAN TOWER CORPORATION, a Delaware corporation, Plaintiff–Appellee, v. CITY OF SAN DIEGO; City Council of the City of San Diego; Development Services Department of the City of San Diego, Defendants–Appellants. American Tower Corporation, a Delaware corporation, Plaintiff–Appellee, v. City of San Diego, Defendant–Appellant, and City Council of the City of San Diego; Development Services Department of the City of San Diego, Defendants. American Tower Corporation, a Delaware corporation, Plaintiff–Appellant, v. City of San Diego; City Council of the City of San Diego; Development Services Department of the City of San Diego, Defendants–Appellees. American Tower Corporation, a Delaware corporation; T–Mobile West Corporation, a Delaware corporation, Plaintiffs–Appellants, v. City of San Diego, Defendant–Appellee, and City Council of the City of San Diego; Development Services Department of the City of San Diego, Defendants.
CourtU.S. Court of Appeals — Ninth Circuit

OPINION TEXT STARTS HERE

Christine M. Leone (argued), Chief Deputy City Attorney, Jan I. Goldsmith, City Attorney, Donald R. Worley, Assistant City Attorney, Alexis L. Jodlowski, Deputy City Attorney, Office of the City Attorney, San Diego, CA, for DefendantsAppellants/Cross–Appellees.

Robert Jystad (argued), Julian Quattlebaum III (argued), Jamie T. Hall, and Charles J. McLurkin, Channel Law Group, LLP, Long Beach, CA, for PlaintiffAppellee/Cross–Appellant.

Kara L. Azocar, Alexandria, VA, for Amicus Curiae PCIA—The Wireless Infrastructure Association.

Amrit S. Kulkarni, Julia L. Bond, and Frank R. Petrilli, Meyers, Nave, Riback, Silver & Wilson, Oakland, CA, for Amici Curiae League of California Cities and California State Association of Counties.

Appeal from the United States District Court for the Southern District of California, Roger T. Benitez, District Judge, Presiding.

D.C. No. 3:07–cv–00399–BEN–WVG.

Before: FERDINAND F. FERNANDEZ, JOHNNIE B. RAWLINSON, and JAY S. BYBEE, Circuit Judges.

OPINION

BYBEE, Circuit Judge:

American Tower Corporation (ATC) is a leading owner and operator of telecommunication facilities, some of which are located in the City of San Diego. In 2007, the City denied ATC's Conditional Use Permit (CUP) applications for three of its San Diego facilities. Disappointed with the City's decision, ATC filed suit in federal district court, raising claims under, among other provisions, the California Permit Streamlining Act (PSA), the Federal Telecommunications Act (TCA), California Code of Civil Procedure § 1094.5, and the Equal Protection Clause of the United States Constitution. The district court granted summary judgment in favor of ATC on the PSA claim and in favor of the City on the other claims. ATC and the City now appeal.

We reverse the district court's grant of summary judgment in favor of ATC on the PSA claim because we conclude that the CUP applications were not deemed approved before the City denied them. Finding no violation of the TCA, California Code of Civil Procedure § 1094.5, or the Equal Protection Clause, we affirm the district court's grant of summary judgment in favor of the City on the remaining claims.

I. FACTS AND PROCEDURAL HISTORY

ATC owns and operates cell tower facilities around the world. Three such towers—the Verus, Border, and Mission Valley Facilities—are located in San Diego. The City granted a CUP for the Verus Facility on July 27, 1995, the Border Facility on October 3, 1995, and the Mission Valley Facility on September 12, 1996. Each CUP stated that it would expire ten years from its date of approval, absent renewal, and that the permittee was required to return the site to its original condition at the time of expiration or denial of renewal.

The Verus Facility consists of a ninety-foot monopole with nine antennas and a 200 square-foot equipment shelter, on industrial property in Otay Mesa. The site is prominently visible from Interstate–5, which serves as a major north-south transportation corridor in the City.

The Border Facility consists of a ninety-foot monopole with twenty-one antennas and approximately 440 square feet of equipment shelters, on low-medium density residential-zoned property in San Ysidro. The height limit for this zone is thirty feet, and the site is visible from Interstate–805, going north and south, and the surrounding residential area.

The Mission Valley Facility consists of an approximately 177–foot lattice tower with a number of antennas and an equipment building, on industrial property in Mission Valley. The site is located on the top of a prominent slope and is visible in the Mission Valley neighborhood from Interstate–805.

After the original CUPs expired by their terms, ATC filed a new CUP application for the Verus and Border Facilities on December 1, 2005, and the Mission Valley Facility on February 15, 2007. In response, the City published a Notice of Application for the Verus and Border Facilities on December 16, 2005, and the Mission Valley Facility on March 14, 2007. The City then issued an Assessment Letterregarding each facility, identifying concerns for ATC to address before the City's planning staff could recommend approval of the CUP applications. Most of the City's concerns related to the size and visual impact of the facilities. The City then deemed the CUP applications for the Verus, Border, and Mission Valley Facilities to be exempt from the California Environmental Quality Act (CEQA) on January 13, 2006, February 13, 2007, and July 2, 2007, respectively.

Under the PSA, the City was required to approve or disapprove the CUP applications within sixty days from the date of its determination that the facilities were exempt from the CEQA. Cal. Gov't Code § 65950(a)(4). The City failed to act on any of the CUP applications within this sixty-day window. Instead, over an extended period, the City and ATC continued to have discussions regarding the CUP applications and what would be required for ATC to obtain the CUPs.

The City published a Notice of Public Hearing for the Verus Facility on March 20, 2007. At the hearing on April 4, 2007, the City denied the Verus Facility CUP application because the project did not comply to the maximum extent feasible with the City's Land Development Code. See San Diego Mun.Code § 141.0405 (2001). ATC did not offer siting or design solutions to address the planning staff's concerns, other than agreeing to add additional landscaping and screening for the facility's equipment shelter.

The City published a Notice of Public Hearing for the Border Facility on July 18, 2007. At the hearing on August 8, 2007, the planning staff recommended denial of the CUP application because the project did not comply to the maximum extent feasible with the City's Land Development Code. See id. The Hearing Officer continued the hearing and requested that ATC provide a site-specific analysis of how wireless coverage would be affected if the height of the tower were reduced. At a second hearing on September 12, 2007, the City denied the CUP application because ATC had not provided sufficient information to allow the Hearing Officer to make the findings required by the City's Land Development Code.

The City also published a Notice of Public Hearing for the Mission Valley Facility on July 18, 2007. At the hearing on August 8, 2007, ATC offered to minimize the visual impact of the facility by painting the tower, adding additional landscaping, and removing unused mounting arms. The City planning staff recommended denial of the CUP application because ATC refused to consider other, less visually intrusive design alternatives, such as using architectural features to integrate the facility with its surroundings. The Hearing Officer continued the hearing to allow both sides the opportunity to supplement the record. The City denied the CUP application on September 12, 2007, because the project did not comply to the maximum extent feasible with the City's Land Development Code.

ATC appealed all three CUP denials to the City's Planning Commission. The Planning Commission denied the appeals, finding that the information presented on design and siting solutions was insufficient to meet the requirements of the City's Land Development Code.

In response to the City's denial of the CUP applications, ATC filed suit in federal district court, raising claims under the PSA, the TCA, California Code of Civil Procedure § 1094.5, and the Equal Protection Clause, among other provisions. Both sides moved for summary judgment. The district court granted summary judgment in favor of ATC on its PSA claim, reasoning that the CUP applications were deemed approved when the City failed to make its decisions within the sixty-day window established by § 65950(a)(4). The district court granted summary judgment in favor of the City on the other claims. Both sides timely appealed the district court's adverse rulings.

II. STANDARD OF REVIEW

We review de novo the district court's grant of summary judgment. Oswalt v. Resolute Indus., Inc., 642 F.3d 856, 859 (9th Cir.2011). We determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.” Wallis v. Princess Cruises, Inc., 306 F.3d 827, 832 (9th Cir.2002). We do not “weigh the evidence or determine the truth of the matter, but only determine[ ] whether there is a genuine issue for trial.” Balint v. Carson City, 180 F.3d 1047, 1054 (9th Cir.1999) (en banc). When parties file cross-motions for summary judgment, we consider each motion on its merits. Fair Hous. Council of Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir.2001). We may affirm a grant of summary judgment on any basis the record supports, including one the district court did not reach.” Venetian Casino...

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