Telecom Loses Squabble Over San Diego Towers

PASADENA, Calif. (CN) - San Diego was within its rights to deny permits to cell tower kingpin American Tower Corp., the 9th Circuit held in a partial reversal Thursday.

ATC had sued San Diego after city planners declined to renew conditional-use permits for three huge cellular towers there. The company claimed San Diego violated California's Permit Streamlining Act and the federal Telecommunications Act, as well as other state laws and the Equal Protection Clause.

U.S. District Judge Roger Benitez found before trial that the city violated the state's permit law when it didn't act on the conditional-use permit applications within 60 days, but otherwise did no wrong.

Both sides appealed to the 9th Circuit, and a three-judge panel with the federal appeals court found Thursday that San Diego acted appropriately by denying the permits to ATC.

The trial court erred in finding that the city's failure to act on ATC's applications within 60 days meant that the permits were automatically approved, according to the ruling.

"The Permit Streamlining Act states that a conditional use permit application may be deemed approved 'only if the public notice required by law has occurred,'" Judge Jay Bybee wrote for the court. "We conclude that 'the public notice required by law' requires reasonable notice of a public hearing. Because such notice did not 'occur' before the city denied ATC's applications, the applications were not deemed approved, and ATC's PSA claim must fail."

ATC had the power under the PSA to force the city to give public notice and holding a hearing, but failed to do so, according to the ruling. Simply approving ATC's permits without giving the public a chance to weigh in would have unfairly impacted the interests of property owners around the tower.

"ATC contends that the facilities can have no cognizable impact on other landowners because all of the adjacent properties are either freeways, vacant land, or industrial facilities," Bybee wrote. "ATC's contention is inconsistent with the record, which reveals that the Border facility is located on low-medium density residential-zoned property and that the Mission Valley facility is adjacent to multi-family residential property. Furthermore, even if all of the adjacent properties were as ATC contends, ATC's facilities would still have a significant impact on them. Dozens of antennas perched on hundreds of feet of towers alongside hundreds of square feet of equipment shelters may not seem like a cognizable impact to ATC, but we believe most landowners would beg to differ. ATC's point is better directed to whether other landowners will likely object to the renewal of ATC's applications, not to whether ATC has a legal obligation to give them notice of the proposed action."

The panel agreed with the trial court that San Diego's own rules for land development do not run afoul of the federal Telecommunications Act, which requires only "substantial evidence" to support denying a permit.

In this case, city rules require that major telecommunications facilities like ATC's towers must be made minimally invasive through the use of architecture, landscaping or siting solutions. The city found these options impossible for three gigantic cell towers.

"The city supported its decision to deny the applications with substantial evidence," Bybee wrote. "From the time ATC filed its applications to the time the city denied them, the city continually expressed its concerns regarding the visual impact of the facilities. These concerns arose out of the city's duty to find that the facilities complied to the maximum extent feasible with the regulations of the land development code, including the requirement that major telecommunications facilities be minimally invasive. In response, ATC consistently refused to consider modifications that involved reduction in height or redesign of the towers. Based on this record, we find that the city's decision was authorized by the relevant regulations and was supported by a 'reasonable amount' of evidence in the record, i.e., more than a scintilla but not necessarily a preponderance. Accordingly, the city's decision was supported by 'substantial evidence" under the Telecommunications Act, and the district court properly granted summary judgment in favor of the city on this claim."

San Diego's "legitimate interest in minimizing the aesthetic impact of wireless facilities" justified denying ATC's permit and therefore did not violate the company's equal protection rights, Bybee concluded.

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