FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AMERICAN 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.

No. 11-56766

D.C. No.

3:07-cv-00399-

BEN-WVG

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.

No. 11-56767

D.C. No.

3:07-cv-00399-

BEN-WVG
2 AMERICAN TOWER CORP. V. CITY OF SAN DIEGO

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.

No. 11-56861

D.C. No.

3:07-cv-00399-

BEN-WVG

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.

No. 11-56862

D.C. No.

3:07-cv-00399-

BEN-WVG

OPINION
AMERICAN TOWER CORP. V. CITY OF SAN DIEGO 3

Appeal from the United States District Court

for the Southern District of California

Roger T. Benitez, District Judge, Presiding

Argued and Submitted

April 10, 2013—Pasadena, California

Filed August 14, 2014

Before: Ferdinand F. Fernandez, Johnnie B. Rawlinson,

and Jay S. Bybee, Circuit Judges.

Opinion by Judge Bybee

SUMMARY*

Telecommunictions Act

The panel affirmed in part and reversed in part the district

court’s summary judgment on claims that the City of San

Diego’s denial of continual use permit applications for

telecommunications facilities violated the California Permit

Streamlining Act, the federal Telecommunications Act,

California Code of Civil Procedure § 1094.5, and the Equal

Protection Clause.

Reversing the district court’s summary judgment in favor

of the plaintiff on its claim that the City violated the time

limits of the Permit Streamlining Act, the panel concluded

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
4 AMERICAN TOWER CORP. V. CITY OF SAN DIEGO

that the permit applications were not deemed approved before

the City denied them because “the public notice required by

law” did not “occur.”

The panel affirmed the district court’s summary judgment

in favor of the City on the other claims. The panel held that

under the Telecommunications Act, the City’s decision to

deny the permit applications was supported by substantial

evidence, and the City did not misapply its Land

Development Code. The permit denial did not constitute

unreasonable discrimination among functionally equivalent

service providers because the plaintiff and the City were not

functionally equivalent providers. The permit denial did not

constitute an effective prohibition of personal wireless

services because the plaintiff did not demonstrate that its

proposals were the least intrusive means of filling a

significant gap in coverage.

The panel held that the plaintiff could not prevail under

Cal. Civ. Proc. Code § 1094.5 because it did not have a

fundamental vested right to the continued use of its facilities.

The panel held that the permit denial did not violate equal

protection because it was rationally related to the City’s

legitimate interest in minimizing the aesthetic impact of

wireless facilities and in providing public communications

services.
AMERICAN TOWER CORP. V. CITY OF SAN DIEGO 5

COUNSEL

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, California, for

Defendants-Appellants/Cross-Appellees.

Robert Jystad (argued), Julian Quattlebaum III (argued),

Jamie T. Hall, and Charles J. McLurkin, Channel Law Group,

LLP, Long Beach, California, for Plaintiff-Appellee/CrossAppellant.

Kara L. Azocar, Alexandria, Virginia, for Amicus Curiae

PCIA—The Wireless Infrastructure Association.

Amrit S. Kulkarni, Julia L. Bond, and Frank R. Petrilli,

Meyers, Nave, Riback, Silver &Wilson, Oakland, California,

for Amici Curiae League of California Cities and California

State Association of Counties.

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
6 AMERICAN TOWER CORP. V. CITY OF SAN DIEGO

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

ValleyFacilities—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.
AMERICAN TOWER CORP. V. CITY OF SAN DIEGO 7

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 residentialzoned 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 propertyin Mission Valley.

The site is located on the top of a prominent slope and is

visible in the Mission Valley neighborhood from Interstate805.

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 Letter

regarding 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
8 AMERICAN TOWER CORP. V. CITY OF SAN DIEGO

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
AMERICAN TOWER CORP. V. CITY OF SAN DIEGO 9

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
10 AMERICAN TOWER CORP. V. CITY OF SAN DIEGO

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 Resort, L.L.C. v. Local Joint Exec. Bd. of Las Vegas,

257 F.3d 937, 941 (9th Cir. 2001).

III. DISCUSSION

There are four claims before us on appeal. First, we

consider whether ATC’s CUP applications were deemed

approved as a matter of law pursuant to the PSA. Second, we

address ATC’s claims under the TCA: (1) whether the City’s

decision to deny the CUP applications was supported by

substantial evidence, (2) whether the City’s decision to deny

the CUP applications constituted unreasonable discrimination

among functionally equivalent service providers, and

(3) whether the City’s decision to deny the CUP applications

constituted an effective prohibition of personal wireless

services. Third, we examine whether ATC has a fundamental

vested right to the continued use of its facilities under

California Code of Civil Procedure § 1094.5. Fourth, we take

up ATC’s Equal Protection Clause claim.
AMERICAN TOWER CORP. V. CITY OF SAN DIEGO 11

A. The California Permit Streamlining Act Claim

ATC claims that the City violated the time limits of the

PSA and that, as a result, ATC’s CUP applications must be

deemed approved as a matter of law. The City counters that

ATC’sCUP applications cannot be deemed approved because

the City did not provide public notice of the PSA’s deemed

approval provision, as required by the statute. Resolution of

this claim requires us to determine when a CUP application

may be deemed approved under California’s labyrinthine

PSA.

The PSA states that a CUP application may be deemed

approved “only if the public notice required by law has

occurred.” Cal. Gov’t Code § 65956(b). 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 CUP applications, the CUP

applications were not deemed approved, and ATC’s PSA

claim must fail.

1. The Statutory Framework

The PSA was enacted in an effort to “ensure clear

understanding of the specific requirements which must be met

in connection with the approval of development projects and

to expedite decisions on such projects.” Cal. Gov’t Code

§ 65921. Because the Verus, Border, and Mission Valley

Facilities qualify as development projects, the City’s

decisions on ATC’s CUP applications are subject to the PSA.

Id. §§ 65921, 65928, 65927.

Section 65950 of the PSA states in relevant part: “Any

public agency that is the lead agency for a development
12 AMERICAN TOWER CORP. V. CITY OF SAN DIEGO

project shall approve or disapprove the project within . . .

[s]ixty days from the determination by the lead agency that

the project is exempt from the [CEQA].”1Id. § 65950(a)(4).

This is a mandatory time limit. See Palmer v. City of Ojai,

223 Cal. Rptr. 542, 550 (Cal. Ct. App. 1986) (“We conclude

that the Scheme created a mandatory, rather than a directory

duty.”). Despite the sixty-day time limit’s mandatory nature,

however, § 65950 provides for an extension “pursuant to

§ 65957.” Id. § 65950(b). Section 65957, in turn, permits a

single extension of § 65950’s time limit, upon written

agreement of the parties, for a period not to exceed ninety

days from the date of the extension.2“No other extension,

continuance, or waiver of [§ 65950’s] time limit[]” is

permitted, except in limited circumstances not relevant here.

Id. § 65957; see also id. § 65950.1 (providing an exception to

§ 65957’s strict one-time extension of time limit rule “to

1 The City is the “lead agency” in this case. Cal. Gov’t Code § 65929

(“‘Lead agency’ means the public agency which has the principal

responsibility for carrying out or approving a project.”).

 

2

 Section 65957 provides:

The time limits established bySections 65950, 65950.1,

65951, and 65952 may be extended once upon mutual

written agreement of the project applicant and the

public agency for a period not to exceed 90 days from

the date of the extension. No other extension,

continuance, or waiver of these time limits either by the

project applicant or the lead agency shall be permitted,

except as provided in this section and Section 65950.1.

Failure of the lead agency to act within these time

limits may result in the project being deemed approved

pursuant to the provisions of subdivision (b) of Section

65956.

Cal. Gov’t Code § 65957.
AMERICAN TOWER CORP. V. CITY OF SAN DIEGO 13

complete and certify the environmental impact report”). 

Section 65957 also cautions that the “[f]ailure of the lead

agency to act within these time limits may result in the

project being deemed approved pursuant to the provisions of

subdivision (b) of Section 65956.”

Section 65956 provides enforcement for § 65950’s time

limit.3 As a general rule, § 65956 states that if the lead 

 

3

 Section 65956 provides:

(a) If any provision of law requires the lead agency or

responsible agency to provide public notice of the

development project or to hold a public hearing, or

both, on the development project and the agency has

not provided the public notice or held the hearing, or

both, at least 60 days prior to the expiration of the time

limits established by Sections 65950 and 65952, the

applicant or his or her representative may file an action

pursuant to Section 1085 of the Code of Civil

Procedure to compel the agency to provide the public

notice or hold the hearing, or both, and the court shall

give the proceedings preference over all other civil

actions or proceedings, except older matters ofthe same

character.

(b) In the event that a lead agency or a responsible

agency fails to act to approve or to disapprove a

development project within the time limits required by

this article, the failure to act shall be deemed approval

of the permit application for the development project.

However, the permit shall be deemed approved only if

the public notice required by law has occurred. If the

applicant has provided seven days advance notice to the

permitting agency ofthe intent to provide public notice,

then no earlier than 60 days from the expiration of the

time limits established by Sections 65950 and 65952,

an applicant may provide the required public notice
14 AMERICAN TOWER CORP. V. CITY OF SAN DIEGO

agency fails to act to approve or disapprove a development

project within § 65950’s time limit, “the failure to act shall be

deemed approval of the permit application for the

development project.” Id. § 65956(b). But there’s a catch:

“[T]he permit shall be deemed approved only if the public

notice required by law has occurred.” Id. (emphasis added).

Thus, the lead agency’s inaction will be deemed approval of

using the distribution information provided pursuant to

Section 65941.5. If the applicant chooses to provide

public notice, that notice shall include a description of

the proposed development substantially similar to the

descriptions which are commonly used in public notices

by the permitting agency, the location of the proposed

development, the permit application number, the name

and address of the permitting agency, and a statement

that the project shall be deemed approved if the

permitting agency has not acted within 60 days. If the

applicant has provided the public notice required by this

section, the time limit for action by the permitting

agency shall be extended to 60 days after the public

notice is provided. If the applicant provides notice

pursuant to this section, the permitting agency shall

refund to the applicant any fees which were collected

for providing notice and which were not used for that

purpose.

(c) Failure of an applicant to submit complete or

adequate information pursuant to Sections 65943 to

65944, inclusive, may constitute grounds for

disapproving a development project.

(d) Nothing in this section shall diminish the permitting

agency's legal responsibility to provide, where

applicable, public notice and hearing before acting on

a permit application.

Cal. Gov’t Code § 65956.
AMERICAN TOWER CORP. V. CITY OF SAN DIEGO 15

a development project only if two conditions coincide: (1) the

agency fails to take action—i.e., approve or disapprove the

project—within § 65950’s time limit, and (2) the “public

notice required by law has occurred.”

Section 65956 also provides an applicant with two forms

of self help. First, the applicant may file an action to compel

the lead agency to comply with its legal duty to provide

public notice of a development project or hold a public

hearing. Id. § 65956(a). Second, sixty days after the

expiration of § 65950’s time limit for approving or

disapproving the project, if the applicant provides seven days

advance notice to the lead agency of the applicant’s intent to

provide public notice, the “applicant may provide the

required public notice.” Id. § 65956(b). If the applicant

provides public notice, the applicant’s public notice must

include (1) “a description of the proposed development

substantially similar to the descriptions which are commonly

used in public notices by the permitting agency,” (2) “the

location of the proposed development,” (3) “the permit

application number,” (4) “the name and address of the

permitting agency,” and (5) “a statement that the project shall

be deemed approved if the permitting agency has not acted

within 60 days.” Id. Furthermore, if the applicant provides

public notice, “the time limit for action by the permitting

agency shall be extended to [an additional] 60 days after the

public notice is provided.” Id. Section 65956(b), however,

does not alter the lead agency’s legal responsibility to

provide, where required, public notice and a hearing. Id.

§ 65956(d).

In other words, if the lead agency provides “the public

notice required by law,” the permit application is deemed

approved sixty days after the development project is deemed
16 AMERICAN TOWER CORP. V. CITY OF SAN DIEGO

to be exempt from the CEQA, unless the parties agree in

writing to a one-time extension for up to ninety days. Id.

§§ 65950(a)(4), 65956(b), 65957. In contrast, if the applicant

provides public notice, the permit application is deemed

approved, at the earliest, 180 days after the development

project is deemed to be exempt from the CEQA.4Id.

§ 65956(b).

2. “The Public Notice Required by Law”

The parties do not dispute (1) that the City published a

Notice of Application for each facility; (2) that the facilities

were later deemed exempt from the CEQA; (3) that the City

failed to hold a hearing or act on the CUP applications within

sixty days from the date that the facilities were deemed

exempt from the CEQA, as required by § 65950(a)(4);

(4) that the City subsequently published a Notice of Public

Hearing and held a hearing for each facility; and (5) that ATC

did not publish its own public notice pursuant to the self-help

provision of § 65956(b). Thus, the merits of ATC’s PSA

claim turn on the definition of the phrase “public notice

required by law” in § 65956(b). If the public notice required

 

4

 To illustrate this complex provision, we offer the following example.

The Verus Facility was deemed to be exempt from the CEQA on January

13, 2006. Therefore, under § 65950(a)(4), the City had sixty days (absent

a one-time extension for up to ninety days pursuant to § 65957)—until

March 14, 2006—to give any appropriate notices, conduct any hearings,

and approve or disapprove the CUP application. If, however, the City

failed to provide “the public notice required by law,” and ATC had wanted

to exercise its self-help rights, ATC could have given public notice after

an additional sixty days—on May 13, 2006—provided that ATC gave the

City seven days’ notice of its intent to do so. Cal. Gov’t Code § 65956(b).

The City then would have had an additional sixty days—until July 12,

2006—to act on the CUP application before it would have been deemed

approved. Id. July 12, 2006, is 180 days after January 13, 2006.
AMERICAN TOWER CORP. V. CITY OF SAN DIEGO 17

by law “occurred” before the City denied ATC’s CUP

applications, the CUP applications must be deemed approved

as a matter of law. Id. § 65956(b). If, however, the public

notice required by law did not “occur” before the City denied

ATC’s CUP applications, the CUP applications cannot be

deemed approved, and ATC’s PSA claim must be denied. Id.

ATC contends that the California Supreme Court’s

decision in Bickel v. City of Piedmont, 946 P.2d 427 (Cal.

1997), superseded by statute as recognized in Riverwatch v.

Cnty. of San Diego, 91 Cal. Rptr. 2d 322, 328–29 (Cal. Ct.

App. 1999), controls the definition of “public notice required

by law.” In Bickel, the California Supreme Court held that an

applicant could waive its right to deemed approval by

cooperating with a lead agency’s lengthy processing of its

application.5Id. at 433–34. Although the court did not

directly address the definition of “public notice required by

law” under § 65956, it did include the following footnote:

Under section 65956, an applicant can compel

an agency to give public notice of a

development project or to hold a public

hearing, or both, and the statute provides a

means for the applicant to give public notice.

Because in this case the city gave public

notice and held public hearings, these

statutory provisions are not in issue here.

Id. at 430 n.2 (emphasis added) (citation omitted). Based on

this footnote, ATC argues that the California Supreme Court

has held that § 65956(b)’s notice requirement is satisfied

 

5

 In response, the legislature amended § 65957 to preclude this kind of

waiver. Riverwatch, 91 Cal. Rptr. 2d at 328–29.
18 AMERICAN TOWER CORP. V. CITY OF SAN DIEGO

wherever the lead agency gives any form of public notice for

a public hearing. Because the City gave public notice and

failed to act within sixty days after ATC’s facilities were

deemed exempt from the CEQA, ATC contends that its

permit applications must be deemed approved.

If ATC were correct, we would be bound to follow Bickel

and conclude that the public notice here was sufficient. See

Reinkemeyer v. SAFECO Ins. Co. of Am., 166 F.3d 982, 984

(9th Cir. 1999) (per curiam) (“[W]e are bound by state

supreme court interpretations of state law.”). But ATC is

mistaken. The adequacy of public notice was not at issue in

Bickel. Accordingly, the California Supreme Court had no

occasion to interpret the phrase “public notice required by

law” under § 65956(b), and the Bickel footnote is too thin to

control our analysis in this case. Galam v. Carmel (In re

Larry’s Apartment, L.L.C.), 249 F.3d 832, 839 (9th Cir. 2001)

(“[Q]uestions which merely lurk in the record, neither

brought to the attention of the court nor ruled upon, are not to

be considered as having so decided as to constitute

precedents.” (internal quotation marks and citation omitted)).

In opposition to ATC’s position, the City contends that

the California Court of Appeal’s decision in Mahon v. County

of San Mateo, 43 Cal. Rptr. 3d 235 (Cal. Ct. App. 2006),

controls the definition of “public notice required by law.” In

Mahon, the court held that such notice must contain a

statement that the permit will be deemed approved if the lead

agency does not act within § 65950’s time limits, regardless

of whether the notice is provided by the lead agency or the

applicant. Id. at 243. The court acknowledged that § 65956(b)

requires this warning only when the applicant gives public

notice, but it could find “no reason why the Legislature would

require an applicant to send out anything more than ‘public
AMERICAN TOWER CORP. V. CITY OF SAN DIEGO 19

notice required by law.’” Id. at 242. In effect, the court said

that the lead agency must warn the public that its own failure

to act will result in the application being deemed approved

and that if the lead agency does not include such a warning,

the lead agency has failed to give “the public notice required

by law.” The court thus construed the lead agency’s duty to

provide public notice to include at least those disclosures that

§ 65956(b) specifically requires of the applicant. The City

argues that because it failed to include the “deemed

approved” language in its public notice, the public notice was

ineffective to trigger § 65956’s automatic approval provision.

If the City were correct that Mahon controlled our

interpretation of the phrase “public notice required by law,”

we would be compelled to conclude that “the public notice

required by law” did not “occur” here, since the City’s notice

did not contain a statement that ATC’s CUP applications

would be deemed approved if the City did not act within

§ 65950’s time limit. But like ATC, the City is mistaken. “An

intermediate state appellate court decision is a ‘datum for

ascertaining state law which is not to be disregarded by a

federal court unless it is convinced by other persuasive data

that the highest court of the state would decide otherwise.’” 

Estrella v. Brandt, 682 F.2d 814, 817 (9th Cir. 1982)

(emphasis added) (quoting West v. Am. Tel. & Tel. Co., 311

U.S. 223, 237 (1940)); see also Hayes v. Cnty. of San Diego,

658 F.3d 867, 871–72 (9th Cir. 2011). Mahon does not

control our interpretation of § 65956(b), although it may

afford guidance as to how the California Supreme Court

would interpret that provision.

Here, the text of the statute is “persuasive data” that the

California Court of Appeal misinterpreted § 65956(b) in

Mahon. Section 65956(b) does not define the phrase “public
20 AMERICAN TOWER CORP. V. CITY OF SAN DIEGO

notice required by law.” It simply states that such notice must

have “occurred” before the lead agency’s failure to act may

be deemed approval of a permit application. Cal. Gov’t Code

§ 65956(b). Section 65956(b) then changes track to specify

the content of the public notice the applicant is required to

provide in order to exercise self help:

If the applicant chooses to provide public

notice, that notice shall include a description

of the proposed development substantially

similar to the descriptions which are

commonly used in public notices by the

permitting agency, the location of the

proposed development, the permit application

number, the name and address of the

permitting agency, and a statement that the

project shall be deemed approved if the

permitting agency has not acted within 60

days.

Id. (emphasis added). As the qualifying phrase “[i]f the

applicant chooses to provide public notice” suggests, these

requirements apply only to applicants. Despite this qualifying

phrase, the California Court of Appeal imposed § 65956(b)’s

requirements on the lead agency as well, reasoning that the

inclusion of such a qualifying phrase does not suggest that the

legislature intended a different standard for the notice

provided by the lead agency. Mahon, 43 Cal. Rptr. 3d at 242.

By reading out the qualifying phrase “[i]f the applicant

chooses to provide public notice,” the California Court of

Appeal violated the “fundamental canon of statutory

construction that a statute should not be construed so as to

render any of its provisions mere surplusage.” United States

v. Wenner, 351 F.3d 969, 975 (9th Cir. 2003); see also
AMERICAN TOWER CORP. V. CITY OF SAN DIEGO 21

Bowsher v. Merck &Co., 460 U.S. 824, 833 (1983) (restating

“the settled principle of statutory construction that we must

give effect . . . to every word of the statute”). We do not

believe the California Supreme Court would do the same and

therefore reject Mahon’s interpretation of “public notice

required by law.”

Our disagreement with Mahon’s ultimate interpretation

notwithstanding, we agree with the California Court of

Appeal that because § 65956(b) places no restriction on the

word “law,” “the public notice required by law” must be a

function of statutory and constitutional law. Mahon, 43 Cal.

Rptr. 3d at 241–42. We begin with the PSA. As we have

already indicated, § 65956 does not spell out what the lead

agency must include in its public notice. Nor does any other

provision of the PSA. Indeed, the only guidance we have in

the PSA is § 65956(d), which states that “[n]othing in

[§ 65956] shall diminish the permitting agency’s legal

responsibility to provide, where applicable, public notice and

hearing before acting on a permit application.” Accordingly,

we must look beyond the PSA for relevant provisions—

statutory and constitutional—that require public notice or a

hearing before acting on a permit application under these

circumstances.

We find relevant statutory provisions in the San Diego

Municipal Code, which imposes certain notice requirements

on the City before it may approve permit applications. The

City classified the Verus, Border, and Mission Valley

Facilities as Major Telecommunication Facilities. Section

141.0405(f) requires that CUP applications for Major

Telecommunication Facilities be “decided in accordance with

Process Three.” San Diego Mun. Code § 141.0405(f) (2001). 

Process Three, in turn, requires (1) that Notice of Application
22 AMERICAN TOWER CORP. V. CITY OF SAN DIEGO

be sent pursuant to § 112.0302(b) no later than ten business

days after the date on which an application is deemed

complete,6(2) that Notice of Public Hearing be provided

pursuant to § 112.0301(c),7(3) that Notice by Mail be

provided pursuant to § 112.0302, and (4) that Published

Notice be provided pursuant to § 112.0303. Conspicuously

absent from all of these provisions is a requirement that the

City provide notice that the CUP applications shall be

deemed approved if the City has not acted within the time

limits of the PSA. What is more, the parties do not dispute

that the City has complied with the notice provisions of the

San Diego Municipal Code. We therefore conclude that the

6 The Notice of Application must include (1) a general description of the

proposed development; (2) the location and size of the property that is the

subject of the application; (3) the community planning area in which the

proposed development is located and the name ofthe community planning

group’s designated contact person, if any; (4) the name and telephone

number of the City staff person to contact for additional information; and

(5) the name of the applicant and, with the consent of the applicant, the

applicant’s address and telephone number. San Diego Mun. Code

§ 112.0301(a)(1) (2001).

7 The Notice of Public Hearing must include (1) the general subject of

the public hearing, including the type of development permit and the name

of the proposed development; (2) the location and size of the property that

is the subject of the application; (3) the community planning area in which

the proposed development is located; (4) a general description of the

proposed development; (5) the name ofthe applicant and, with the consent

of the applicant, the applicant’s address and telephone number; (6) the

identity of the decision maker holding the public hearing; (7) the date,

time, and place of the public hearing; (8) a brief description of the general

procedures concerning the conduct ofthe hearing and the requirements for

filing an appeal; (9) the definition of an interested person for purposes of

appeal; and (10) the name and telephone number of the City staff person

to contact for additional information. San Diego Mun. Code

§ 112.0301(c)(1) (2001).
AMERICAN TOWER CORP. V. CITY OF SAN DIEGO 23

City satisfied the statutory component of “public notice

required by law.”

Next, we examine the constitutional principles underlying

that phrase. The California Supreme Court’s decision in Horn

v. County of Ventura, 596 P.2d 1134 (Cal. 1979), guides our

analysis. There, the court considered whether a property

owner was entitled to notice and an opportunity to be heard

before the County of Ventura approved a subdivision map on

an adjacent lot. Id. at 1136. The court held that when

adjudicatory land use decisions constitute “a substantial or

significant deprivation of the property rights of other

landowners, the affected persons are entitled to a reasonable

notice and an opportunity to be heard before the approval

occurs.” Id. at 1140. The property owner alleged that the

proposed subdivision would detrimentally affect his interests

by hindering access to his property and generating traffic,

parking congestion, and air pollution. Id. at 1136, 1139. The

court found these allegations sufficiently “substantial” to

trigger procedural due process protections. Id. at 1139.

The Horn court did not explicitly ground its analysis in

either Article I, Section 7, of the California Constitution or

the Fourteenth Amendment to the United States Constitution.

Rather, the court cited both its own precedent and United

States Supreme Court precedent in describing what it referred

to as “[t]he general application of due process principles.” Id.

at 1140. Despite this ambiguity, we view Horn’s holding as

rooted in the due process protections of the California

Constitution for two reasons. First, the court did not cite or

apply Mathews v. Eldridge, 424 U.S. 319 (1976), which

established the now-familiar framework for evaluating the

sufficiency of administrative procedures under the federal

Constitution. Id. at 334–35. Horn was decided in 1979, three
24 AMERICAN TOWER CORP. V. CITY OF SAN DIEGO

years after Mathews. If the California Supreme Court were

reaching the federal constitutional issue—rather than merely

looking to a federal analogue for guidance—we think it

unlikely the court would have omitted such an important

citation. The fact that the California Supreme Court had cited

Mathews and had applied its framework prior to Horn

strengthens our conclusion. See, e.g., Civil Serv. Ass’n v. City

& Cnty. of S.F., 586 P.2d 162, 167–68 (Cal. 1978).

Second, although California “ha[s] looked to the United

States Supreme Court’s precedents for guidance in

interpreting the contours of [its] own due process clause and

ha[s] treated the state clause’s prescriptions as substantially

overlapping those of the federal Constitution,” California’s

due process protections are, at times, broader than those

imposed by the Fourteenth Amendment. Today’s Fresh Start,

Inc. v. L.A. Cnty. Office of Educ., 303 P.3d 1140, 1149 (Cal.

2013). For example, when evaluating the sufficiency of

administrative procedures under the state constitution,

California courts may consider “the dignitary interest in

informing individuals of the nature, grounds, and

consequences of the action and in enabling them to present

their side of the story before a responsible government

official.” Id. at 1150 (internal quotation marks and citations

omitted). Therefore, because the Horn court did not apply the

Mathews framework and the federal and state due process

clauses are not coextensive, we construe Horn to hold that

California due process protections require reasonable notice

and an opportunity to be heard before a lead agency makes an

adjudicatoryland use decision that constitutes a substantial or
AMERICAN TOWER CORP. V. CITY OF SAN DIEGO 25

significant deprivation of other landowners’ property rights.8

Horn, 596 P.2d at 1140.

The question then becomes whether the automatic

approval of ATC’s CUP applications would constitute a

substantial or significant deprivation of other landowners’

property interests, such that the denial of reasonable notice

and a hearing would violate due process. ATC claims that the

automatic approval of its CUP applications would not

constitute a substantial or significant deprivation for two

reasons. First, ATC argues that because the facilities are

alreadyin existence, their continued presence cannot possibly

deprive adjacent landowners of any property rights. This

argument ignores ATC’s obligation to return the sites to their

original condition now that the original CUPs have expired

by their terms. Although as a practical matter, ATC seeks to

continue the use of its facilities, as a legal matter, ATC seeks

to alter the status quo rather than maintain it.

Second, 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. 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 ValleyFacility 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

8 We express no opinion on the requirements of the Due Process Clause

of the Fourteenth Amendment here.
26 AMERICAN TOWER CORP. V. CITY OF SAN DIEGO

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.

Accordingly, we have little trouble finding that the

automatic approval of ATC’s CUP applications would

constitute a substantial or significant deprivation of other

landowners’ property interests and that due process

protections therefore apply. These protections include

reasonable notice and an opportunity to be heard. Id. And as

the California Supreme Court made clear in Horn, the

“[n]otice must, of course, occur sufficiently prior to a final

decision to permit a meaningful predeprivation hearing to

affected landowners.” Id. at 1141 (internal quotation marks

omitted).

In sum, we hold that “the public notice required by law”

in this case includes the statutory provisions of the San Diego

Municipal Code and the due process protections set forth in

Horn.

9 Although the statutory provisions do not compel a

statement that the CUP applications shall be deemed

9 Were it not for the protections of due process, § 65956 would create

the possibility of collusion between the applicant and the lead agency. As

we have indicated, § 65956 incorporates the notice requirements imposed

by local law. Cal. Gov’t Code § 65956(d). If “the public notice required

by law” were limited to these provisions, the lead agency might be able to

provide the required notice, choose not to hold a public hearing, and allow

the permit applications to be deemed approved without any opportunity

for input from affected landowners. Due process intervenes to remove the

possibility of collusion against these affected landowners by guaranteeing

them reasonable notice and an opportunity to be heard before the approval

occurs. Horn, 596 P.2d at 1140.
AMERICAN TOWER CORP. V. CITY OF SAN DIEGO 27

approved if the City has not acted within the time limits of

the PSA, due process requires reasonable notice to “occur” in

time for affected landowners to participate in a meaningful

pre-deprivation hearing.

10

3. Insufficient Public Notice

In light of the foregoing, it is clear that “the public notice

required by law” did not “occur” before the City denied

10 We often speak of an individual or entity “giving” notice. As a result,

we usually think of notice as a discrete event at a specific time. Here,

however, we have spoken of notice “occurring.” We have done so for two

reasons. First, the relevant statute for our analysis, § 65956(b), uses the

verb “occur.” Cal. Gov’t Code § 65956(b) (“[T]he permit shall be deemed

approved only if the public notice required by law has

occurred.”(emphasis added)). Second, in Horn, the California Supreme

Court used the verb “occur” to define the due process requirements for

notice in this very context. 596 P.2d at 1141 (“Notice must, of course,

occur sufficiently prior to a final decision to permit a meaningful

predeprivation hearing to affected landowners.” (internal quotation marks

omitted)). The difference between the active construction—an individual

or entity “giving” notice—and the passive construction here—notice

“occurring”—is significant. Under Horn, once the protections of due

process are triggered, we see a familiar sequence: (1) publication of

notice, (2) hearing, and (3) final decision. But curiously, Horn tethers the

timing of the “occurrence” of notice to the decision on the merits, not to

the hearing: the notice must “occur” sufficiently prior to the final decision

to permit a meaningful predeprivation hearing to affected landowners.

Horn thus uses the concept of notice, together with a sequential

relationship between the “occurrence” of notice and the final decision, to

secure a meaningful predeprivation hearing, not just to notify affected

landowners of potential agency action. Under Horn, therefore, notice is an

extended concept that begins with publication and cannot be complete

before a meaningful predeprivation hearing for affected landowners.
28 AMERICAN TOWER CORP. V. CITY OF SAN DIEGO

ATC’s CUP applications.11 The City published a Notice of

Public Hearing for the Verus Facility on March 20, 2007, and

the Border and Mission Valley Facilities on July 18, 2007.12

The City then denied each permit shortly thereafter at a public

11 Much of the confusion surrounding § 65956(b) arises from this

passive construction, which disguises the author of the notice. At first

blush, this construction suggests that “the public notice required by law”

is the same regardless of whether the author is the lead agency or the

applicant. Digging a little deeper, we see that this cannot be the case.

Section 65956 makes clear that only the lead agency has a legal obligation

to give public notice. Cal. Gov’t Code §§ 65956(b), (d). Section 65956,

however, does not actually dictate the content of this public notice.

Instead, as we have discussed, § 65956 incorporates statutory and

constitutional provisions—“the public notice required by law”—including

the notice requirements of local law and the protections of due process.

In contrast to the lead agency, the applicant has no legal obligation to

give, for example, the public notice required by the San Diego Municipal

Code or the California Constitution. Section 65956(b) simply gives the

applicant the option to exercise self help. Only if the applicant chooses to

exercise this option does § 65956(b) spell out the content ofthe notice that

the applicant must give in order to do so. This notice is entirely distinct

from that required of the lead agency, partially in recognition of the fact

that affected landowners may not appreciate the significance of public

notice provided by a private party. To that end, § 65956(b) requires the

applicant to warn affected landowners that the project shall be deemed

approved if the lead agency has not acted within sixty days. We thusreject

the notion that § 65956(b)’s passive construction requires the same public

notice from the lead agency and the applicant.

12 We note that 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. But under Horn, the relevant public notice for

purposes of due process is the notice of a hearing, not merely notice that

an application has been filed. 596 P.2d at 1141.
AMERICAN TOWER CORP. V. CITY OF SAN DIEGO 29

hearing.

13 As the California Supreme Court held in Horn, the

due process component of “the public notice required by law”

protects affected landowners’ right to meaningful

participation at a public hearing, meaning that such notice

cannot be complete before the hearing itself. Id.

Consequently, ATC’s CUP applications were not deemed

approved under § 65956(b), and the City is entitled to

judgment as a matter of law on ATC’s PSA claim.

This is not to say that applicants have to put up with

unreasonable delay. We recognize that “the Legislature

enacted the [PSA] to relieve applicants from protracted and

unjustified governmental delays in processing their permit

applications.” Bickel, 946 P.2d at 429. To that end, § 65956

provides an applicant with two avenues of self help. Cal.

Gov’t Code § 65956. An applicant may file an action in court

to compel the lead agency to provide public notice and hold

a public hearing. Id. § 65956(a). Alternatively, an applicant

may provide its own public notice of the proposed action. Id.

§ 65956(b). ATC did neither.

In summary, a lead agencymust act on a CUP application

within the time limits provided in the PSA, and if it does not

act, the CUP application is deemed approved. But when other

landowners are affected, such deemed approval would be

improper unless the lead agency holds a properly noticed

hearing—i.e., a hearing that complies with the requirements

of due process. As the PSA itself indicates, the CUP

13 The hearing for the Verus Facility was held on April 4, 2007, only

fifteen days after the Notice of Public Hearing was published. The

hearings for the Border and Mission Valley Facilities were held on August

8, 2007, and September 12, 2007, the latter only fifty-six days after the

Notices of Public Hearing were published.
30 AMERICAN TOWER CORP. V. CITY OF SAN DIEGO

application is not deemed approved in that instance. Once a

properly noticed hearing is held, the lead agency can actually

decide the issue. If the lead agency then denies the CUP

application, that is an end to application process, and the

applicant can pursue any other available remedies. If the lead

agency actually approves the CUP application after the

hearing, an aggrieved party can pursue available remedies at

that point. If, after the hearing, the lead agency does nothing,

the CUP application will be deemed approved at some point.

Here, we need not decide at what precise point that would

happen, or at what point an aggrieved party could pursue

available remedies regarding the deemed approval. In the

case before us, the City denied the CUP applications during

the hearings, and therefore the CUP applications could not be

deemed approved. Accordingly, we disagree with the district

court and reverse the judgment for ATC on this ground.

B. The Federal Telecommunications Act Claims

ATC advances three claims under the TCA. First, ATC

claims that the City’s decision to deny the CUP applications

was not supported by substantial evidence because the City

misapplied its own Land Development Code. See 47 U.S.C.

§ 332(c)(7)(B)(iii). Second, ATC claims that the City’s denial

of the CUP applications constituted unreasonable

discrimination among providers of functionally equivalent

services. See id. § 332(c)(7)(B)(i)(I). And third, ATC claims

that the City’s denial of the CUP applications constituted an

effective prohibition of personal wireless services. See id.

§ 332(c)(7)(B)(i)(II). We affirm the district court’s grant of

summary judgment in favor of the City on all three claims.

The City evaluated the CUP applications under the proper

provision of the Land Development Code and supported its

decision to deny the CUP applications with substantial
AMERICAN TOWER CORP. V. CITY OF SAN DIEGO 31

evidence. In addition, the City did not unreasonably

discriminate among providers of functionally equivalent

services because ATC and the City are not functionally

equivalent providers. Finally, ATC’s effective prohibition

claim fails because ATC did not demonstrate that its

proposals were the least intrusive means of filling a

significant gap in coverage.

1. “Substantial Evidence”

Under the TCA, “[a]ny decision by a State or local

government or instrumentality thereof to deny a request to

place, construct, or modify personal wireless service facilities

shall be . . . supported by substantial evidence contained in a

written record.” Id. § 332(c)(7)(B)(iii). We have held that

“this language is meant to trigger the traditional standard used

for judicial review of agency decisions.” MetroPCS, Inc. v.

City & Cnty. of S.F., 400 F.3d 715, 723 (9th Cir. 2005)

(internal quotation marks and citations omitted). However,

the substantial evidence inquiry does not incorporate the

substantive federal standards imposed by the TCA. Id.

Instead, this inquiry requires us to determine “whether the

zoning decision at issue is supported by substantial evidence

in the context of applicable state and local law.” Id. at

723–24. “In other words, we must take applicable state and

local regulations as we find them and evaluate the City

decision’s evidentiary support (or lack thereof) relative to

those regulations.” Id. at 724. The substantial evidence

inquiry is deferential: “[we] may not overturn the [City’s]

decision on ‘substantial evidence’ grounds if that decision is

authorized by applicable local regulations and [is] supported

by a reasonable amount of evidence (i.e., more than a

‘scintilla’ but not necessarily a preponderance).” Id. at 725.
32 AMERICAN TOWER CORP. V. CITY OF SAN DIEGO

Here, local law prohibited the Cityfrom approving ATC’s

CUP applications unless the facilities “[would] comply to the

maximum extent feasible with the regulations of the Land

Development Code.” San Diego Mun. Code § 126.0305(c)

(2001). Because the City could not make this finding for any

of ATC’s facilities, it denied ATC’s CUP applications.

Specifically, the City classified the Verus, Border, and

Mission Valley Facilities as Major Telecommunication

Facilities under the Land Development Code. “Major

telecommunication facilities [must] be designed to be

minimally invasive through the use of architecture, landscape

architecture, and siting solutions.” Id. § 141.0405(f)(2)

(2001). The City was unable to find that ATC had complied

with this requirement “to the maximum extent feasible,” id.

§ 126.0305(c) (2001), and thus could not approve ATC’s

CUP applications.

ATC’s sole contention on appeal is that the City’s

decision to deny the CUP applications was not supported by

substantial evidence because the City applied the wrong

design standard. That is, according to ATC, the City

erroneously applied the design standard for Minor

Telecommunication Facilities rather than the design standard

for Major Telecommunication Facilities. As proof, ATC cites

the design standard for Minor Telecommunication Facilities,

which states that “[a]n antenna facility will be considered a

minor telecommunication facility if the facility . . . is

concealed from public view or integrated into the architecture

or surrounding environment.” Id. § 141.0405(e)(1) (2001).

Thus, in ATC’s view, the key distinction between Major and

Minor Telecommunication Facilities is that Minor

Telecommunication Facilities can be concealed from public

view or integrated into their surroundings, and Major

Telecommunication Facilities cannot. Despite this key
AMERICAN TOWER CORP. V. CITY OF SAN DIEGO 33

distinction, however, the City repeatedly suggested that ATC

needed to “conceal” or “integrate” its facilities in order to

obtain the desired CUPs. Because the City allegedly

evaluated the CUP applications under the design standard for

Minor Telecommunication Facilities, ATC argues that the

City’s denials could not have been supported by substantial

evidence, and the judgment of the district court in favor of the

City must be reversed.

ATC misinterprets the law and mischaracterizes

the record. The line of demarcation between Major and

Minor Telecommunication Facilities is not the possibility

of concealment or integration, as ATC suggests. On

the contrary, the Land Development Code expressly

requires concealment or integration of Major

Telecommunication Facilities under certain circumstances.

Id. § 141.0405(f)(1)(C) (2001) (stating that Major

Telecommunication Facilities are not permitted “[w]ithin 1⁄2

mile of another major telecommunication facility, unless the

proposed facility will be concealed from public view or

integrated into the architecture or surrounding environment”).

What is more, the record makes it perfectly clear that the City

properly evaluated the CUP applications under the design

standard for Major Telecommunication Facilities. In each

written decision, the Hearing Officer set out the design

standards for both Major and Minor Telecommunication

Facilities. She then stipulated that the relevant CUP

application was for a Major Telecommunication Facility

and found that the proposed facility did not conform to the

Land Development Code’s requirement that Major

Telecommunication Facilities “be designed to be minimally

visible through the use of architecture, landscape architecture,

and siting solutions.” Id. § 141.0405(f)(2) (2001). Because

the Hearing Officer could not find that ATC’s facilities
34 AMERICAN TOWER CORP. V. CITY OF SAN DIEGO

complied to the maximum extent feasible with this

requirement, she denied the CUP applications. There was no

legal error.

Furthermore, on the merits, the City supported its decision

to deny the CUP applications with substantial evidence. From

the time ATC filed its CUP 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 Telecommunication Facilities beminimallyinvasive.14

Id. §§ 126.0305(c) (2001), 141.0405(f)(2) (2001). In

response, ATC consistentlyrefused 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.

MetroPCS, Inc., 400 F.3d at 725. Accordingly, the City’s

decision was supported by “substantial evidence” under the

TCA, and the district court properly granted summary

judgment in favor of the City on this claim. Id.

2. “Unreasonable Discrimination”

The TCA provides that “[t]he regulation of the placement,

construction, and modification of personal wireless service

facilities by any State or local government or instrumentality

14 We have held that aesthetic concerns may be a valid basis for zoning

decisions. T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, 994 (9th

Cir. 2009).
AMERICAN TOWER CORP. V. CITY OF SAN DIEGO 35

thereof . . . shall not unreasonably discriminate among

providers of functionally equivalent services.” 47 U.S.C.

§ 332(c)(7)(B)(i)(I). “[P]roviders alleging unreasonable

discrimination must show that they have been treated

differently from other providers whose facilities are similarly

situated in terms of the structure, placement or cumulative

impact as the facilities in question.” MetroPCS, Inc., 400 F.3d

at 727 (internal quotation marks and citation omitted). The

aggrieved providers must then show that the discrimination

was, in fact, unreasonable. Id. (“[S]ome discrimination

among providers of functionally equivalent services is

allowed. Any discrimination need only be reasonable.”

(internal quotation marks and citation omitted)).

ATC identifies only one allegedly “similarly situated”

provider: the City. ATC claims that the City is “similarly

situated” because ATC and the City both operate

telecommunication facilities, provide similar services, and

collect significant revenue from their operations. For

example, ATC emphasizes that ATC and the City provide

both commercial and emergencycommunications services. In

addition, ATC points out that the City has generated

substantial revenue from its communications network through

private leases, as does ATC.

These relevant similarities notwithstanding, ATC and the

City are not “similarly situated” providers. In contrast to

ATC’s telecommunication operations, which are entirely

commercial, the City’s telecommunication operations are

primarilypublic in nature. The Cityprovides communications

services to its water, fire, and police departments, as well as

other government agencies. By providing these services in

house, the City produces an important public benefit without

private-sector cost. And although the City does generate some
36 AMERICAN TOWER CORP. V. CITY OF SAN DIEGO

revenue through private leases, it does not advertise available

space to wireless carriers, which demonstrates the minimal

degree to which the City is engaged in any form of

competition with ATC. This record simply cannot support a

finding that ATC and the Cityprovide functionally equivalent

services. As a result, we conclude that ATC and the City are

not “similarly situated” providers for purposes of the TCA.

Moreover, even if ATC and the City were “similarly

situated” providers, the City’s discrimination would be

reasonable. The City denied the CUP applications based on

aesthetic concerns. As we have recognized, “these are

legitimate concerns for a locality.” City of Anacortes,

572 F.3d at 994. ATC contends that it was unreasonable for

the City to deny its CUP applications because the City’s

telecommunication facilities were as visually invasive as

ATC’s. We are in no position to evaluate this factual

contention. But even if the City’s facilities were eyesores,

aesthetic concerns are not absolute. The City was free to take

other factors into consideration when authorizing its own

facilities. Because ATC and the City are not “similarly

situated” providers and the City’s discrimination against ATC

was not unreasonable, the unreasonable discrimination claim

fails as a matter of law.

3. “Effective Prohibition”

The TCA mandates that “[t]he regulation of the

placement, construction, and modification of personal

wireless service facilities by any State or local government or

instrumentality thereof . . . shall not prohibit or have the

effect of prohibiting the provision of personal wireless

services.” 47 U.S.C. § 332(c)(7)(B)(i)(II). A locality violates

this provision “if it prevent[s] a wireless provider from
AMERICAN TOWER CORP. V. CITY OF SAN DIEGO 37

closing a ‘significant gap’ in service coverage.” City of

Anacortes, 572 F.3d at 995 (citation omitted). We have

adopted a two-pronged analysis, “requiring (1) the showing

of a ‘significant gap’ in service coverage and (2) some

inquiry into the feasibility of alternative facilities or site

locations.” Id. (internal quotation marks and citation omitted).

The significant gap prong is satisfied “whenever a provider

is prevented from filling a significant gap in its own service

coverage.” MetroPCS, Inc., 400 F.3d at 733. We evaluate the

feasibility prong under a “least intrusive means” standard,

which “requires that the provider show that the manner in

which it proposes to fill the significant gap in services is the

least intrusive on the values that the denial sought to serve.”

City of Anacortes, 572 F.3d at 995 (internal quotation marks

and citation omitted).

Because the district court assumed a significant gap in

service coverage, we limit our review to the feasibility prong.

In determining whether ATC met its burden of demonstrating

that its facilities were the “least intrusive means,” we

examine the City’s stated ground for concluding otherwise.

Id. at 996. As discussed previously, the City denied the CUP

applications because it was unable to find that the facilities

complied to the maximum extent feasible with the regulations

of the Land Development Code, including the requirement

that Major Telecommunication Facilities be minimally

invasive. San Diego Mun. Code §§ 126.0305(c) (2001),

141.0405(f)(2) (2001). To prevail on this claim, therefore,

ATC must show that its facilities were the “least intrusive

means” in light of the aesthetic values that motivated the

City’s decision to deny the CUP applications.

ATC has not borne its burden. During the review process,

ATC rejected relocation of the facilities or modifications that
38 AMERICAN TOWER CORP. V. CITY OF SAN DIEGO

involved reduction in height or redesign of the towers. ATC

essentially insisted that the City accept ATC’s conclusion that

the existing facilities were the “least intrusive means,”

without offering a feasibility analysis of alternative designs

or sites for the City to reach its own conclusion. In effect,

ATC would make the applicant—rather than the locality—the

arbiter of feasibility and intrusiveness, gutting the “least

intrusive means” standard with predictable, applicant-friendly

results.

As we explained in MetroPCS, Inc., the “least intrusive

means” standard “allows for a meaningful comparison of

alternative sites . . . [and] gives providers an incentive to

choose the least intrusive [means] in their first [ ]

application[].” 400 F.3d at 734–35. To achieve these

objectives, the applicant must make a prima facie showing of

effective prohibition, which the locality may then rebut by

demonstrating the existence of a potentially available and

technically feasible alternative. City of Anacortes, 572 F.3d

at 996–99. ATC did not adduce evidence allowing for a

meaningful comparison of alternative designs or sites, and the

City was not required to take ATC’s word that these were the

best options. Consequently, ATC failed to show that its

facilities were the least intrusive means of filling a significant

gap in service coverage, and the City is entitled to judgment

as a matter of law on the effective prohibition claim. Cf. id.

at 989, 996–99 (finding a violation of § 332(c)(7)(B)(i)(II)

where the provider made a prima facie showing of effective

prohibition, including an analysis of eighteen alternative sites,

and the locality failed to rebut the prima facie showing with

evidence of available alternative sites).
AMERICAN TOWER CORP. V. CITY OF SAN DIEGO 39

C. California Code of Civil Procedure § 1094.5 Claim

ATC claims that the district court erred in evaluating the

City’s decision to deny the CUP applications for substantial

evidence because ATC had a fundamental vested right to

continue its operation of the Verus, Border, and Mission

Valley Facilities. “The grant or denial of a conditional use

permit is an administrative or quasi-judicial act. Judicial

review must be in accordance with [California] Code of Civil

Procedure section 1094.5.” Goat Hill Tavern v. City of Costa

Mesa, 8 Cal. Rptr. 2d 385, 388 (Cal. Ct. App. 1992) (internal

citations omitted). “If [an administrative] decision does not

substantially affect a fundamental vested right, the trial court

considers only whether the findings are supported by

substantial evidence in light of the whole record.” Id. If,

however, “an administrative decision substantially affects a

fundamental vested right, the trial court must exercise its

independent judgment on the evidence and find an abuse of

discretion if the findings are not supported by the weight of

the evidence.” Id.

“The term ‘vested’ in the sense of ‘fundamental vested

rights’ to determine the scope of judicial review . . . is not

synonymous with its use in the ‘vested rights’ doctrine

relating to land use and development.” Whaler’s Village Club

v. Cal. Coastal Comm’n, 220 Cal. Rptr. 2, 8 (Cal. Ct. App.

1985). “Whether an administrative decision substantially

affects a fundamental vested right must be decided on a caseby-case basis.” 301 Ocean Ave. Corp. v. Santa Monica Rent

Control Bd., 279 Cal. Rptr. 636, 641 (Cal. Ct. App. 1991).

“[N]o exact formula exists by which to make this

determination, [but] courts are less sensitive to the

preservation of purely economic interests.” Id. (internal

citation omitted). “[T]he issue in each case is whether the
40 AMERICAN TOWER CORP. V. CITY OF SAN DIEGO

affected right is deemed to be of sufficient significance to

preclude its extinction or abridgment by a body lacking

judicial power.” Id.(internal quotationmarks, alterations, and

citation omitted).

ATC does not have a fundamental vested right to the

continued operation of the Verus, Border, and Mission Valley

Facilities. The original CUP for each facility contained an

express provision stating that the CUP would expire ten years

from the date of its approval, absent renewal. Additionally,

the original CUP for each facility declared that the permittee

was required to return the site to its original condition at the

time of expiration or denial of renewal. ATC allowed the

original CUPs to expire bytheir terms. As the permittee, ATC

had a legal obligation to remove the facilities and return the

sites to their original condition. By failing to obtain new

CUPs before the originals expired, ATC abandoned any right

it had to continue operating the facilities; it could not

reasonably rely on the CUPs’ renewal.

Despite the expiration of the original CUPs, ATC

contends that it had a reasonable expectation of renewal

because the City issued “extension of time” provisions on

CUPs for similar facilities; the City granted collocation

permits on the Verus, Border, and Mission Valley sites;

these facilities are integral components of ATC’s

telecommunication network; and ATC would suffer financial

loss if its CUP applications were denied. We disagree. The

City’s conduct with third parties cannot affect ATC’s

reasonable expectations in the face of the plain language of

the original CUPs. Moreover, the importance of the Verus,

Border, and Mission Valley Facilities to ATC’s

telecommunication network and the financial loss ATC

would suffer if its CUP applications were denied are purely
AMERICAN TOWER CORP. V. CITY OF SAN DIEGO 41

economic interests that do not rise to the level of a

fundamental vested right under California law. See, e.g., San

Marcos Mobilehome Park Owners’ Ass’n v. City of San

Marcos, 238 Cal. Rptr. 290, 294 (Cal. Ct. App. 1987)

(denying rent increase in rent controlled building did not

implicate a fundamental vested right as a purely economic

interest); Mobil Oil Corp. v. Superior Court, 130 Cal. Rptr.

814, 818, 823–24 (Cal. Ct. App. 1976) (requiring installation

of vapor recovery systems at gas stations did not implicate a

fundamental vested right as a purely economic interest).

ATC relies on the California Court of Appeal’s decision

in Goat Hill Tavern to argue that we should disregard the

expiration of the original CUPs. There, the owner of a tavern

that had been in existence for thirty-five years applied for a

new CUP to accommodate a $1.75 million refurbishment of

the tavern. Goat Hill Tavern, 8 Cal. Rptr. 2d at 390. The

tavern owner obtained a CUP that expired just six months

later. Id. at 386. The city subsequently denied the tavern

owner’s application to renew the six-month CUP. Id. at 387.

The tavern owner then sued the city for a writ of mandate

under California Code of Civil Procedure § 1094.5. Id. at 388.

The trial court found that the tavern owner had a fundamental

vested right and that the city’s decision was not supported by

the evidence. Id. at 391. In affirming the trial court’s

decision, the California Court of Appeal reasoned that it was

“utterly implausible that [the tavern owner] knowingly gave

up all rights to continue operating Goat Hill Tavern in

exchange for the opportunity to keep his game room

expansion open for six months.” Id. at 391 n.4.

Goat Hill Tavern is readily distinguishable from the case

before us. In Goat Hill Tavern, the CUP was necessary to

accommodate a major expansion yet it expired only six
42 AMERICAN TOWER CORP. V. CITY OF SAN DIEGO

months later. The CUP was thus issued with the

understanding that it would be renewed. Here, in contrast, the

original CUPs explicitly required ceasing all activity at

ATC’s facilities and returning the sites to their original

condition ten years after the permit was issued if new CUP

applications were not timely submitted and ultimately

approved.

We find a far better analogue in Metropolitan Outdoor

Advertising Corp. v. City of Santa Ana, 28 Cal. Rptr. 2d 664

(Cal. Ct. App. 1994). There, a billboard owner sought a CUP

to continue operation of a billboard. Id. at 665. After the city

denied the CUP application, the billboard owner sued the city

for a writ of mandate under California Code of Civil

Procedure § 1094.5, claiming that it possessed a fundamental

vested right in the continued use and maintenance of the

billboard. Id. The California Court of Appeal rejected this

claim because the billboard owner had agreed to be bound by

the CUP’s terms, including removal of the sign after the

CUP’s expiration. Id. at 666. The court also emphasized that

the billboard owner would be required to remove only one of

its many signs and that, because the billboard owner had

agreed to the CUP’s terms, it “knew it would have to remove

the billboard.” Id. The same is true here. ATC agreed to the

original CUP’s terms, so ATC knew it would have to remove

its facilities if it did not renew the CUPs after ten years.

Moreover, the Verus, Border, and Mission Valley Facilities

are only three of ATC’s many telecommunication facilities.

Accordingly, we conclude that ATC does not have a

fundamental vested right to the continued use of its facilities,

and, as discussed above, substantial evidence in the record

supports the City’s decision to deny the CUP applications. As

a result, the district court properlygranted summary judgment
AMERICAN TOWER CORP. V. CITY OF SAN DIEGO 43

in favor of the City on ATC’s California Code of Civil

Procedure § 1094.5 claim.

D. The Equal Protection Clause Claim

ATC contends that the district court erred in applying

rational basis scrutiny to its Equal Protection Clause claim

because this claim allegedly implicates fundamental First

Amendment rights. Alternatively, ATC argues that even if

rational basis scrutiny applies, the City’s denial of the CUP

applications violated the Equal Protection Clause because

ATC and the City are similarly situated service providers, and

there was no rational basis for treating the two differently.

Municipal decisions like those at issue here “are

presumptively constitutional and, therefore, need only be

rationally related to a legitimate state interest, unless the

distinctive treatment of the party involves either a

fundamental right or a suspect classification.” Del Monte

Dunes at Monterey, Ltd. v. City of Monterey, 920 F.2d 1496,

1508 (9th Cir. 1990); see also City of New Orleans v. Dukes,

427 U.S. 297, 303 (1976) (“States are accorded wide latitude

in the regulation of their local economies under their police

powers, and rational distinctions may be made with

substantially less than mathematical exactitude.”). Although

the freedom of speech, secured by the First Amendment,

certainly qualifies as fundamental, Thornhill v. Alabama,

310 U.S. 88, 95 (1940), it is not implicated in this case. ATC

does not assert its right to engage in speech. Instead, ATC

asserts its right to sell tower space to wireless providers, and

this right does not trigger heightened scrutiny. See Bench

Billboard Co. v. City of Cincinnati, 675 F.3d 974, 986 (6th

Cir. 2012). ATC describes in lofty terms the significance of

wireless communication in modern American society, but it
44 AMERICAN TOWER CORP. V. CITY OF SAN DIEGO

has adduced no evidence that the citizens of San Diego will

be denied coverage because the City rejected ATC’s CUP

applications. Consequently, because no fundamental right is

at issue, heightened scrutiny is not warranted here.

Applying rational basis scrutiny, we find the City’s

decision to deny the CUPs unobjectionable. As we have

discussed, ATC and the City are not similarly situated service

providers. Moreover, even if ATC and the City were similarly

situated providers, the City’s decision was rationally related

to legitimate state interests: minimizing the aesthetic impact

of wireless facilities on the community and providing

communications services for its various departments at a

reduced cost. In view of these legitimate interests, we cannot

say that the City’s decision to deny the CUPs was irrational.

Accordingly, ATC’s Equal Protection Clause claim must fail.

IV. CONCLUSION

We reverse the district court’s grant of summary

judgment in favor of ATC on the PSA claim. The CUP

applications were not deemed approved because “the public

notice required by law” did not “occur” before the City

denied them. We affirm the district court’s grant of summary

judgment in favor of the City on the remaining claims. There

was no violation of the TCA. The City evaluated the CUP

applications under the proper provision of the Land

Development Code and supported its decision to deny them

with substantial evidence. The City did not unreasonably

discriminate among providers of functionally equivalent

services because ATC and the City are not “similarly

situated” providers. ATC has failed to show effective

prohibition because it has not demonstrated that its proposals

were the least intrusive means of filling a significant gap in
AMERICAN TOWER CORP. V. CITY OF SAN DIEGO 45

coverage. ATC cannot prevail under California Code of Civil

Procedure § 1094.5 because it does not have a fundamental

vested right to the continued use of the Verus, Border, and

Mission Valley Facilities. Finally, there was no violation of

the Equal Protection Clause because the City’s decision to

deny the CUP applications was rationally related to the City’s

legitimate interest in minimizing the aesthetic impact of

wireless facilities and in providing public communications

services.

REVERSED IN PART, AFFIRMED IN PART.