American Tower Corporation v. City of San Diego, et al

Filing

FILED OPINION (FERDINAND F. FERNANDEZ, JOHNNIE B. RAWLINSON and JAY S. BYBEE) REVERSED IN PART; AFFIRMED IN PART. Judge: JSB Authoring. FILED AND ENTERED JUDGMENT. [9204614] [11-56766, 11-56861, 11-56767, 11-56862]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMERICAN TOWER CORPORATION, a
Delaware corporation,
Plaintiff-Appellee,
v.

No. 11-56766
D.C. No.
3:07-cv-00399BEN-WVG

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.

No. 11-56767
D.C. No.
3:07-cv-00399BEN-WVG

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AMERICAN TOWER CORP. V. CITY OF SAN DIEGO

AMERICAN TOWER CORPORATION, a
Delaware corporation,
Plaintiff-Appellant,
v.

No. 11-56861
D.C. No.
3:07-cv-00399BEN-WVG

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,

D.C. No.
3:07-cv-00399BEN-WVG

v.

OPINION

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

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AMERICAN TOWER CORP. V. CITY OF SAN DIEGO

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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.

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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.

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AMERICAN TOWER CORP. V. CITY OF SAN DIEGO

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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

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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.

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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 property in 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

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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

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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

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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.

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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’s CUP 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

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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].”1 Id. § 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 by Sections 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.

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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 of the 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 of the 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

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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.

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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

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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.4 Id.
§ 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.

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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.5 Id. 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.

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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

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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

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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

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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

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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 of the 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 of the 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 of the 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).

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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

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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
adjudicatory land use decision that constitutes a substantial or

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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
already in 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 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
8

We express no opinion on the requirements of the Due Process Clause
of the Fourteenth Amendment here.

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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.

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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.

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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 of the 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 thus reject
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.

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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 agency must 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.

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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

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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.

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Here, local law prohibited the City from 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

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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 ½
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

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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 be minimally invasive.14
Id. §§ 126.0305(c) (2001), 141.0405(f)(2) (2001). 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.
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).

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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 emergency communications 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
primarily public in nature. The City provides 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

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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 City provide 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

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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

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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).

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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

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affected right is deemed to be of sufficient significance to
preclude its extinction or abridgment by a body lacking
judicial power.” Id. (internal quotation marks, 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 by their 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

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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

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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 properly granted summary judgment

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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

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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

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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.