Why it matters: In the American Tower case, the Ninth Circuit held that under the Permit Streamlining Act, CUP applications were not deemed approved before they were denied by the City where the “public notice required by law” did not “occur.”

Facts: American Tower Corporation (ATC), a leading owner and operator of telecommunications facilities around the world, applied for Conditional Use Permits (CUPs) for three existing telecommunications facilities within the City of San Diego after the original CUPs expired by their terms. The City published separate Notices of Public Hearing for each CUP application, and following public hearings, the City denied all three applications because they did not comply to the maximum extent feasible with the City’s Land Development Code. The City’s denials of each CUP application occurred more than 60 days after the City’s determinations that the applications were complete and exempt from CEQA. ATC challenged the denials, asserting that the CUPs were deemed approved as provided by Section 65956(b) of the Permit Streamlining Act (Government Code Section 65950 et seq.).

Decision: The Ninth Circuit Court of Appeals interpreted the meaning of “the public notice required by law” for purposes of the Permit Streamlining Act’s deemed approval provision to require that the public notice include notice that the CUP applications would be deemed approved if the City does not act within the 60-day time limit provided by the PSA. The court held that the applications were not deemed approved because while public notice was given in accordance with the provisions of the San Diego Municipal Code, the Municipal Code provisions did not require notice that the applications would be deemed approved if not acted on within the 60-day period and therefore the City was entitled to judgment as a matter of law with regard to ATC’s PSA Claims.

Practice Pointers:

  • If there is a concern that a public agency is not clear on the specific requirements that must be met as required by the Permit Streamlining Act, or it becomes apparent that the public agency may delay taking action on such project, an applicant should consider filing its own public notice as provided for in Section 65956(b) of the PSA in order to exercise self-help under the PSA’s deemed approval provision.