In Re Cell Tower Litigation

ORDER:

• GRANTING IN PART AND DENYING IN PART ATC’S MOTION FOR SUMMARY JUDGMENT

• GRANTING IN PART AND DENYING IN PART THE CITY’S MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

Plaintiff American Tower Corporation (“ATC”) and Defendants City of San Diego, City Council of City of San Diego, and Development Services Department of City of San Diego (“the City”) have filed cross motions for summary judgment in Case No. 07cv399 BEN (WVG). Dkt. Nos. 128, 130. The parties each seek summary judgment on certain claims concerning the denial of a conditional use permit (“CUP”) for a wireless communications facility located at 2222 Versus Street (“Versus”). For the reasons discussed below, the Court grants in part and denies in part both motions for summary judgment.

BACKGROUND

ATC owns a 90-foot telecommunications tower and associated building at the Versus site in San Diego. Telecommunications providers use or lease space on the tower to wireless services providers. The previous CUP for the Versus site was issued in 1995 for a period of ten years. The Versus CUP did hot provide for extensions or renewal. The CUP specifically required all activity at the site cease and the site be returned…