Primeco Personal v. City of Mequon ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-1514, 03-1548
PRIMECO PERSONAL COMMUNICATIONS, LIMITED
PARTNERSHIP, d/b/a VERIZON WIRELESS,
Plaintiff-Appellee, Cross-Appellant,
v.
CITY OF MEQUON,
Defendant-Appellant, Cross-Appellee.
____________
Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 01-C-1205—Lynn Adelman, Judge.
____________
ARGUED SEPTEMBEr 15, 2003—DECIDED DECEMBER 18, 2003
____________
Before POSNER, KANNE, and ROVNER, Circuit Judges.
POSNER, Circuit Judge. One of the concerns that led up to
the enactment of the Telecommunications Act of 1996, 47
U.S.C. §§ 151 et seq., was that zoning decisions by local
governments were unreasonably retarding the growth of
cellphone and other wireless services. Congress decided not
to preempt local regulation entirely, but instead (so far as
bears on this case) to require that the denial by a zoning
board or other state or local government body of a permit to
2 Nos. 03-1514, 03-1548
construct “personal wireless service facilities,” such as an
antenna high enough to be in the line of sight of cellphone
users, as required for cellphone service, “shall be in writing
and supported by substantial evidence contained in a
written record.” § 332(c)(7)(B)(iii); see, e.g., VoiceStream
Minneapolis, Inc. v. St. Croix County, 342 F.3d 818, 829-32 (7th
Cir. 2003). This requirement is enforceable by suit “in any
court of competent jurisdiction.” § 332(c)(7)(B)(v). But
Congress did not prescribe a standard to guide the local
authorities’ determination whether to grant a permit.
Turned down by the planning commission of the City of
Mequon, a suburb of Milwaukee, and on appeal by the
City’s board of zoning appeals (without opinion, so that the
only written record of the evidence and reasoning support-
ing denial is the transcript of the planning commission’s
deliberations), for a permit to build an antenna in its
preferred location, Verizon sued the City in the federal
district court in Milwaukee. It contended that the denial of
its application was not supported by substantial evidence.
It based federal jurisdiction on the presence of a federal
question, namely whether the City had complied with the
provision that we quoted from the Telecommunications Act.
The district judge granted summary judgment for Verizon
and ordered Mequon to issue the permit. The City has
appealed. Verizon has cross-appealed from the denial of
attorney’s fees.
The “substantial evidence” standard is convention-
ally used for judicial review of agencies’ decisions, and
though it is unusual for a federal court to be reviewing
the decision of a nonfederal agency, we are given no reason
to suppose that the term “substantial evidence” in the
Telecommunications Act bears a different meaning from the
usual one. And indeed we have held that it bears the same
meaning. VoiceStream Minneapolis, Inc. v. St. Croix County,
Nos. 03-1514, 03-1548 3
supra, 342 F.3d at 830; Aegerter v. City of Delafield, 174 F.3d
886, 889-90 (7th Cir. 1999). So have the other federal courts
of appeals that have considered the question. See Preferred
Sites, LLC v. Troup County, 296 F.3d 1210, 1218 (11th Cir.
2002), and cases cited there. As there is no practical differ-
ence between the substantial-evidence standard and the
even more familiar clearly-erroneous standard when the
latter standard is used to guide the application of a legal
standard to district court factfindings, School District of
Wisconsin Dells v. Z.S. ex rel. Littlegeorge, 295 F.3d 671, 674-
75 (7th Cir. 2002), and cases cited there, the question in this
case comes down to whether the Mequon planning commis-
sion was clearly in error to turn down Verizon’s application,
in light of the evidence that had been placed before the
commission.
A reasonable decision whether to approve the construc-
tion of an antenna for cellphone communications requires
balancing two considerations. The first is the contribution
that the antenna will make to the availability of cellphone
service. The second is the aesthetic or other harm that the
antenna will cause. The unsightliness of the antenna and the
adverse effect on property values that is caused by its
unsightliness are the most common concerns, as in
VoiceStream Minneapolis, Inc. v. St. Croix County, supra, 342
F.3d at 831-32, and Southwestern Bell Mobile Systems, Inc. v.
Todd, 244 F.3d 51, 61-62 (1st Cir. 2001). But adverse environ-
mental effects are properly considered also, 360/ Degrees
Communications Co. v. Board of Supervisors, 211 F.3d 79, 82,
84 (4th Cir. 2000); cf. AT&T Wireless PCS, Inc. v. Winston-
Salem Zoning Bd. of Adjustment, 172 F.3d 307, 315 (4th Cir.
1999), and even safety effects: fear of adverse health effects
from electromagnetic radiation is excluded as a factor, 47
U.S.C. § 332(c)(7)(B)(iv), but not, for example, concern that
the antenna might obstruct vision or topple over in a strong
wind. See generally Timothy J. Tryniecki, “Cellular Tower
4 Nos. 03-1514, 03-1548
Siting Jurisprudence Under the Telecommunications Act of
1996—The First Five Years,” 37 Real Propery, Probate & Trust
J. 271, 279-84 (2002).
The balancing test can be refined a bit. The availability
of cellphone service is a function of the number of exist-
ing service providers and the coverage and quality of ser-
vice that the applicant could achieve by constructing his an-
tenna in another location where its unsightliness (or other
harmful effects, but none is suggested here) would be less
of a problem or by sharing an already existing telecommuni-
cations tower. The unsightliness of an antenna depends on
its height, thickness, and general appearance, the number of
other antennas in the area, and the character of the area’s
land uses (for example, residential versus commercial),
including the height of other buildings in the area. Coverage
is a function of the number of providers, the coverage by
each provider, and the increase in overall coverage at the
disputed site if the antenna is built there, compared to
alternative locations. Thus a new firm that has from a
service standpoint two equally good alternative sites can
rightly be compelled to place the antenna in the less con-
spicuous location, which might be an existing telecommuni-
cations tower. See Metro PLS v. City & County of San Fran-
cisco, 259 F. Supp. 2d 1004, 1010 (N.D. Cal. 2003).
Verizon was having trouble providing cellphone service
along a stretch of a busy street called Mequon Road. A
nearby church in an area zoned institutional, though largely
residential, was willing for a price that Verizon was willing
to pay to allow an antenna to be built in the church’s
backyard. The antenna would be 70 feet high and 9.5 inches
in diameter (originally it was to be both higher and thicker,
but its dimensions were changed in an unsuccessful bid to
make it more palatable to the planning commission). To
reduce its unsightliness, it would be disguised as a flagpole.
Nos. 03-1514, 03-1548 5
The planning commission hired a reputable telecommuni-
cations consulting firm to analyze the issue of availability of
service. The firm reported that the antenna would increase
Verizon’s coverage of the area along Mequon Road from 37
percent of the area to 95 percent. Two alternative locations,
one a high school and the other a country club, both of
which the planning commissioners preferred to the church’s
backyard, were analyzed but were adjudged unsuitable.
This was less because they would give Verizon coverage of
only 72 percent of the Mequon Road area than because their
proximity to other Verizon antennas would interfere with
the service provided from those antennas.
The fact that Verizon would be unable to cover 95 percent
of the area along the Mequon Road is not decisive evidence
that denial of the permit would impair cellphone service.
We do not know how many potential customers for such
service there are in the area (including commuters and other
transients as well as local residents), nor how many other
providers of cellphone service serve them and with what
quality of service and at what price. For all we know, the
impact of the denial of the permit sought by Verizon would
be negligible. But the only reason the planning commission
gave for attaching little weight to the interest of cellphone
users was that 72 percent coverage, while not 95 percent, is
good enough—and in so reasoning the commission over-
looked uncontradicted evidence that because of interference
the quality of service in the area of the 35 percent increase
in coverage (72 percent minus 37 percent) if the antenna
were placed in an alternative location would be degraded.
The City’s brief states that “the greater the interference, the
lower the coverage.” That is not true. You could have 100
percent coverage, but lousy service because of interference.
This concern seems not to have registered on the members
of the planning commission.
6 Nos. 03-1514, 03-1548
Against the impact on Verizon’s coverage the commission
set aesthetic considerations. But no evidence or reasoned
analysis can be found in the transcript of the commission’s
meetings, and except for the commission’s letter turning
down Verizon’s application on the ground that alternative
locations for its antenna were available (which is not
denied—the issue is how inferior they are), that transcript
is the only record of the basis for the commission’s decision.
We know that the church in the backyard of which Verizon
wants to put its antenna is located in an area in which
institutional land uses are permitted, though apparently
residential uses predominate; but that is all we know, except
the dimensions of the “flagpole” that Verizon wants to
build. We are not told the height of any of the structures in
the area, not even that of the church, which for all we know
is 70 feet high or higher. We are not told why a 70-foot
“light pole”—the disguise for the antenna that the commis-
sion suggested be used for the alternative site at the high
school—would be less unsightly than the flagpole in the
churchyard, or visible to fewer people.
The only “evidence” bearing on aesthetic considerations
was the testimony of three or four residents that they don’t
like poles in general; they didn’t say they would object to a
flagpole in the church’s backyard. If blanket opposition to
poles could count as sufficient evidence for denying an
application to build an antenna, the substantial-evidence
provision of the Telecommunications Act would be set at
naught. It is not sufficient evidence, as the cases make clear
by saying that “generalized” aesthetic concerns do not jus-
tify the denial of a permit. New Par v. City of Saginaw, 301
F.3d 390, 398 (6th Cir. 2002); Southwestern Bell Mobile
Systems, Inc. v. Todd, supra, 244 F.3d at 61; Omnipoint Corp.
v. Zoning Hearing Bd., 181 F.3d 403, 409 (3d Cir. 1999). Even
the commission seems not to have taken this “evidence”
seriously, for the City states in its brief that the planning
Nos. 03-1514, 03-1548 7
commission “did not base its denial [of Verizon’s permit
application] on local opposition to visual intrusion.”
Several commissioners expressed “slippery slope” fears.
They worried that if they approved Verizon’s application,
soon Mequon would be covered by a forest of telecommuni-
cations towers. Such fears are not completely groundless,
though “forest” grossly overstates what lies at the bottom of
the slippery slope. True, the more towers there are, the less
the measurable effect of another tower on the character of
the neighborhood—which may in any event have changed
in the direction of commercial uses as the result of previous
installation of towers. See VoiceStream Minneapolis, Inc. v. St.
Croix County, supra, 342 F.3d at 830; Second Generation
Properties, Ltd. v. Town of Pelham, 313 F.3d 620, 628 (1st Cir.
2002). But at the same time, the more towers there are, and
therefore the more comprehensive the cellphone service
available in Mequon, the weaker the argument for another
tower based on a claimed need for wider coverage or
greater competition. Sprint Spectrum L.P. v. Willoth, 176 F.3d
630, 643 (2d Cir. 1999); Metro PCS v. City & County of San
Francisco, supra, 259 F. Supp. 2d at 1010. There is no evi-
dence of how many telecommunications towers there are in
Mequon, however, and so the “slippery slope” argument
can’t get off the ground.
The commissioners invoked a preference for “collocation”
(also and more illuminatingly spelled “co-location”)—that
is, for placing a new antenna in an existing telecommunica-
tions tower or other structure of the requisite height and
capacity, such as a church steeple. Fair enough. But it is
undisputed that Verizon had no suitable collocation op-
portunity. And the preference for collocation comes into
play only when erecting an antenna in a new location is
objectionable because of unsightliness or some other factor,
and we have seen that there is no evidence that Verizon’s
8 Nos. 03-1514, 03-1548
proposed flagpole would if erected in the churchyard be
considered unsightly by the neighbors or have any other
adverse consequences.
It is doubtful that the planning commission’s decision can
be said to be supported by any evidence at all; certainly it
cannot be said to be supported by substantial evidence. That
is in contrast to our recent decision in the VoiceStream case,
which involved a proposed 185-foot communications tower
in one of the most scenic regions of Wisconsin.
Since the problem with the commission’s decision is not
that the evidence shows that it was wrong but that the
record contains insufficient evidence to have enabled the
commission to make a responsible decision, it might seem
that we should remand the case to the commission for
further evidentiary proceedings. But the City has not re-
quested such relief, and so the district court was right to
order that the permit be issued. For completeness we note
that both New Par v. City of Saginaw, supra, 301 F.3d at 399-
400, and Preferred Sites, LLC v. Troup County, supra, 296 F.3d
at 1220-22, together with cases cited in those two cases,
express skepticism about the appropriateness of remands to
local authorities, because of the delay in the final resolution
of the dispute that a remand would cause; we needn’t take
a position on the issue in this case.
We turn to the cross-appeal. Verizon based its suit not
only on the Telecommunications Act but also on 42 U.S.C.
§ 1983, which provides a federal civil remedy for the vio-
lation of federal rights, statutory as well as constitutional,
under color of state law. Which is an apt description of what
happened here: local officials violated a federal right of the
plaintiff. And the prevailing party in a section 1983 suit is
entitled by 42 U.S.C. § 1988, more or less as a matter of
course, to the attorneys’ fees reasonably expended by him
in the suit.
Nos. 03-1514, 03-1548 9
We can assume that the various requirements for a section
1983 case have been satisfied, such as that, in a case in
which the only defendant is a municipality rather than
individual officers or officials of the municipality, the act
challenged in the suit have been the act of the municipality
itself, that is, an act done at the policymaking level of the
municipal government or pursuant to a policy of that
government, Monell v. Department of Social Services, 436 U.S.
658, 690 (1978); Gernetzke v. Kenosha Unified School Dist. No.
1, 274 F.3d 464, 468-70 (7th Cir. 2001), since, as Monell held,
respondeat superior is not available in such suits. But we
agree with the district court that section 1983 remedies are
not available in a suit to enforce rights granted by the
Telecommunications Act. Nextel Partners Inc. v. Kingston
Township, 286 F.3d 687, 693-96 (3d Cir. 2002); National
Telecommunication Advisors, Inc. v. City of Chicopee, 16 F.
Supp. 2d 117, 121-23 (D. Mass. 1998).
The general rule in America (the “American” rule, as it
is known) is that the prevailing party, whether plaintiff
or defendant, is not entitled to an award of attorneys’ fees.
Verizon wants us to hold that any time Congress creates
a right that is enforceable against state or local officials
or agencies, section 1983, and its companion, section
1988, come in the door and the American rule goes out
the window. No such purpose can be attributed to
Congress. Section 1988 codifies the Civil Rights Attorney’s
Fees Awards Act of 1976, enacted in recognition that civil
rights suits normally pit individuals, often socially mar-
ginal, unpopular, and impecunious, against well-funded
public officers in cases whose social and political signifi-
cance may dwarf the monetary stakes, which may be mea-
ger. These circumstances argue for awarding attorneys’ fees
in such cases, especially to prevailing plaintiffs, and that tilt
has been ratified in the judicial interpretation of section
1983. The Telecommunications Act, in contrast to the federal
10 Nos. 03-1514, 03-1548
civil rights statutes, creates rights in telecommunications
enterprises, which are usually substantial corporations, such
as Verizon. They have the wherewithal to finance their own
litigation without the boost given by fee-shifting statutes,
and it would make no sense to carve an exception for cases
in which they find themselves opposed not by other large
corporations but by small towns, such as Mequon, popula-
tion 21,000, with a planning commission some of whose
members double as aldermen.
We acknowledge that the well-known “sea clammers”
case, which held that when a federal statute creates a com-
prehensive scheme of enforcement the courts are not to
supplement it with remedies drawn from other statutes,
Middlesex County Sewerage Authority v. National Sea Clammers
Association, 453 U.S. 1, 20 (1981); see Blessing v. Freestone, 520
U.S. 329, 346-48 (1997); Wright v. City of Roanoke Redevelop-
ment & Housing Authority, 479 U.S. 418, 423-29 (1987); Smith
v. Robinson, 468 U.S. 992, 1009-13 (1984), is distinguishable.
It is distinguishable because the Telecommunications Act is
silent on remedies beyond merely conferring a right to sue
to enforce the Act. However, such a conferral is presumed
to entitle a successful plaintiff to the usual remedies,
Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 66-76
(1992), which include damages as well as injunctive relief.
Aided by the presumption, the enforcement scheme of the
Telecommunications Act is complete (an entitlement to
attorneys’ fees not being a usual remedy under American
law), and therefore general remedial statutes, such as 42
U.S.C. § 1983, which drags section 1988 in its wake, should
not be fastened, barnacle-like, by judicial Diktat, to this new
federal statute that creates rights overlapped by the existing
remedial statutes. Otherwise when it enacts a new statute
Congress will have difficulty knowing what remedies the
courts will make available to the victims of statutory
violations. If the statute doesn’t specify any remedies, the
Nos. 03-1514, 03-1548 11
courts have to step in and make a guess as to what remedies
will best implement the statutory scheme, but there is no
need for that here. Nextel Partners Inc. v. Kingston Township,
supra, 286 F.3d at 693-96; National Telecommunication Advi-
sors, Inc. v. City of Chicopee, supra, 16 F. Supp. 2d at 121-23;
see also Boulahanis v. Board of Regents, 198 F.3d 633, 639-
41 (7th Cir. 1999); Mattoon v. City of Pittsfield, 980 F.2d 1, 5-6
(1st Cir. 1992).
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-18-03