Sprint Spectrum L.P. v. City of Carmel ( 2004 )


Menu:
  •                               In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    No. 03-2216
    SPRINT SPECTRUM L.P.,
    Plaintiff-Appellant,
    v.
    THE CITY OF CARMEL, INDIANA,
    THE BOARD OF ZONING APPEALS FOR
    THE CITY OF CARMEL AND CLAY TOWNSHIP,
    and MICHAEL P. HOLLIBAUGH, in his capacity as
    Director of the Department of Community Services,
    Carmel, Indiana,
    Defendants-Appellees.
    ____________
    Appeal from the United States District Court
    for the Southern District of Indiana, Indianapolis Division.
    No. IP 02-1133—John Daniel Tinder, Judge.
    ____________
    ARGUED DECEMBER 8, 2003—DECIDED MARCH 22, 2004
    ____________
    Before DIANE P. WOOD, EVANS and WILLIAMS, Circuit
    Judges.
    EVANS, Circuit Judge. One section of the historical
    Telecommunications Act of 1996 gives cellular telephone
    service providers the right to challenge local zoning deci-
    sions in federal court. 47 U.S.C. § 332(c)(7)(B)(v). While on
    its face a simple notion, “this statute fairly bristles with
    2                                               No. 03-2216
    potential issues . . . .” Cellular Tel. Co. v. Town of Oyster
    Bay, 
    166 F.3d 490
    , 494 (2nd Cir. 1999). Our case today
    concerns one of those issues—when is a land use decision a
    “final action” in order to create federal subject matter
    jurisdiction. Specifically, we must examine whether the Act
    modifies the traditional analysis, enunciated in Williamson
    County Regional Planning Commission v. Hamilton Bank,
    
    473 U.S. 172
    (1985), for determining when a complaint
    challenging a local land use decision is ripe for federal
    adjudication.
    In 2001, Sprint, a nationwide provider of wireless tele-
    phone services, sought to improve its service in the India-
    napolis area. In order to avoid the need to build its own
    antenna tower, Sprint entered into a lease with Dr. Edwin
    Zamber, a city of Carmel (Indiana) resident, to place an
    antenna on his property. Carmel is just a stone’s throw
    north of Indianapolis, and Zamber already had an existing
    135-foot-high ham radio tower on his property which met
    Sprint’s technical criteria.
    Sprint applied to Carmel’s Department of Community
    Services for an improvement location permit, which the city
    issued. The permit allowed Sprint to install special low-
    profile antennas on the sides of Zamber’s existing tower, as
    well as to construct a ground-level equipment shelter.
    Richard Deer, a neighboring property owner, took exception
    to the plan and appealed the issuance of the permit to the
    Carmel/Clay (Township) Board of Zoning Appeals (BZA).
    Deer alleged that the proposed Sprint antenna was not a
    permitted use for residential districts under the existing
    zoning ordinance and that a special use permit, or variance,
    was required before plans for the tower could proceed.
    Shortly after Sprint began constructing the antenna, the
    Carmel building commissioner issued a stop work order on
    the project, and Michael Hollibaugh, director of the Depart-
    ment of Community Services, sent Sprint a letter revoking
    No. 03-2216                                                3
    its permit. Hollibaugh stated that, because Sprint was
    installing an access road at the Zamber residence, there
    needed to be a subdivision and primary plat amendment in
    order to validate the new access easement, which had to be
    approved by another agency, the Plan Commission. Sprint
    appealed to the BZA, arguing that the local ordinances did
    not require subdivision plat approvals.
    The BZA initially dismissed Sprint’s subdivision appeal
    as untimely, a decision that was reversed by a state court.
    Subsequently, the BZA heard both Sprint’s subdivision ap-
    peal and the zoning appeal. After multiple public hearings,
    the BZA upheld Deer’s objection. It found that the “use for
    which the [improvement location permit] was granted (a
    commercial antenna and unstaffed, unoccupied commercial
    radio equipment shelter) is not a Permitted Use under the
    S-1 Residential District and related sections of the
    Camel/Clay Zoning Ordinance.” As a result, Sprint was
    required to seek a special use permit. Similarly, the BZA
    rejected Sprint’s subdivision appeal, holding that Sprint
    needed to seek subdivision plat approval from the Plan
    Commission.
    Sprint responded to this action with a complaint in fed-
    eral court seeking injunctive, declaratory, mandamus, and
    other relief. Among other claims, Sprint alleged violations
    of the Telecommunications Act, 47 U.S.C. § 332(c)(7)(B),
    arguing that the BZA’s decisions were not supported
    by substantial evidence and unreasonably discriminated
    against Sprint. Specifically, Sprint argued, the local zoning
    ordinances do not require it to seek a special use permit or
    subdivision plat approval. The district court granted the
    defendants’ Rule 12(b)(1) motion and dismissed the case for
    lack of subject matter jurisdiction. Relying on Williamson
    County, the court concluded that because Sprint could still
    apply for a special use permit, the BZA had not yet made a
    final decision and the case was not ripe for federal court
    4                                                 No. 03-2216
    review. Sprint appeals,1 arguing that the court’s reliance on
    Williamson County was misplaced, since the Act modified
    the relationship between local zoning boards and the
    federal courts.
    We review the court’s grant of the Rule 12(b)(1) motion de
    novo, accepting the complaint’s well-pleaded factual
    allegations as true and drawing reasonable inferences from
    those allegations in Sprint’s favor. However, “[w]e presume
    that federal courts lack jurisdiction ‘unless the contrary
    appears affirmatively from the record.’ ” Renne v. Geary, 
    501 U.S. 312
    , 316 (1991) (internal quotations marks and
    citations omitted). It is Sprint’s responsibility to clearly
    allege facts that invoke federal court jurisdiction.
    In Aegerter v. City of Delafield, Wis., 
    174 F.3d 886
    (7th
    Cir. 1999), we examined the relationship between state and
    local government’s traditional land use power and the
    Telecommunications Act:
    The Act empowers state and local governments to
    regulate the placement of facilities for personal wireless
    services, but their authority is not unfettered. They
    must now support any decision to deny certain requests
    for those facilities with a written opinion that is based
    on substantial evidence in a written record, and they
    may not “unreasonably discriminate among providers of
    functionally equivalent services.” See 47 U.S.C. §
    332(c)(7)(B)(iii) and (B)(i)(I).
    
    Id. at 887-88.
      To enforce these provisions, Congress provided that an
    action can be brought in “any court of competent juris-
    diction” by “[a]ny person adversely affected by any final
    1
    Sprint also raised claims under the Fifth and Fourteenth
    Amendments to the Constitution. It does not appeal the district
    court’s decision that those claims were not ripe.
    No. 03-2216                                                        5
    action or failure by a State or local government or any
    instrumentality thereof that is inconsistent with
    [§ 332(c)(7)] . . . .” 47 U.S.C. § 332(c)(7)(B)(v) (emphasis
    added). This case concerns whether the decisions by the
    BZA regarding Sprint’s efforts to construct an antenna
    constitute a “final action” within the meaning of that
    provision.2
    In interpreting the phrase “final action,” we emphasize
    that Congress does not write statutes in a vacuum. For one
    thing, it is guided by prior judicial decisions, and so it is
    well-recognized that “[t]he normal rule of statutory con-
    struction is that if Congress intends for legislation to
    change the interpretation of a judicially created concept, it
    makes that intent specific.” Midlantic Nat’l Bank v. N.J.
    Dep’t of E.P., 
    474 U.S. 494
    , 501 (1986) (internal citation
    omitted). See also Davis v. Michigan Dep’t of Treasury, 
    489 U.S. 803
    , 813 (1989) (“When Congress codifies a judicially
    defined concept, it is presumed, absent an express state-
    ment to the contrary, that Congress intended to adopt the
    interpretation placed on that concept by the courts.”).
    Therefore, prior to examining the Telecommunications Act,
    we begin with the traditional ripeness requirements for
    challenges to local land use decisions.
    It is well-established that the existence of a case and
    controversy is a prerequisite for the exercise of federal
    2
    Significantly, a BZA is the highest administrative authority
    under Indiana law to hear appeals of decisions under local zoning
    ordinances. Ind. Cod. § 35-7-4-918.1. Indiana law does, however,
    provide for review of BZA decisions through the issuance of a writ
    of certiorari by the circuit or superior court of the county in which
    the affected premises are located. Ind. Code § 36-7-4-1003. Sprint
    has not done so. However, the Telecommunications Act does not
    require the exhaustion of all state judicial remedies before
    bringing suit in federal court. See AT&T Wireless PCS, Inc. v.
    Town of Porter, 
    203 F. Supp. 2d 985
    , 989 (N.D. Ind. 2002).
    6                                                No. 03-2216
    judicial power under Article III. One important element of
    the “case” or “controversy” is satisfying the ripeness doc-
    trine, see Reno v. Catholic Soc. Servs., Inc., 
    509 U.S. 43
    , 57
    n.18 (1993) (stating that the doctrine derives from both
    Article III and from prudential reasons for refusing to
    exercise jurisdiction), which determines when a party may
    go to court. Ripeness is, essentially, a question of timing.
    See Reg’l Rail Reorganization Act Cases, 
    419 U.S. 102
    , 140
    (1974). The doctrine’s basic rationale “is to prevent the
    courts, through avoidance of premature adjudication, from
    entangling themselves in abstract disagreements over
    administrative policies, and also to protect the agencies
    from judicial interference until an administrative decision
    has been formalized and its effects felt in a concrete way by
    the challenging parties.” Abbott Labs. v. Gardner, 
    387 U.S. 136
    , 148-49 (1967).
    Based on these principles, the Supreme Court has
    adopted specific ripeness requirements for cases challenging
    land use decisions. As the Court held in Williamson County,
    zoning authorities must be given an opportunity to “arrive[
    ] at a final, definitive position regarding how it will apply
    the regulations at issue to the particular land in question”
    before its owner has a ripe challenge. Williamson 
    County, 473 U.S. at 191
    . The Court has further delineated what
    constitutes such a final decision. In Williamson County it
    held that the plaintiff’s taking and due process claims were
    not ripe because it did not seek a variance. 
    Id. at 193-94.
    In
    MacDonald, Sommer & Frates v. Yolo County, 
    477 U.S. 340
    ,
    351-52, the plaintiff’s taking claim was premature because,
    even though a planning commission rejected the plaintiff’s
    development plan, the plaintiff failed to submit less inten-
    sive plans. With these two cases, the Supreme Court
    “erected imposing barriers . . . to guard against the federal
    courts becoming the Grand Mufti of local zoning boards.”
    Hoehne v. County of San Benito, 
    870 F.2d 529
    , 532 (9th Cir.
    1989).
    No. 03-2216                                                  7
    Noticeably, with regard to challenges to land use deci-
    sions, “[t]his Circuit has read Williamson broadly . . . .”
    Forseth v. Village of Sussex, 
    199 F.3d 363
    , 370 (7th Cir.
    2000). The one significant exception involves “bona fide
    equal protection claims . . . .” 
    Id. However, to
    demonstrate
    an equal protection claim in the land use context, the claim
    must involve a fundamental right or suspect class, or the
    plaintiff must demonstrate “governmental action wholly
    impossible to relate to legitimate governmental objectives.”
    
    Id. at 371
    (internal citations omitted). For example, the
    claim must be based on “the malicious conduct of a govern-
    mental agent, in other words, conduct that evidences a
    ‘spiteful effort to “get” him for reasons wholly unrelated to
    any legitimate state objective[.]’ ” 
    Id. at 371
    (quoting Esmail
    v. Macrane, 
    53 F.3d 176
    , 180 (7th Cir. 1995)). Sprint does
    not fall within this limited exception to Williamson County.
    Cf. 
    Forseth, 199 F.3d at 371
    (president of the village board
    denied plaintiff’s equal protection under the law when he
    conditioned approval of development plan on his receipt of
    “significant personal pecuniary gain”).
    With this background, we turn to the Telecommunications
    Act. As we have just discussed, there is a specific ripeness
    doctrine for challenges to land use decisions, and we see no
    significant difference simply because Sprint’s claim arises
    from a statute rather than the Constitution. Therefore, in
    analyzing the Act we focus on those cases rather than more
    general ripeness standards, see, e.g., Abbott 
    Labs., 387 U.S. at 148
    , or requirements arising from other statutes, see,
    e.g., Bavido v. Apfel, 
    215 F.3d 743
    , 748 (7th Cir. 2000)
    (discussing exhaustion requirement in Privacy Act, 5 U.S.C.
    § 552(a)(g)(i ), relied on by Sprint). Nevertheless, Sprint
    argues that Williamson County should not be read into the
    Telecommunications Act. To do so, Sprint contends, “would
    create too many time-consuming procedural hurdles,” which
    would defeat the Act’s purpose—to encourage the “rapid
    deployment” of wireless communication. 47 U.S.C.
    8                                                 No. 03-2216
    § 309(j)(3)(A). Congress specifically enumerated this stated
    purpose in three provisions of the Act. First, the Act
    requires local authorities to act on requests to “place, con-
    struct, or modify personal wireless service facilities within
    a reasonable period of time . . . .” 47 U.S.C.
    § 332(c)(7)(B)(ii). Congress, moreover, enacted a 30-day
    limitations period in which personal wireless service pro-
    viders are to file claims under the Act after there has been
    final action. 
    Id. at §
    332(c)(7)(B)(v). Finally, Congress
    directed federal courts to hear such claims on “an expedited
    basis.” 
    Id. Based on
    these provisions, Sprint argues that the
    term “final action” under § 332(c)(7)(B) only requires that
    a service provider “obtain a definitive ruling from the local
    government solely on the issues presented to the local
    authorities.” We disagree. Examining both the language of
    the Act as well as its legislative history, we do not believe
    that Congress intended to modify the traditional standard
    for determining whether a land use dispute is ripe for
    federal adjudication.
    To begin, although creating a federal cause of action,
    Congress explicitly ensured that the Act would not intrude
    upon the traditional authority of local governments over
    land use matters. H.R. Conf. Rep. No. 104-458, at 207-08
    (1996), reprinted in 1996 U.S.C.C.A.N. 124, 222. As codified,
    § 332(c)(7) is entitled “Preservation of local zoning author-
    ity.” 47 U.S.C. § 332(c)(7). That section expressly states that
    “[e]xcept as provided in this paragraph, nothing in [the] Act
    shall limit or affect the authority of a State or local govern-
    ment or instrumentality thereof over decisions regarding
    the placement, construction, and modification of personal
    wireless service facilities.” 
    Id. at §
    332(c)(7)(A). Indeed, the
    history behind this provision is significant. As drafted in
    the House of Representatives, the Act would have allowed
    the FCC total federal preemption of state authority to
    regulate tower siting. H.R. Conf. Rep. No. 104-458, at 207
    (1996), reprinted in 1996 U.S.C.C.A.N. 124, 221-22. The
    No. 03-2216                                                9
    Conference Committee, however, rejected this approach,
    seeking to leave zoning authority in the hands of state and
    local governments. As the Conference Committee explained:
    “The conference agreement creates a new [§ 332(c)(7)] which
    prevents [FCC] preemption of local and State land use
    decisions and preserves the authority of State and local
    governments over zoning and land use matters except in
    the limited circumstances set forth in the conference
    agreement.” 
    Id. Other portions
    of the Act further buttress the conclusion
    that Congress did not intend to modify the traditional
    ripeness requirements for challenging local land use
    decisions. For example, under Williamson County a prop-
    erty owner must exhaust all available state remedies for
    compensation prior to bringing a taking claim to federal
    court. Williamson 
    County, 473 U.S. at 193-94
    . Congress,
    however, explicitly modified this requirement. As Congress
    noted, the term “final action” means “final administrative
    action at the State or local government level so that a party
    can commence action under the [Act] rather than waiting
    for the exhaustion of any independent State court remedy
    otherwise required. H.R. Conf. Rep. No. 104-458, at 9
    (1996), reprinted in 1996 U.S.C.C.A.N. 124, 223. See, e.g.,
    AT&T Wireless PCS, Inc. v. Town of Porter, 
    203 F. Supp. 2d 985
    , 989 (N.D. Ind. 2002); Laurence Wolf Capital Mgmt.
    Trust v. City of Ferndale, 
    176 F. Supp. 2d 725
    , 727 (E.D.
    Mich. 2000). This exercise clearly teaches that Congress
    was aware of Williamson County and knew how to modify
    its holding when that is what it wanted to do. Absent
    similar explicit language, in either the Act itself or its
    legislative history, we will not similarly presume that
    Congress intended to modify Supreme Court precedent with
    regard to when a challenge to a local land use decision is
    ripe for consideration in a federal court.
    Thus, since we hold that the Act did not modify the
    traditional analysis regarding whether a land use claim is
    10                                               No. 03-2216
    ripe, we analyze Sprint’s complaint under the standards
    enunciated in Williamson County. In doing so, we agree
    with the district court that Sprint’s complaint is not yet ripe
    for federal judicial review. The BZA’s decisions do not
    completely foreclose Sprint from establishing wireless
    telecommunications facilities at the Zamber site. In fact,
    those decisions merely map a procedural route that Sprint
    must take in order to proceed with its project. It must
    submit a plan to the commission and apply for a special use
    permit, neither one of which Sprint has done. Indeed, until
    Sprint is told definitely whether or not it is permitted to
    install an antenna and equipment shelter, it is mere
    speculation whether it even has an injury to complain of.
    See 13A C. Wright, A. Miller & E. Cooper, Federal Practice
    and Procedure: Jurisdiction 2d § 3532 (In gauging the
    fitness of the issues in a case for judicial resolution, courts
    are centrally concerned with “whether the case involves
    uncertain or contingent future events that may not occur as
    anticipated, or indeed may not occur at all.”). The possibil-
    ity remains that the city of Carmel will still approve
    Sprint’s project. As the Supreme Court has recognized, local
    zoning authorities are flexible institutions that may give
    back with one hand what they have taken with the other.
    
    MacDonald, 477 U.S. at 350
    . See also Suitum v. Tahoe Reg’l
    Planning Agency, 
    520 U.S. 725
    , 738 (1997) (Williamson
    County “responds to the high degree of discretion character-
    istically possessed by land-use boards in softening the
    strictures of the general regulations they administer.”). If
    that is indeed the outcome, there would be no case or
    controversy to adjudicate because the BZA’s action would be
    favorable to Sprint. Although Sprint at some point might
    have a mature claim, for now it must allow the local
    authorities to act with finality before pursuing a claim in
    federal court.
    This case epitomizes the rationale behind the ripeness
    doctrine. Sprint argues, for example, that it would be futile
    No. 03-2216                                               11
    to go back to the zoning board because it is not eligible for
    a special use permit or subdivision plat approval. These are
    precisely the types of issues that should be presented first
    to the local land use authority, which has a better under-
    standing of the local ordinances. Sprint contends, moreover,
    that returning to the zoning board prior to seeking litiga-
    tion would involve “impracticalities, time delays, expense
    and other inefficiencies.” Such harm is not, however,
    sufficiently strong to outweigh the unfitness for review
    embodied in the ripeness doctrine. See Ohio Forestry Ass’n,
    Inc. v. Sierra Club, 
    523 U.S. 726
    , 735 (1998) (“The ripeness
    doctrine reflects a judgment that the disadvantages of a
    premature review that may prove too abstract or unneces-
    sary ordinarily outweigh the additional costs . . . .”).
    Finally, Sprint contends that requiring it to apply for a
    variance would estop it from arguing in the future that it
    was entitled to the location improvement permit as a
    matter of right. Indiana courts, however, have not so held.
    See, e.g., Metropolitan Bd. of Zoning Appeals v. Avis, 
    575 N.E.2d 33
    , 37 (Ind. App. 1991) (party requesting zoning
    variance is not estopped from later arguing the variance
    was not necessary); Metropolitan Dev. Comm’n of Marion
    County v. Hari, 
    505 N.E.2d 116
    , 120 (Ind. App. 1987)
    (petitioners’ variance request did not preclude them from
    claiming in litigation that their properties came within the
    nonconforming use exception to the zoning ordinance).
    Furthermore, the City of Carmel concedes that Sprint has
    preserved its right to challenge the plat and the special use
    requirement.
    The judgment of the district court is AFFIRMED.
    12                                        No. 03-2216
    A true Copy:
    Teste:
    ________________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—3-22-04