Nextel Partners Inc. v. Kingston Tp.
| Decision Date | 11 April 2002 |
| Docket Number | No. 00-2502.,00-2502. |
| Citation | 286 F.3d 687 |
| Parties | NEXTEL PARTNERS INC., Appellant, v. KINGSTON TOWNSHIP William F. Anzalone; Tina M. Anzalone; Eric Wolfson; Stefanie Wolfson; Christopher L. Hackett; Ramah P. Hackett; Steven J. Kerzweil; Susan Z. Wilkinson; Robert J. Fiorelli; Joanne Fiorelli; Robert C. Riley; Sherry L. Riley; Harvey J. Reiser; Kathlyn M. Reiser; Joseph Allen Moore/Michael Corgan, t/a Woodbridge Associates, (Intervenors in D.C.). |
| Court | U.S. Court of Appeals — Third Circuit |
Appeal from the United States District Court for the Middle District of Pennsylvania, James M. Munley, J.
COPYRIGHT MATERIAL OMITTED
Christopher H. Schubert Michael J. Gavin (Argued), Riley, Riper, Hollin & Colagreco, Exton, PA, James C. Dalton Riley, Riper, Hollin & Colagreco, Paoli, PA, for Appellant.
Zygmunt R. Bialkowski, Jr. (Argued), Margolis Edelstein, Scranton, PA, for Appellee, Kingston Township.
Donald H. Brobst (Argued), Rosenn, Jenkins & Greenwald, LLP, William F. Anzalone, Anzalone Law Offices, Wilkes Barre, PA, for Appellees, William F. Anzalone et al.
Before BECKER, Chief Judge, ALITO and BARRY, Circuit Judges.
Nextel Partners, Inc. ("NPI"), a wireless telecommunications joint venture, wishes to construct a personal wireless communications tower on private property in Kingston Township, Pennsylvania. Unable to obtain variances, NPI entered into negotiations with the Township but never formally applied for a building permit. Instead, NPI filed this action in federal district court, asserting claims under a provision of the federal Telecommunications Act of 1996 ("TCA"), 47 U.S.C. § 332(c)(7)(B)(i), and 42 U.S.C. § 1983. The District Court dismissed, and we affirm.
NPI is participating in the creation of a national wireless network to provide "enhanced specialized mobile radio service," which integrates several different types of wireless service. See Appellant's Br. at 4-5. NPI determined that, in order to cover an area that includes segments of three major highways, it needed to build a 150 foot "monopole" tower and related facilities ("a telecommunications facility") on or near certain property that it leased from Daniel Voitek in Kingston Township. In July 1999, NPI submitted to the Kingston Township Zoning Hearing Board (ZHB) a "validity challenge" to the Kingston zoning ordinance. NPI alleged, among other things, that the ordinance violated the TCA. NPI claimed that, although the TCA provides that state and local laws "shall not prohibit or have the effect of prohibiting the provision of personal wireless services," 47 U.S.C. § 332(c)(7)(B)(i)1, the Kingston ordinance on its face did not allow wireless telecommunications facilities anywhere in the Township. In the alternative, NPI sought the issuance of use and dimensional variances and "such other interpretations, waivers and/or variances as may be required" to build the proposed facility. Appellant's App. at 41.
The ZHB conducted a hearing and issued a written decision on October 7, 1999. The ZHB agreed with NPI that the Township's ordinance did not permit wireless telecommunication facilities in any zoning district, and the ZHB recommended that the Township amend the ordinance. However, the ZHB denied NPI's application for a use variance. It concluded that the proposed site was "not a proper location for a monopole tower," "[g]iving due consideration to topography, adjoining uses and the public health and welfare." Appellee's App. at 39. The ZHB also observed that NPI had not proven that the property could not be developed in conformity with the provisions of the zoning ordinance or that denial of the use variance would result in an unnecessary hardship.
The TCA allows an aggrieved party to file an action in a court of competent jurisdiction within 30 days after a "final action or failure to act by a State or local government or any instrumentality thereof." 47 U.S.C. § 332(c)(7)(B)(v). NPI, however, did not file its TCA action in federal district court until 57 days after the ZHB denied its application. Instead, NPI first attempted to negotiate with the Township's Board of Supervisors and its Solicitor. Precisely what occurred during these discussions is disputed.
NPI alleges that, at a meeting on November 3, 1999, the Township conceded that its ordinance was invalid, promised to issue the permits necessary for the tower, and agreed to extend the deadline for filing an action to contest the ZHB decision. NPI states that, in reliance on this agreement with the Township, it withheld filing the complaint that it had planned to file on November 5 (within 30 days of the ZHB's October 7 decision). The Township, by contrast, denies that the parties ever reached a final settlement. According to the Township, the parties merely came to a general framework for a "tentative resolution," and no final agreement to issue a building permit was ever reached. Appellee's Br. at 7. The Township acknowledges, however, that it agreed to an extension of the time during which NPI could file an action in federal court contesting the decision of the ZHB. The Township's position is consistent with what is apparently the only document generated by the November 3 meeting: a letter dated November 4, 1999 from NPI's counsel to the Township's Solicitor. The letter described their agreement as a "general framework" and a "tentative resolution." Appellant's App. at 64. It confirms arrangements for NPI to pick up a permit application, but it does not indicate that the Township had promised to issue a building permit. NPI never filed a permit application.
On December 3, 1999, NPI filed this action in the United States District Court for the Middle District of Pennsylvania, naming both the ZHB and the Township as defendants and asserting both federal and state-law claims. After property owners intervened in the action, NPI filed an amended two-count complaint that named the Township as the sole defendant. Count I of the amended complaint asserted a claim directly under the TCA. Count I averred that the Township was violating the TCA because its ordinance had the effect of prohibiting the provision of personal wireless service. As relief, Count I sought a writ of mandamus and an injunction requiring the Township to permit construction of a telecommunications facility on the Voitek site, as well as damages and other relief. Count II asserted a similar TCA claim under 42 U.S.C. § 1983 and requested damages and attorney's fees.
While this action was pending before the District Court, the Township amended its ordinance in April 2000. On its face, the new ordinance allowed wireless telecommunications facilities to be built in the Township. In July 2000, the District Court dismissed NPI's action. The Court held that the claim asserted in Count I was barred because NPI had not commenced its action within 30 days after the ZHB denied its application. The Court held that the 30-day rule was "jurisdictional" and could not be extended. In addition, the Court opined that the April 2000 amendment of the ordinance had rendered Count I moot, and the Court stated that it would have dismissed this count as moot "even if the thirty-day limitations period had been satisfied." The Court dismissed Count II for failure to state a claim on which relief may be granted. The Court held that a federal TCA claim may not be asserted under § 1983. This appeal followed.2
On appeal, NPI argues that the claim advanced in Count I of its amended complaint was timely and that a TCA claim may be asserted under § 1983. We will address each of these arguments in turn.
Although the TCA recognizes that the states retain primary authority for land use regulation, the Act places certain specified restrictions on the regulation of personal wireless service. See 47 U.S.C. § 332(c)(7). The key provision says that state and local regulations may not either "unreasonably discriminate among providers of functionally equivalent services" or "prohibit or have the effect of prohibiting the provision of personal wireless services." 47 U.S.C. § 332(c)(7)(B)(i). State and local governments and instrumentalities are also enjoined to "act on any request for authorization to place, construct or modify personal wireless service facilities within a reasonable period of time after the request is duly filed ... taking into account the nature and scope of such request." 47 U.S.C. § 332(c)(7)(B)(ii). In addition, "any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with [47 U.S.C. § 332(7)(B)(7)] may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction." 47 U.S.C. § 332(c)(7)(B)(ii) (emphasis added).
In this case, as noted, the District Court dismissed Count I of NPI's amended complaint on the ground that NPI did not commence its action within 30 days after the decision of the ZHB. NPI maintains, however, that the District Court's holding was based on an erroneous understanding of the claim asserted in Count I. That claim, NPI states, was not based on the decision of the ZHB (which had been dropped as a defendant) but on the Township's continued failure to amend its ordinance, which was inconsistent with the TCA.3 NPI therefore argues that the 30-day limitations period in 47 U.S.C. § 332(c)(7)(B)(ii) did not begin to run until the Township amended its ordinance on April 12, 2000. See Appellant's Br. at 16. It is apparently NPI's position that during the entire period up to April 12, 2000, the Township was continuously engaged in a "failure to act ... that was inconsistent with [47 U.S.C. § 332(c)(7)(B)]." 47 U.S.C. § 33(c)(7)(B)(v).
Read generously, Count I of the amended complaint may assert two separate TCA claims. The first — and plainly the chief — claim is that the Township violated...
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