Sprint Spectrum v. City of Carmel, in

• Decision Date: 22 March 2004
• Docket Number: No. 03-2216.,03-2216.
• Citation: 361 F.3d 998
• Parties: 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.
• Court: U.S. Court of Appeals — Seventh Circuit

361 F.3d 998

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.

No. 03-2216.

United States Court of Appeals, Seventh Circuit.

Argued December 8, 2003.

Decided March 22, 2004.

W. Scott Porterfield (argued), Barack, Ferrazzano, Kirschbaum, Perlman & Nagelberg, Chicago, IL, for Plaintiff-Appellant.

Judy G. Hester (argued), Smyth, Hester & Grisham, Carmel, IN, for Defendants-Appellees.

Cathy Elliott, Bose, McKinney & Evans, Indianapolis, IN, for Intervenor-Appellee.

Before DIANE P. WOOD, EVANS and WILLIAMS, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

One section of the historical Telecommunications Act of 1996 gives cellular telephone service providers the right to challenge local zoning decisions in federal court. 47 U.S.C. § 332(c)(7)(B)(v). While on its face a simple notion, "this statute fairly bristles with 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, 105 S.Ct. 3108, 87 L.Ed.2d 126 (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 telephone services, sought to improve its service in the Indianapolis 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 Department of Community Services, sent Sprint a letter revoking 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 appeal 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 federal 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 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, 111 S.Ct. 2331, 115 L.Ed.2d 288 (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 jurisdiction" by "[a]ny person adversely affected by any final 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 construction 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, 106 S.Ct. 755, 88 L.Ed.2d 859 (1986) (internal citation omitted). See also Davis v. Michigan Dep't of Treasury, 489 U.S. 803, 813, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989) ("When Congress codifies a judicially defined concept, it is presumed, absent an express statement 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 judicial power under Article III. One important element of the "case" or "controversy" is satisfying the ripeness doctrine, see Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n. 18, 113 S.Ct. 2485, 125 L.Ed.2d 38 (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, 95 S.Ct. 335, 42 L.Ed.2d 320 (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, 87 S.Ct. 1507, 18 L.Ed.2d 681 (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, 105 S.Ct. 3108. 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, 105 S.Ct. 3108. In MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 351-52, 106 S.Ct. 2561, 91 L.Ed.2d 285, 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 intensive plans. With these two cases, the Supreme Court ...