Tennessee ex rel. Wireless Income v. Chattanooga

• Decision Date: 07 April 2005
• Docket Number: No. 03-6608.,03-6608.
• Citation: 403 F.3d 392
• Parties: State of TENNESSEE ex rel. WIRELESS INCOME PROPERTIES, LLC, Plaintiff-Appellant, v. CITY OF CHATTANOOGA and William C. McDonald, in his capacity as Administrator of Public Works, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

403 F.3d 392

State of TENNESSEE ex rel. WIRELESS INCOME PROPERTIES, LLC, Plaintiff-Appellant, v. CITY OF CHATTANOOGA and William C. McDonald, in his capacity as Administrator of Public Works, Defendants-Appellees.

No. 03-6608.

United States Court of Appeals, Sixth Circuit.

Argued: August 11, 2004.

Decided and Filed: April 7, 2005.

ARGUED:

James T. Williams, Miller & Martin, Chattanooga, Tennessee, for Appellants. Michael A. McMahan, Nelson, McMahan & Noblett, Chattanooga, Tennessee, for Appellees.

ON BRIEF:

James T. Williams, Miller & Martin, Chattanooga, Tennessee, Camden Ballard Scearce, Jr., Husch & Eppenberger, LLC, Chattanooga, Tennessee, for Appellants. Michael A. McMahan, Nelson, McMahan & Noblett, Chattanooga, Tennessee, for Appellees.

Before: SILER, MOORE, and COLE, Circuit Judges.

AMENDED OPINION

MOORE, Circuit Judge.

Plaintiff-Appellant Wireless Income Properties, LLC ("Wireless") appeals the decision of the district court, which granted in part and denied in part both its and Defendant-Appellee City of Chattanooga's ("City") respective motions for summary judgment. Wireless, a company engaged in the construction and management of telecommunications towers, filed applications with the City for permits to construct monopole communication towers. The City then called for a moratorium on the issuing of such permits to consider amendments to the pertinent zoning ordinances. After the moratorium was lifted, Wireless's applications no longer complied with the newly amended zoning ordinances. Wireless brought suit in federal court seeking mandamus relief requiring the City to issue the permits, and also asserting that the City had committed violations of the Telecommunications Act of 1996 ("TCA") and 42 U.S.C. § 1983. Both sides filed motions for summary judgment, which the district court granted in part and denied in part. Among other things, the district court ordered the City to act on the pending applications within sixty days of the judgment.

Wireless makes three arguments on appeal: (1) the district court erred when it ordered the City to act upon Wireless's permit applications within sixty days of the judgment; (2) the district court erred when it held that the City was not required to apply the zoning ordinances in effect at the time Wireless filed its applications for building permits; and (3) the district court erred when it held that a violation of the TCA does not give rise to a cause of action under 42 U.S.C. § 1983.

For the reasons explained below, we REVERSE the district court's sixty-day order; instead the district court should issue appropriate injunctive relief compelling the City to grant Wireless the requested permits. We AFFIRM the district court's dismissal of Wireless's § 1983 claims in light of the Supreme Court's recent decision in City of Rancho Palos Verdes v. Abrams, ___ U.S. ___, 125 S.Ct. 1453, ___ L.Ed.2d ___ (2005).

I. BACKGROUND

Wireless constructs, owns, and manages telecommunications towers in the Southeastern United States. Between December 14, 2001 and January 15, 2002, Wireless filed seven Land Disturbing Activity Permit Applications ("applications") with the Public Works Department of the City, seeking approval for the construction of monopole communication towers. At the time each application was filed, Wireless or the company's principal, G. Larry Wells ("Wells"), either owned or leased the underlying property, or had an agreement with the owner of the property to file the applications. In addition, the property underlying each application conformed to the particular zoning ordinances then in effect.¹

On January 15, 2002, the Chattanooga City Council ("City Council") passed a resolution which declared a moratorium on the issuance of building permits for communication towers in certain zones effective until March 13, 2002.² The purpose of the moratorium was "to allow [for] consideration of amendments to the provisions of the Zoning Ordinance for communication towers in [the cited] zones by the City Council," due to concern that the then-effective ordinances failed sufficiently to "protect the public welfare." Joint Appendix ("J.A.") at 112. A second resolution was passed on February 12, 2002, extending the moratorium until April 5, 2002.

On March 19, 2002, the City Council passed Ordinance No. 11253, which changed the standards for the location of communication towers. The changes were not to take effect until April 3, 2002. One of the changes was a new requirement mandating that all applications be approved by the Board of Appeals for Variances and Special Permits ("Variance Board").³ On March 26, 2002, the City Council passed another resolution setting April 3, 2002 as the termination date of the moratorium.

As a result of the amendments to the zoning ordinances, all of Wireless's applications were rendered defective in various ways such that they did not qualify for issuance of the permits. Wireless asserts that the City never served it with any type of written documentation signaling either the approval or denial of its applications. The City concedes that its only communication with Wireless regarding the allegedly now-inadequate applications was a telephone call on March 20, 2002, between Perry Mayo ("Mayo"), the city employee primarily responsible for processing applications, and Wireless. During this phone call, Mayo informed Wireless that the applications could not be approved absent a "special exceptions permit." Appellees' Br. at 4; J.A. at 104-05 (Mayo Dep. at 37-38). Mayo believed that the applications were therefore "on hold" at this point, and accordingly, took no further action. J.A. at 104-05 (Mayo Dep. at 37-38). Wireless never took the steps necessary to cure the defects in its applications by satisfying the new requirements and taking the applications before the Variance Board.⁴

On December 10, 2002, Wireless filed suit in federal court against the City and William C. McDonald in his capacity as Administrator of Public Works, seeking mandamus relief "requiring the City to issue the requested permits, and asserted [that] the City had engaged in certain violations of the TCA, violations of 42 U.S.C. § 1983 and violations of Wireless' substantive due process rights." Appellant's Br. at 3. On February 6, 2003, Wireless filed a motion for partial summary judgment on the basis of the City's violations of the TCA, and requested a writ of mandamus that would force the City to issue the requested permits. The City filed a cross-motion for summary judgment on June 30, 2003, asking the court to conclude that it had committed no violations of the TCA, and asking that Wireless's claims be dismissed.

On October 20, 2003, the district court issued an opinion, granting in part and denying in part both of the motions for summary judgment. The court found that the City's failure to act upon Wireless's filed applications constituted a violation of the TCA and ordered the City either to grant or to deny the applications within sixty days from the date of judgment. The court also denied Wireless's motion to the extent that it asked the court "to compel the City to apply zoning laws in effect before April 3, 2002." J.A. at 168 (D. Ct. Op. at 12). Finally, regarding Wireless's § 1983 claim, the district court, after lengthy analysis, concluded that a violation of the TCA did not give rise to a cause of action under § 1983. Accordingly, the court granted summary judgment in favor of the City on this issue. Wireless filed a timely notice of appeal on November 18, 2003 from the district court's final judgment.

II. ANALYSIS

A. Standard of Review

This court reviews a grant of summary judgment de novo. Walls v. Amerisure Mut. Ins. Co., 343 F.3d 881, 884 (6th Cir.2003). "Although the denial of a motion for summary judgment is usually an interlocutory order that is not immediately appealable, where `an appeal from a denial of summary judgment is presented in tandem with a grant of summary judgment, this court has jurisdiction to review the propriety of the district court's denial of summary judgment.'" Id. (quoting Hamad v. Woodcrest Condo. Ass'n, 328 F.3d 224, 235 (6th Cir.2003)). While the denial of a motion for summary judgment "on purely legal grounds" is reviewed de novo id., a denial based on the finding of a genuine issue of material fact is reviewed for an abuse of discretion. McMullen v. Meijer, Inc., 355 F.3d 485, 489 (6th Cir.2004). A grant of summary judgment is proper when, taking the facts in the light most favorable to the non-movant, there exists no genuine issue of material fact and "the moving party is entitled to a judgment as a matter of law." Walls, 343 F.3d at 884. Finally, the decision of a district court to grant injunctive relief is reviewed for abuse of discretion. United States v. City of Detroit, 329 F.3d 515, 520 (6th Cir.2003) (en banc); New Par v. City of Saginaw, 301 F.3d 390, 394 (6th Cir.2002).

B. Sixty-Day Order

On appeal Wireless contends that the district court erred when it ordered the City to either grant or deny Wireless's permit applications within sixty days. Specifically, Wireless contends that the proper remedy for the City's violations of the TCA would be to require the City to issue the requested permits. In response, the City contends that Wireless's claim is not ripe for review under the TCA. For the reasons set out below, we reject the City's ripeness claim and agree with Wireless that the district court erred in failing to require the City to issue the requested permits.

The TCA, codified at 47 U.S.C. § 332, provides in subsection (c)(7)(B) the following:

(ii) A State or local government or instrumentality thereof shall 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 with such government or instrumentality, taking into account the nature and scope of such request.

(iii) Any...