Uscoc of Greater Missouri v. City of Ferguson, Mo.

• Decision Date: 09 October 2009
• Docket Number: No. 08-3705.,08-3705.
• Citation: 583 F.3d 1035
• Parties: USCOC OF GREATER MISSOURI, Appellant, v. CITY OF FERGUSON, MISSOURI, a Missouri political subdivision, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

583 F.3d 1035

USCOC OF GREATER MISSOURI, Appellant, v. CITY OF FERGUSON, MISSOURI, a Missouri political subdivision, Appellee.

No. 08-3705.

United States Court of Appeals, Eighth Circuit.

Submitted: September 21, 2009.

Filed: October 9, 2009.

Michael C. Seamands, argued, St. Louis, MO, for appellant.

Lori Ann Schmidt, argued, St. Louis, MO, for appellee.

Before MURPHY, JOHN R. GIBSON, and RILEY, Circuit Judges.

MURPHY, Circuit Judge.

USCOC of Greater Missouri commenced this action against the City of Ferguson, alleging that the City violated its rights under the Telecommunications Act (TCA), 47 U.S.C. § 332(c)(7), by failing to act on its applications for zoning variances and a special use permit within a reasonable period of time and by denying them without substantial evidence in a written record. The district court¹ granted the City's motion for summary judgment, and USCOC appeals. We affirm.

I.

USCOC is a subsidiary of United States Cellular Corporation and an FCC licensed wireless telecommunications service provider. Part of its business is to locate and develop sites for cell phone towers. In 2006 USCOC acquired a lease on a commercial parking lot in Ferguson, intending to construct a 105 foot wireless communications tower on the lot.

Ferguson's zoning code required USCOC to obtain a special use permit (SUP) from the City Council in order to construct the tower. See Ferguson, Missouri Zoning Code § 23.7 (2008) ["Code"]. The Code also establishes specific setback requirements for communications towers, two of which are particularly relevant here: a tower must be set back from the property boundaries at least one foot for each foot of its height, and no tower may be located within 200 feet of a residential structure. Id. § 23.7(2). Because of the small size of USCOC's lot, there was no way to build the proposed tower without violating these setback provisions. Thus, no SUP would issue unless USCOC obtained setback variances from Ferguson's Board of Adjustment.

After discussing the proposed tower with city officials in late 2006, USCOC formally applied for the SUP on April 9, 2007.² City staff reviewed the application and issued a report recommending that it be denied. The staff report emphasized that the tower would violate the Code's setback requirements and that its height and appearance would clash with the surrounding structures, all of which were one story tall. On June 20, 2007, the City's Plan Commission reviewed the application, as required by the Code, and voted unanimously to recommend that the City Council deny the SUP.

USCOC nonetheless planned to submit the application for approval at the City Council's July 24, 2007 meeting. On July 19, it applied to the Board of Adjustment for the variances necessary to cure the tower's violations of the setback requirements. Unbeknownst to USCOC, the Board had only three members at that time and thus lacked a quorum. See Code § 25.45. The Board was accordingly incapable of granting USCOC's variances until the mayor appointed a fourth member.³

At the City Council meeting, the Council received the staff report on USCOC's proposed tower, and the city manager explained the staff's reasons for recommending denial of the SUP. USCOC's attorney informed the Council that the company was aware of the setback violations and had applied for the necessary variances. He asked the Council to continue the hearing or grant the SUP subject to USCOC's subsequently obtaining the variances. The Council nevertheless proceeded to a decision, voting unanimously to deny the SUP. The decision was effectuated by a written resolution indicating that the reasons for denial included "the obvious violations" of the setback requirements, the lack of the required variances, and the Plan Commission's recommendation.

On August 21, 2007, USCOC commenced this action. It alleged that the Board's failure to act on its variance application amounted to a "constructive denial," and that the denials of the variances and the SUP violated the TCA, the Missouri and United States Constitutions, and Missouri law. One month later USCOC moved for summary judgment on the TCA claims. The district court denied this motion, finding that the Board's delay in acting on the variance application was not unreasonable under the TCA and that the City Council's denial of the SUP was in writing and supported by substantial evidence, in accordance with the statute.

On November 13, 2007, Ferguson's mayor appointed a fourth member to the Board of Adjustment, thus creating a quorum. The Board then held a hearing on USCOC's variance application on February 4, 2008 and voted unanimously to deny it. USCOC amended its complaint on March 7 and filed a second motion for summary judgment, this time claiming that the Board had violated the TCA by failing to issue a written decision within 30 days of its vote. The Board sent USCOC a written decision a few days later. The decision indicated that the Board had found no "unique characteristics" related to USCOC's property which would amount to the "unnecessary hardship or practical difficulties" required to justify a variance under state law and the City's Code. In addition, it stated that "the proposed variance [would] adversely affect adjacent property owners" and "violate the general spirit and intent of the Zoning Ordinance."

The district court denied USCOC's second motion for summary judgment. It concluded that the Board was not required under the TCA to issue a written decision within 30 days of its vote and that the decision otherwise satisfied the statute's "in writing" requirement. On the City's motion, the court also dismissed all claims not arising under the TCA. The parties then filed motions for summary judgment on the TCA claims. The district court again found that the City Council's denial of the SUP was proper and that the Board's denial of the variances was "in writing." It concluded that denial of the variances was also supported by substantial evidence and thus satisfied the TCA. Accordingly, the court granted the City's motion for summary judgment. USCOC filed a timely notice of appeal.

USCOC raises several issues on appeal. It argues that the district court erred in concluding that (1) the Board of Adjustment did not unreasonably delay in acting on its variance application; (2) the Board was not required to issue a written decision within thirty days of its vote to deny the variances; (3) the Board did not violate the TCA by failing to record a transcript of the variance hearing; and (4) the denials of both the SUP and variances were "supported by substantial evidence" as required by the TCA. We review the district court's grant of summary judgment de novo, construing all issues of material fact in the light most favorable to the nonmoving party. Level 3 Commc'ns, L.L.C. v. City of St. Louis, 477 F.3d 528, 533 (8th Cir.2007).

II.

USCOC's first argument on appeal is that the Board of Adjustment failed to act on its variance application within a reasonable period of time, as required by the TCA. We have no jurisdiction to decide this issue, as USCOC failed to preserve the claim in its notice of appeal.

Federal Rule of Appellate Procedure 3(c)(1)(B) provides that the notice of appeal must "designate the judgment, order, or part thereof being appealed." Rule 3(c) "is more than a mere technicality," and failure to comply with it "may create a jurisdictional bar to an appeal." ELCA Enters., Inc. v. Sisco Equip. Rental & Sales, Inc., 53 F.3d 186, 189 (8th Cir.1995). We construe notices of appeal liberally, but we only have jurisdiction when the appellant's intent to challenge a particular order or judgment is apparent and the adverse party will suffer no prejudice if review is permitted. Berdella v. Delo, 972 F.2d 204, 207 (8th Cir.1992).

The proceedings below involved three separate orders on motions for summary judgment. Although the district court's final order granted the City's motion for summary judgment on USCOC's two remaining claims, the notice of appeal specifically states that USCOC appeals from the order "granting Defendant's Motion for Summary Judgment on Count I." Such a specific notice evidences an intent to abandon other claims, not to appeal the court's previous orders. Indeed, we have held that "a notice which manifests an appeal from a specific district court order or decision precludes an appellant from challenging an order or decision that he or she failed to identify in the notice." Parkhill v. Minnesota Mut. Life. Ins. Co., 286 F.3d 1051, 1058 (8th Cir.2002).⁴

We therefore conclude that we have jurisdiction to review only the district court's order granting the City's motion for summary judgment on count I of USCOC's amended complaint. That count alleged that the City's denials of USCOC's SUP and variances were neither in writing nor supported by substantial evidence, as required by 47 U.S.C. § 332(c)(7)(B)(iii). We also may reach arguments addressed in the district court's earlier orders to the extent they relate to this claim. Even construed generously, however, USCOC's claim of unreasonable delay cannot be understood as relating to § 332(c)(7)(B)(iii). Rather, it properly arises under § 332(c)(7)(B)(ii), which requires local governments to "act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time."⁵ Accordingly, we have no jurisdiction to consider the claim for failing timely to act.

We turn, then, to the merits of USCOC's various arguments that the City's denials of its SUP and variances violated 47 U.S.C. § 332(c)(7)(B)(iii). This section of the TCA provides that any local government decision denying a request to construct a wireless communications facility "shall be in writing and supported by substantial evidence contained in a written record."

USCOC first argues that the Board of Adjustment violated the "in writing" requirement by...