HomeMy WebLinkAboutNo. 03-2216 Brief of Defendants-Appellees
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No. 03-2216
UNlrED.STATESCOURT OF APPEALS
..FO~~jS.~ CIRCUIT
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SplUN'f SPEr;tRUM L.P.~i-"1~\. \\~'.
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PlaiJi,ltiff,Appellant, ,
v.
THE CITY OF CARMEL, INPIANA, .
THE SOARD. OF ZONING APPEALS FOR,
1HB:CITY OF C~ANPCLA Y TOWNSHIP,
and MICHAiL P. HOLLlBAYOH,. in his 'capacity as,
Director of the. Oepartntent of Community Services, Cannel,. Indiana,
. .
." "
. Def.~ts-AppeUees; .
APP~ ,from thelJnitedStates District Court
For the Soutl1~tn District of Indiana
Case'No.: IP 02..1133
, The Honorable John D. Tinder,
BRIEF OF DEFENDANTS-APPELLE13S~
THE 'CITY OF CARMBL,INDI~A~
THE BOARD OF ZONING APPEALS' FOR
'.' mECI'fY OF CARMEL,. AND CLAY TOWNSHIP, ,
and Ml<:;;HAELP.. HOIJ..JBAUGH, lams capacity as
, Director of the Departn1ent ofCommunitt Services, Cannel, Indiana
SudyG. Hester, Esq.
" Smyth Hester & Grisham, LLP.
. . 11550 N. Meridian St., Suite. 125
Cannel, IN 46032
Telephone: (317) 843..5566
Facsimile: (311) 843..5369
John R. Molitor, Esq;
, 9465 Counselor's Rowe
Suite 200
Indianapolis, IN 46240
Telephone: (317) 843..5511
Facsimile: (317)843-1)43
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Disclosure Statement
Page 1 of 1
(-0
CIRCUIT RULE 26 1 D SCLOSURE ST
Appellate Court No: O~2216
Short Caption:
Spii.!t
L.P. v. Cit of Cannel
To enable the judges to detennine whether recusal is necessary or appropriate, an atto
amicus curiae, or a private attorney representing a government party, must furnish a disc
following infonnation in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1 .
The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must
be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever
occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required infonnation.
The text of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required
to complete the entire statement and to use N/A for any information that is not applicable if this form is used.
(I) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the
corporate disclosure infonnation required by Fed. R. App. P. 26.1 by completing the item #3):
Ci tv of Carmel, Indiana
The Board of . Zoning Appeals for the City of Cannel and Clay Township
Michael P. Hollibaugh .
(2) The names of all law finns whose partners or associates have appeared for the party in the case (including proceedings in
the district court or before an administrative agency) or are expected to appear for the party in this court:
Smyth Hester & Grisham, LLP (counsel of record)
John R. Molitor
(3) If the party or amicus is a corporation:
i) Identify all its parent corporations, if any; and
ii) list any publicly held company that owns 10% or more of the party's or amicus' stock:
Date:
10 -tf-~3
Attorney's Signa
Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3( d). Y es~ No _'
Address: 11550 N. Meridian st., Ste 125
Carmel, IN 46032
Phone Number: (317) 843-5566
E-Mail Address:judy@shglaw.net
Fax Number: ( 317) 843-5369
rev.lt/Ot AK
http://www.ca7.uscourts.gov/fonns/disstat.htm
6/4/2003
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TABLE OF CONTENTS
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . '. . . . . . . . . . . . . . . . . . .. ii
JURISDICITIONAL STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1
ISSUE PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. ............... 1
STATEMENT OF THE CASE. .... .. . . . . ... . .. . .. .... . . ... . . .. .. . . .. 2
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3
STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 6
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 7
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 8
A. The TCA Claims Were Properly Dismissed For Lack of
Subject Matter Jurisdiction Because There Has Not Been A
Final Action Under Williamson Countv. . .. .... .. . ... . . . 8
B. Indiana State Law Does Not Affect The Federal Court's
Determination That There Is No Final Action For Purposes of
The TeA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
C. Sprint's Emphasis on the TCA's Rapid Deployment Element
Cannot Override the Conventional Zoning Ordinance
Procedures and the Ripeness Requirements of the Federal
Courts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 14
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 15
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TABLE OF AUTHORITIES
Cases
Aegerter v. City of Delatield. 174 F.3d 886 (7th Cir. 1999)...........................9
Bieter Co. v. Blomquist. 987 F.2d 1319 (8th Cir. 1993)............................ .....8
Board of Zoning ADDeals v. Hyde, 160 Ind. App. 165,310 N.E.2d 908 (1974)....13
Children's Home of Southeastern Indiana. Inc. v. Area Planning Comm'n of Franklin
County. 486 N.E.2d 1048 (Ind. App.1985)...............................................12
Cohen v. TownshiD ofCheltenham. 174 F.Supp.2d 307 (E.D. Penn. 2001)..........8
Forseth v. Village of Sussex ,199 F.3d 363 (7th Cir. 2000).............................8
Kontosv. United States Dep't of Labor, 826 F.2d 573 (7th Cir. 1987).................6
Metropolitan Bd. of Zoning ADDeals v. Avis, 575 N.E.2d 33 (Ind. App. 1991).....13
Metropolitan Dev. Com'n of Marion County v. Hair, 505 N.E.2d 116
(Ind. App. 1987)............................................................................. .13
Nasierowski Bros. mv. Co. v. City of Sterling Heights. 949 F.2d 890
(6th Cir. 1991)..................................................................................8
Oliver v.Trunkline Gas Co., 789 F.2d 341 (5th Cir. 1986).
.................................................6
Omnipoint Comm.. Inc. v. Zonine: Hearing Bd. OfE. Pennsboro TownshiD,
4 F. Supp.2d 366 (M.D. Penn 1998). .......................................................8
Roman v. United States Postal Serv., 821 F.2d 382 (7th Cir. 1987).
.......................................5
Theta KaDDa. Inc. v. City of Terre Haute. 141 Ind. App. 165,
228 N.E.2d 34 (1967).....................:................................................. ..13
Transit EXD.. Inc. v. Ettinger, 246 F.3d 1018 (7th Cir. 2001)....... ..... ... .......... .....5
Triple G Landfills. Inc. v. Bd. OfComm'rs of Fountain Co!. Indiana.
977 F .2d 287 (7th Cir. 1992)....................................................................8
Williamson County ResPonal Planning Comm'n v. Hamilton Bank of Johnson City,
473 U.S. 172 (1985) ...........................,.............................................6-11
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TABLE OF AUTHORITIES - CONT.
Constitutional Amendments
Fifth Amendment... ....... . .... ... ............ ...... .. ........ . .. ... .. ........ .... . . .... ..... .1
Fourteenth Amendment.................................................................... ...1
Statutes
Telecommunications Act of 1996 ..........................................................1
Declaratory Judgment Act. . . . . .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...1
Indiana Code ~36-7-4-1003..................................................................1
Rules
Fed. R. Civ. P. 12 (b) (1) ..................................................................5,15
Zoning Ordinances for the City of Carmel/Clay Township
Section 5.2........... .......... ....... ........... ...... ........... ...... ... .... .......... ....4,15
Section 25.13.4............................................................................. .4,15
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JURISDICTIONAL STATEMENT
The jurisdictional summary in the brief of Sprint Spectrum L.P. ("Sprint") is not
complete and correct. Sprint's complaint alleged claims under the Telecommunications
Act of 1996 ("TCA"), the Fifth and Fourteenth Amendments to the U.S. Constitution, the
Declaratory Judgment Act, the Indiana Constitution, and Indiana Code ~36-7-4-1003.
The District Court dismissed all of Sprint's federal claims for lack of subject
matter jurisdiction because the issues were not ripe. On March 28, 2003, the District
Court issued its Judgment on the Motions to Dismiss filed by the Defendants City of
Carmel, Indiana, the Board of Zoning Appeals of the City of Carmel and Clay Township,
Indiana (the "BZA"), and Michael P. Hollibaugh, in his capacity as Director of the
Department of Community Services, Carmel, Indiana (the "Director") (jointly referred to
hereinafter as the "City"), as well as by the Intervenor Richard Deerl. Having dismissed
Sprint's federal claims, the District court also dismissed Sprint's Indiana state claims for
lack of jurisdiction.
The Court lacks subject matter jurisdiction over the federal claims because there
was no final administrative decision as required by the TCA and no real controversy as
required by the Declaratory Judgment Act? With lack of subject matter jurisdiction over
the federal claims, the Court lacks jurisdiction over the pendent state claims.
ISSUE PRESENTED
Whether the District Court properly dismissed Sprint's claims for lack of subject
matter jurisdiction where there has not yet been a fmal action by the City?
1 The Intervenor is not participating in this appeal.
2 Sprint does not appeal the District Court's decision that their claims under the Fifth and
Fourteenth Amendments to the U.S. Constitution were not ripe (Sprint's Brief, footnote 12).
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STATEMENT OF THE CASE
This appeal arises from the District Court's dismissal of Sprint's complaint for
lack of subject matter jurisdiction. The underlying lawsuit concerns the desires of Sprint
to attach a wireless-service antenna to an existing HAM radio structure on a residential
home site ("Zamber Residence") and install maintenance facilities in furtherance of its
communication services business. There has been no final decision by the BZA as to
Sprint's ability to locate the wireless-service antenna and build the accessory
maintenance facilities at the Zamber Residence. The application is still in the midst of
the approval process, the City having simply advised Sprint that it should apply for a
special use permit and for a primary plat amendment in order for a location improvement
permit to be properly issued for this proposed use on the Zamber Residence.
The applications for a special use and primary plat amendment would require a
public hearing, notice to the neighboring homeowners regarding the public hearing, an
opportunity for the homeowners to be heard, and public deliberations by the BZA as to
whether the proposed use meets the Ordinance standards, has any negative effect on the
adjacent properties, and complies with the Comprehensive Plan. Rather than follow the
established zoning procedures, Sprint filed its complaint in hopes that the federal court
would rule on these issues mid-stream and in place of the local government officials.
Sprint's failure to obtain a land use decision by the City and bring a ripe claim before this
Court deprives the Court of subject matter jurisdiction.
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STATEMENT OF FACTS
Sprint submitted an application for an improvement location permit and building
plans with the Department of Community Services ("the Department") on May 7, 2001
(Stipulations, Docket #50, ~ 38). 3 Sprint sought to use an existing HAM radio structure
located on the Zamber Residence for one of its wireless-service antennas (Complaint, ~
17, A-35), and to build an ''unstaffed, unoccupied radio equipment shelter" as an
"accessory building" (Stipulations, Docket #50, ~ 41). The Department approved the
application and issued the permit (Complaint, ~ 22, A-37).
After Sprint began constructing a maintenance building and installing an access
road across the Zamber residential lot, a neighbor to the Zamber Residence filed an
appeal to the permit ("Deer Appeal"), asserting that the proposed use was not
contemplated under the permitted uses for the Ordinance (Complaint, ~ 25, A-37). The
Deer Appeal further asserted that changing and expanding the use of the non-conforming
structure (based upon its height) from a residential HAM radio structure to commercial
wireless-service cell tower converted the use into an illegal non-conforming use (June 24,
2002 Minutes, attached as Exhibit 1 to City's Reply Memorandum in Support of Motion
to Dismiss, Docket # 39, p. 10).
At approximately the same time as it received the Deer Appeal, the Department
recognized that Sprint was installing an access road at the Zamber Residence and realized
that there should be a subdivision and primary plat amendment in order to validate the
new access easement (Stipulations, Docket #50, ~ 48). The Director revoked the permit
3 Cites to the Appendix appear as "A_"; cites to the record provide the docket number of the
document and the relevant page and/or paragraph.
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on August 23, 2001, asking Sprint to submit a primary plat amendment for the Plan
Commission to consider (Complaint, ~27, A-37).
Sprint appealed the Director's decision to the BZA ("Sprint Appeal") on Monday,
September 24, 2oe3)32 days after the decision and the BZA dismissed the appeal as
untimely (Complaint, ~30, A-38). Sprint filed suit in the Hamilton County Circuit Court
to appeal the dismissal (Complaint, ~35, A-39). The Circuit Court ruled on June 18,
2002, that the BZA should have interpreted its filing deadline rules in accordance with
state court trial rules (Complaint, ~36, A-39; Opinion, as Exhibit C to the Complaint,
Docket #1). It held that Sprint's appeal of the Director's decision was filed in a timely
manner since the 30th day of appeal period fell on a weekend ag.).
The Deer Appeal had been tabled until the Circuit Court ruled on the timeliness of
Sprint's appeal of the permit revocation (Complaint, ~31, A-38). The BZA then heard
the Deer Appeal six days later on June 24,2002 (Complaint, W39-40, A-40). The BZA
granted the appeal, staying all work and finding that Sprint should have applied for a
Special Use permit from the BZA prior to receiving a location improvement permit
(Complaint, ~41, A-40; June 24,2002 Minutes, Docket #39, pp. 9_13).4
4 The provisions for a special use in the Cannel/Clay Zoningtprdinance ("Zoning
Ordinance"), begin with Section 5.2, which provides that a Special Use is required for Antenna
that are "visually integrated with or camouflaged on or within a structure other than a tower (such
as a chimney stack, church spire, light standard, monument, power line support device, or water
tower)" (Docket #50, '33). For the HAM Radio structure to be a "tower," the structure must be
taller than fifteen (15) feet (Stipulations, Docket #50, , 19) and intended primarily for mounting
an antenna (City's Response to Sprint's Motion for Partial Summary Judgment, Docket #73, pp.
17-18). However, the definition of antenna specifically excludes an amateur radio station antenna
(Docket #50, , 27), leading to the conclusion that the HAM Radio structure is not a tower for
purposes of the Zoning Ordinance and a special use is required.
Because the HAM Radio structure is a non-conforming structure, based upon its height
(Stipulations, Docket #50,' 18), Section 25.13.4 of the Zoning Ordinance also requires a special
use or special exception if the use or the height of the structure is substantially altered
(Stipulations, Docket #50, '36). At the time of the Deer Appeal, the HAM Radio structure at the
Zamber Residence was being used for HAM radio purposes under a valid HAM radio license
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The BZA then heard the Sprint Appeal on July 22,2002 (Complaint, ~38, A-40).
The BZA upheld the Director's decision to revoke the permit, ruling that Sprint was
required to subdivide the property based upon the creation of an access road and a leased
parcel (ld.). Rather than applying for a special use from the BZA or submitting a primary
plat application to the Plan Commission, Sprint filed their lawsuit with this Court the
following day (Complaint, A-31). The City ultimately filed a motion to dismiss for lack
of subject matter jurisdiction because the matter was not ripe; the BZA had not even been
allowed to make a land use decision on Sprint's requests. The Court granted the motion
because there had not been an administrative decision that fully disposed of Sprint's
attempt to "place, construct or modify personal wireless service facilities" (Opinion, A-
12). Sprint appealed the District Court decision to the Seventh Circuit.
STANDARD OF REVIEW
The Seventh Circuit reviews de novo the District Court's dismissal for lack of subject
matter jurisdiction under Fed. R. Civ. P. 12 (b) (1). Transit Exp.. Inc. v. Ettinger, 246
F.3d 1018, 1023 (7th Cir. 2001). It is proper for the court to look beyond the
jurisdictional allegations to examine any evidence submitted to determine if subject
matter jurisdiction in fact exists. Roman v. United States Postal Serv., 821 F.2d 382,385
(7th Cir. 1987).
(Stipulations, Docket #50, , 17). Sprint's application for the improvement location permit stated
that Sprint would be using the structure as a "wireless telecommunications service provider of
wireless telephone and other communications services in a national network using Personal
Communications Services (''PeS'') technology" (Stipulations, Docket #50, , 6). The BZA found
that the use of the non-conforming HAM Radio structure was being substantially altered and that
a special use would be required (Stipulations, Docket #50, , 37).
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The party seeking to invoke a district court's jurisdiction bears the burden of
establishing the basis for exercising such jurisdiction. Kontosv. United States Dep't of
Labor, 826 F.2d 573,576 (7th Cir. 1987). It is presumed that a federal court lacks
jurisdiction until it has been demonstrated that jurisdiction over the subject matter exists.
Oliver v.Trunldine Gas Co., 789 F.2d 341 (5th Cir. 1986).
SUMMARY OF ARGUMENT
With regard to the federal claims from which Sprint appeals, the TCA and
Declaratory Judgment claims, the District Court ruled that it lacked subject matter
jurisdiction because there was no fmal decision by the City on the use of the land. The
City held public meetings regarding the revocation of a permit, but it has not yet had the
opportunity to hold public hearing with required notice to the adjacent homeowners on
the merits of whether the HAM Radio structure could be used to justify the collocation of
wireless telecommunications antenn@ and the installation of maintenance facilities.
Under the City's Ordinance, the BZA would be required to hear public testimony as to
whether the proposed use meets the Ordinance standards, whether they would have any
negative effect on the adjacent properties, and whether the proposed use would comply
with the Comprehensive Plan. The City advised Sprint that it would consider these issues
in the context of a special use application and primary plat amendment.
Sprint attacks the District Court's decision with various arguments that the "fmal
action" analysis and exhaustion requirements employed by the court from. Williamson
County Ree:ional Plannine: Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172,
186-94 (1985), should not apply to this case, and that requiring Sprint's claim to be ripe
contravenes the "rapid deployment" policy of the TCA. The facts in Williamson County
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zoning case are strongly analogous to the case at bar, and its application here is consistent
with the federal court's policy of reducing the workload of the federal courts and
preserving the integrity and autonomy of the local administrative process. As soundly
recognized by the District Court, the "final action" requirement listed in the TCA "should
be reserved to include those administrative decisi~which fully dispose of a party's
attempt to place, construct or modify personal wireless service facilities so that state
courts are left with the task of scrutinizing the local zoning laws. Otherwise, federal
courts would be involved in zoning disputes before the ultimate question of the plaintiff's
ability to develop his property has been settled."
Major delays in the rapid deployment of new telecommunications technologies
here include Sprint's decision to appeal the Director's decision in 2001 after 30 calendar
days had elapsed, the state court litigation that Sprint then initiated, and Sprint's decision
to pursue the current litigation in the federal courts rather than proceed with the special
use application and primary plat ~nt that would have advanced its application
with the City. The District Court's decision to dismiss the action for lack of subject
matter jurisdiction was well reasoned and based upon applicable case law. It should be
upheld.
ARGUMENT
A. The TCA Claims Were Properly Dismissed For Lack of
Subject Matter Jurisdiction Because There Has Not Been A
Final Action Under Williamson County.
Sprint maintains that the BZA' s decisions that the 10 ation i
improperly issued and properly revoked, pending a special use application and primary
plat, were "final actions." The District Court disagreed with Sprint's position because the
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BZA's decisions did not settle ''the ultimate question" of Sprint's "ability to develop [the]
property" (A-12). The District Court relied upon the Supreme Court's reasoning in an
analogous zoning case, Williamson County. 473 U.S. at 186-94 (takings claim not ripe
because, inter alia, respondent's failure to petition board of zoning appeals for variance
meant that no final administrative decision had been taken with respect to respondent's
ability to develop its land).
Sprint argues to this Court that Williamson County should only be applied to
regulatory taking actions and not to its TCA claims. It supports this argument by citing
to courts that have refused to apply Williamson County in cases that are distinctly
different from the case at bar, including a RICO action,s an equal protection claim,6 a
procedural due process claim, 7 a constitutional attack on an ordinance,8 and a Fair
Housing Act claim9 (Sprint's Brief at 19-21). Significantly, Sprint points out that
Williamson County has been applied to TCA claims by the court in OmniDoint Comm..
5 Bieter Co. v. Blomquist 987 F.2d 1319 (8th Cir. 1993) (Trial court should have used the
requirement of commercial or competitive injury normally applied in RICO cases, rather than
importing a standing requirement from regulatory taking cases).
6 Forseth v. Villae:e of Sussex .199 F.3d 363,370-71 (7 Cir. 2000)(applying Williamson County
ripeness test to takings claim, substantive due process claim, and procedural due process claim,
but declining to use it on a bona fide equal protection claim where government agent maliciously
conditioned approval of plat on conveyance of buffer strip to a private party and failed to prevent
storm water run-off onto the property).
7 Nasierowski Bros. Inv. Co. v. City of Sterline: Heie:hts. 949 F.2d 890 (6th Cir. 1991) (court
considered injury of being refused the opportunity to be heard and ruled that injury "stemming
from the deprivation of procedural due process was immediately sustained and concretely felt,
notwithstanding the absence of a 'final' decision from the City concerning the appropriate
development of the property").
8 Trinle G Landfills. Inc. v. Bd. Of Comm'rs of Fountain Co!. Indiana. 977 F.2d 287,289 (7th
Cir. 1992) (No ripeness required where lawsuit mounts a facial attack upon the validity of an
ordinance itself that would essentially ban landfill development county-wide, not a challenge to a
particular administrative decision reached thereunder, and poses purely legal issues).
9 Cohen v. Townshin of Cheltenham. 174 F.Supp.2d 307,320 (B.D. Penn. 2001) (declining to
use the ripeness test in Williamson because in FIllIA cases, "a violation occurs when the disabled
resident is first denied a reasonable accommodation, irrespective of the remedies granted in
subsequent proceedings").
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Inc. v. Zoning: Hearing Bd. Of E. Pennsboro Township. 4 F. Supp.2d 366, 371 (M.D.
Penn 1998).
The District Court apparently foresaw Sprint's argument that Williamson County
should not apply to TCA claims and addressed this argument in its opinion. The District
ruled that Williamson County's deferral of access to the federal court until "all
reasonably available administrative paths [had] been exhausted" not only preserves the
"autonomy of local authorities to administer and interpret their own zoning laws, but is
also in accordance with the Seventh Circuit's statement of Congress' purpose in passing
the TCA:
Some may disagree with Congress' decision to leave so much authority in
the hands of state and local governments to affect the placement of the
physical . infrastructure of an important part of the natiov
telecommunications network. But that is what it did when it passed the
Telecommunications Act of 1996, and it is not our job to second-guess
that political decision.
(A-lO, citing Aee:erter v. City of Del afield. 174 F.3d 886,892 (7th Cir. 1999)).
In Williamson County, a developer had received preliminary approval for a proposed
plat, but the approval was rescinded by the planning commission for the developer's
failure to satisfy certain requirements in a new ordinance. The developer failed to apply
for the available variances, but appealed the commission's rescission to the zoning board
instead. The zoning board instructed the commission to consider the matter under the old
ordinance. The commission refused and the developer brought suit in federal court. The
Court found that the developer had failed to obtain "a final decision regarding how it
[would] be allowed to develop the property," and failed to ascertain whether the State
would provide just compensation for the alleged taking. 473 U.S. at 186-94.
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The facts in this case parallel the facts in Williamson County. Where the developer in
Williamson County had submitted a plat application, Sprint Spectrum submitted an
application for a lo~t permit. The Williamson County rescission noted
the need for a variance application and the revocation notice here set forth the need for a
primary plat application. The Williamson County developer failed. to apply for a
variance, but only appealed the decision to rescind the approval. Sprint Spectrum failed
to apply for a primary plat, but only appealed the decision to revoke the permit. Sprint
Spectrum subsequently failed to apply for a special use
The Williamson County court explained, "The developer was only required to obtain
a final decision from the commission, and until the developer was told definitely whether
the obstacles to the plat would be ignored (i.e., whether the commission would grant one
or more variances), the developer did not have a final decision from the relevant decision
maker." Sprint Spectrum does not have a final decision from the relevant decision
makers because it has not submitted the special use application to the BZA or the primary
plat application to the Plan Commission. The zoning entities will have the opportunity to
make final determinations once the submission are made by Sprint Spectrum.
The application of the Supreme Court's decision in Williamson County to the case at bar
and Sprint's TCA claims is proper and well reasoned. There has been no ftnal action
with regard to the proposed land use and the Court lacks subject matter jurisdiction over
the premature claims.
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B. Indiana State Law Does Not Affect The Federal Court's
Determination That There Is No Final Action For Purposes
of The TCA.
Although Sprint chose the federal courts in which to bring its complaint, it argued
to the District Court and continues to suggest to the Seventh Circuit that Indiana case law
and ordinance provisions govern whether there has been a "final action" for pwposes of
the TCA (Sprint's Brief, pp. 10-13). The District Court observed that even procedural
issues at the board of zoning appeal level may be reviewable by certiorari to the state
courts because "a state may want to entrust its own courts with closer scrutiny over the
administration and interpretation of local zoning laws than Congress would have wished
to commit to the federal courts over such laws" (A-12). For pwposes of the TCA,
however, the District Court logically reasoned in response to the citation to Indiana law
that the term "final action" should "be reserved to include solely those administrative
decisiVrhich fully dispose of a party's attempt to place, construct or modify personal
wireless service facilities." Id.
Sprint persists in arguing that this must be a "fmal action" for pwposes of the
TCA because "there are no procedural mechanisms available to Sprint under the Zoning
Ordinance to have the BZA's decisions reviewed and reversed" (Sprint's Brief, p. 12).
There is a procedural mechanism for the review of the BZA' s decision, but it would come
after a land use decision is made so that the courts would have certainty there is an
adverse decision. Williamson County. 473 U.S. at 186-94. Otherwise, the court's
resources would be expended toward resolving a non-existent dispute.
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In its ongoing attempts to persuade the Court that Indiana state law affects whether there
is a "final action" for purposes of the TCA, Sprint argues that its application for a special
use, variance, or the like under the Zoning Ordinance would estop it from arguing in the
future that it was entitled to the l~ent permit without filing any such
additional applications (Brief, pp.12-13, fn 17). In support of this proposition, Sprint
cites a case from yet another state courtlO, and one distinguishable case from Indiana.lI
Sprint fails to cite the leading Indiana cases that later held that a request for a variance,
10 The Illinois case is inapposite, particularly where there is Indiana case law that is on point.
II Children's HomeofSoutheastem Indiana. Inc. v. Area Planning: Comm'n of Franklin County.
486 N.E.2d 1048 (Ind. App.1985). The case is distinguished from the case at bar. The case
involved a group home, which was not a classified use under the zoning ordinance. A single-
family dwelling was allowed by right, while a multi-family dwelling required a special exception.
The group home applied for a special exception after the commission determined that the home
was a multi-family use. The Indiana Court of Appeals saw the developer's application as a self-
motivated and voluntary endorsement of the multi-family classification because the zoning
board's denial of the special exception occurred after the plan commission's multi-family
determination was declared null and void. (The plan commission's determination had been made
after an "illegal" executive session.) As Sprint has done in the case at bar, the developer in
Children's Home should have obtained a ruling on the record from the plan commission or
zoning board that a special exception was required before if filed its special exception
application, even if that would have required it to withdraw and re-file the application. The plan
commission subsequently failed to classify the use as either single-family or multi-family. The
developer neglected to timely appeal this decision (or non-decision), which it should have done
by a petition for mandatory injunction.
Upon the filing of the writ of certiorari in state court, the trial court remanded the special
exception to the zoning board to articulate its reason for denial. Also important and
distinguishing, the landowner successfully moved the court to correct errors and order the zoning
board to make a land use classification. The zoning board subsequently classified the use as
multi-family.
The Indiana Court of Appeals initially explained that the inadequate record from the plan
commission and parties' attorneys made "any meaningful determination of purported
irregularities impossible." It ruled that three issues (participation by disqualified members, a
taking, and violation of equal protection) were not raised by the developer in its writ of certiorari
and were, therefore, not preserved. The Indiana Court of Appeals refused to address the plan
commission's failure to classify the facility because the developer did not appeal that failure to
the zoning board before filing its writ. The court refused to review the special exception denial
because the developer failed to assert compliance with the ordinance in its brief or to introduce
the ordinance in the record or its brief. Finally, since the developer did not challenge the initial
lack of classification but proceeded with the special exception, and then convinced the court to
order the zoning board to make a classification, the appeals court ruled that the developer "could
not. complain that at a subsequent court ordered proceeding the Board classified the facility as
'dwelling, multi-family.'"
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special use, or special exception does not estop a party from later arguing that such an
application was not necessary. Metrouolitan Bd. ofZonine: Auueals 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); Metrouolitan Dev. Com'n of Marion County v.
Hair, 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 non-
conforming use exception to the zoning ordinance).
In Hair, the court concluded as follows:
A land owner should be entitled to seek a peaceful utilization of his
property even to the extent of seeking a governmental stamp of approval
which the owner deems unnecessary. One might reasonably try to avoid
the risk of a shut-down of his business operation pending a prolonged and
expensive permanent injunction suit. See Board of Zoning Auueals v.
Hyde. 160 Ind. App. 165, 310 N.E.2d 908 (1974). Assessing his various
options he might well decide to 'not fight City Hall' and to proceed along
the lines of accommodation and compromise. Persons of strong principle
and/or unlimited funds might choose otherwise, but we will not apply a
doctrine of estoppel or any other issue preclusion concept to the facts
before us. See Theta Kauua. Inc. v. City of Terre Haute, (1967) 141 Ind.
App. 165, 228 N.E.2d 34 (Appellate Court denied Motion to Dismiss
Appellant's Petition for Rehearing which asserted that filing petition for
variance subsequent to appeal mooted Appellant's contention that use was
in conformity with zoning classification.
The Hairs' previous request for a variance did not estop them from
claiming in the subsequent action brought by the Commission that their
properties came within the nonconforming use exception to the zoning
ordinance. . .
Id.
Sprint has preserved its right to challenge the plat amendment by appealing the Director's
decision to revoke the lo_t to the BZA. Similarly, Sprint's right to
challenge the special use requirement is preserved because the BZA has stated on record that such
application is required to proceed with the permitting process on the Zamber Residence. The City
concedes that Sprint has preserved these two rights.
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There is no fmal action here, and State law does not control that issue for purposes of
the TCA. Furthermore, the City concedes that Sprint would not be estopped from
asserting that any additional applications were unnecessary if any final action ultimately
taken by the City would be adverse to Sprint.
C. Sprint's Emphasis on the TCA's Rapid Deployment
Element Cannot Override the Conventional Zoning
Ordinance Procedures and the Ripeness Requirements of
the Federal Courts.
Sprint argues that the District Court's decision to grant the Motion to Dismiss
does not promote the TCA's "rapid deployment" policy because it is then forced "to seek
additional time-consuming and expensive forms of zoning relief' (Sprint's Brief, pp. 21-
22). Sprint is attempting to bully its way through the zoning process with the TCA's
"rapid deployment" policy as its club. In effect, Sprint posits that the federal judiciary
should function as a master zoning board, granting it hardship variances from sundry
local ordinances whenever it suggests that it needs to "rapidly deploy" its
telecommunications equipment.
If there is any hardship here, it has been self-imposed by Sprint. First, Sprint
insisted on challenging the BZA's interpretation of its timeliness rule rather than
following the administrative roadmap laid out for it by the City's zoning officials. Sprint
wasted nine months litigating the question whether it should have had 32 rather than 30
days to file an appeal with the BZA, when it could have obtained a hearing from the
City's plan commission on a primary P~within one month (Complaint, 1M]
27,30, and 36). It has now wasted an additional 12 months on the instant litigation, when
it could have obtained a hearing from the BZA on a special use application within one
month. Having burned up a total of 26 months since it originally filed for its ~
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~vement permit, Sprint continues to spurn the administrative remedies that remain
available to it under the City's ordinances and the state's statutes, so that it can pursue a
will of the wisp in the federal courts.
The procedures required for this matter are not "additional time-consuming and
expensive forms of zoning relief," but simply the conventional zoning process prescribed
by Indiana law. Sprint cannot be allowed to intimidate its way through the zoning
process and skip certain aspects whenever it feels it is in a hurry. As the District Court
observed, the BZA decisions "establish[ ed] the procedural route Sprint must take at this
juncture in order to proceed with its project: it must submit a subdivision plat to the Plan
Commission and apply for a special use permit with the BZA (A-9).
CONCLUSION
Under the law articulated by the U.S. Supreme Court, the Seventh Circuit, and the
United States District Court of the Southern District of Indiana, the Complaint fails for
lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12 (b) (1). For the
foregoing reasons, the decision of the District Court to dismiss the matter for lack of
subject matter jurisdiction should be up
Dated: July 21,2003
Ju Y
Judy G. Hester, Attorney No. 21466-29
Smyth Hester & Grisham, LLP
Fidelity Plaza - Tower One
11550 North Meridian, Suite 125
Carmel, IN 46032
Telephone: 317/843-5566
John R. Molitor, Attorney No. 9313-49
9465 Counselors Row, Suite 200
Indianapolis, IN 46240
Telephone: 317/843-5511
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Case Number:
032216
Sprint Spectrum., L.P. v. The City of Carmel, et al.
CERTIFICATE OF SERVICE
The undersigned, counsel for the Defendants-Appellees, The City of Carmel,
Indiana, et al, hereby certifies that, on July 21, 2003, copies of the Brief of Defendants-
Appellees and virus-free digital versions of the same were sent by Federal Express
overnight courier to:
W. Scott Porterfield, Esq.
Steven J. Yatvin, Esq.
Thomas F. Bedsole, Esq.
BARACK FERRAZZANO KIRSCHBAUM
PERLMAN & NAGELBERG LLC
333 West Wacker Drive
Suite 2700
Chicago, Illinois 60606
LOCKE REYNOLDS LLP
201 North Illinois Street
Suite 1000
Indianapolis, IN 46244
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Case Number:
032216
Sprint Spectrum, L.P. v. The City of Carmel, et al.
CIRCUIT RULE 31(e) CERTIFICATION
The undersigned hereby certifies that I have filed electronically, pursuant to
Circuit Rule 31 (e), versions of the brief and all of the appendix items that are available in
non-scanned, virus-free, PDF format.