HomeMy WebLinkAboutNo. 03-2216 US Court of Appeals-Brief & Required Apppendix
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No. 03-2216
UNITED STATES COURT OF APPEALS"
FOR THE SEVENTH CIRCU~:r:
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RECFIVED
,JUN f 24 2D03
DOCS
SPRINT SPECTRUM L.P.,
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Plaintiff-Appellant,
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THE CITY OF CARMEL, INDIANA,
THE BOARD OF ZONING APPEALS FOR
THE CITY OF CARMEL AND CLAY TOWNSHIP,
and MICHAEL P. HOLLffiAUGH, in his capacity as
Director of the Department of Community Services, Carmel, Indiana,
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Indiana
Case No.: IP 02-1133
The Honorable John D. Tinder
BRIEF AND REQUIRED APPENDIX OF
PLAINTIFF-APPELLANT, SPRINT SPECTRUM L.P.
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
Telephone: (312) 984-3100
Facsimile: (312) 984-3115
LOCKE REYNOLDS LLP
201 North Illinois Street
Suite 1000
Indianapolis, Indiana 46244
Telephone: (317) 237-3842
Facsimile: (317) 237-3900
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CIRCUIT RULE U.I DISCLOSURE STATEMENT
Appellate Court No: 03-2216
ShortCaptioo: Sprint Spectrum L.P. v. City of Carmel, et al
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-govemmental part)r
or amicus curiae, or a private attorney f'e9resentine a government party, must furnish a disclosure statement providing the
following information in compliance witll Cilcuit Rul~ 26.1 and Fed R. App. P. 26.1. .
.The Court prefers that the disclosure statettlent be filed immediately foUowing 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 chis court,
whichever OCCUIS first Attorneys are required to file an amended statement to reflect any material changes in the required
informatiOn. The text of.dJe stateinent must also be included in front of the .table of cOntents of the party's main brief
CoUDSeI is reqaired to complete the eaCire statemeilt8lld to use N/A for any information that is Rot appUcable iftbis
form is osed. .
(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 information required by Fed R. App. P 26.1 by completing item #3):
Sprint. Spectrum L.P.
'(2) The names ofaB law firms whose partners or associates have appeared for the party in the case (mcluding pc~in~
in the district court or before an administmtive agency) or ~expected to appear for the party in this court:
Locke Reynolds.
Barack Ferrazzano Kirschbaum Perlman & Nagelberg U./S.C.A. -7th Circuit
. RECt:IVED
MAY 2.3 2003 AJB
(3) If the party or amicus is a corporation:
i) Identify aU its parent corporations, if any; and
. Sprint Corporation
GINO J'; AGNELLO
CLERK
ii) list any publicly held company that owns loaAt or more of the party's or amicus' stoc1c:
Sprint Corporation
__ t! >4att/ko-fd
AItorney"sPriutedName: W. Scott Porterfield
0- /l-bi c9./, d, (J03
fteaie ~ if you an: CDunseI of RetXmJ lor the above listedparties pulllUlUIt to Cin:uit Rule 3(d). Yes --L- N. _
~ Barack Ferrazzano .Kirschbaum Perlman & Nagelberg LLC
333 West Wacker Drive, Suite 2700, Chicago, Illinois 60606
Ph~N~ (312) 984-3202
(312) 984-3220
fax Number:
E-MailAddn:ss::Scott.porterfield@BFKPN.COM
rev. 11/01 AI(
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TABLE OF CONTENTS
:w TABLE OF AUTHORITIES.... ................... ........ ...... .......... ...... .., ...... ....... .... ...... Hi
JURISDICTIONAL STATEMENT....................................................................... 1
ISSUE PRESENTED.............................................. ........................................... 1
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STATEMENT OF THE CASE....................... .., .................. ..... .......... ....... ...........2
STATEMENT OF FACTS.................................................................................. 3
A.
Sprint Received The Building Permit....... ... ...... .................. ..... ... .......... 3
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B. The Building Permit Was Challenged And Revoked ................................. 4
C. The BZA Heard The Administrative Appeals.............. .. . .. . .. . .. .. .. .. . .. .. .. .... 5
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D.
Sprint Filed Its Complaint... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 6
E. The Defendants And Intervenor Moved To Dismiss Sprint's
Complaint. .. ... . . . . . . ... . . .. .. . .. . . . ... . .. .. .. . . . .. . . . . . . . . . . . .. . . . . . . . . . .. . . . . . .. . . . . . . . . . .. 7
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F.
The District Court Granted The Motions To Dismiss................................ 7
STANDARD OF REVIEW....... ........... .... ............ ..... .... ....... ......... ...................... 8
SUMMARY OF ARGUMENT... ........... ... ... ........ ..... ... ..... ..... ........ ........ ........ ....... 9
" ARGUMENT......................... ....................................................................... .10
A. The BZA's Decisions On The Administrative Appeals Are "Final
Actions" Under The TCA .. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . 10
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1.
The BZA' s Decisions On The Administrative Appeals Are
Final Actions When The Phrase "Final Action" Is
Construed In The Context Of The TCA' s Preservation of
Local Zoning Authority. ...... ........ ...... .... ....... ....... ..... ..... .........10
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2.
The BZA' s Decisions On The Administrative Appeals Are
Final Actions When The Phrase "Final Action" Is
Construed In The Context Of The TCA' s Rapid
Deployment Policy ............................................................... 13
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Precedent From This Circuit Requires That
The BZA' s Decisions On The Administrative
Appeals Be Deemed "Final Actions." ........................................15
B. The District Court Erred When It Applied The Williamson
County Ripeness Standard To The TCA's "Final Action"
Requirement. ............................................................................... 17
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1. Williamson County Only Applies In The Context Of
Takings Cases ..................................... ......... .............. .........18
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Williamson County's Ripeness Requirement Is Inconsistent
With The Language And Purpose Of The TCA.............................21
CONCLUSION............................. ..................................................................22
2.
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TABLE OF AUTHORITIES
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Cases
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Ackerv. E.P.A., 290F.3d 892 (7 Cir. 2002) .........................................................17
Aegerter v. City of Delafield, 174 F.3d 886 (7~ Cir. 1999).....................................11, 16
Q Bavido v. Apfel, 215 F.3d 743 (71l1 Cir. 2000) .....................................................15, 16
Bennett v. Spear, 520 V.S. 154, 117 S. Ct. 1154 (1997).............................................17
Bieter Co. v. Blomquist, 987 F.2d 1319 (81l1 Cir. 1993) ............................................ ..20
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Children's Home of Southeastern Indiana, Inc. v. Area Planning
Comm'n of Franklin County, 486 N.E.2d 1048 (Ct. App. Ind. 1985)...........................13
Cohen v. Township ofCheltenham, 174 F. Supp. 2d 307 (E.D. Pa. 2001) .......................21
Forseth v. Village of Sussex, 199 F .3d 363 (71l1 Cir. 2000)......................................... ..19
Franklin v. Massachusetts, 505 V.S. 788, 112 S. Ct. 2767 (1992)......................... ...16, 17
Illinois RSA No.3, Inc. v. County of Peoria, 963 F.Supp. 732 (C.D. Ill. 1997).................12
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Indiana Bell Tel. Co., Inc. v. Smithville Tel. Co., Inc., 31 F. Supp. 2d
628 (S. D. Ind. 1998) ..................................................................................... 12
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MacDonald, Sommer & Frates v. County of Yolo, 477 V.S. 340,
106 S. Ct. 2561 (1986).................................................................................. .18
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McCarthy v. Madigan, 503 V.S. 140, 112 S. Ct. 1081 (1992)..................................... .16
MCI Telecomm. Corp. v. Illinois Bell Tel. Co., 222 F.3d 323 (71l1 Cir. 2000).................. ..14
Nasierowski Bros. Inv. Co. v. City of Sterling Heights, 949 F.2d 890 (61l1 Cir. 1991) .....20, 21
Omnipoint Comm., Inc. v. Zoning Hearing Bd. of E. Pennsboro Township,
4 F. Supp. 2d 366 (M.D. Pa. 1998)...................................................................21
(jf; Suitum v. Tahoe Reg'l Planning Agency, 520 U.S. 725, 117 S. Ct.
1659 (1997) ............................................................................................... .18
Transit Exp., Inc. v. Ettinger, 246 F.3d 1018 (71l1 Cir. 2001)......................................... 8
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Triple G Landfills, Inc. v. Bd. of Comm'rs of Fountain Co., Indiana,
977 F.2d 287 (71l1 Cir. 1992)........................................................................... .20
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Trustees of the Chicago Truck Drivers, Helpers and Warehouse Workers Union (Ind.)
Pension Fund v. Leaseway Trans. Corp., 76 F. 3d 824 (7th Cir. 1996).......................... 13
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Virginia Metronet, Inc. v. Bd. of Supervisors of James City County, Virginia,
984 F. Supp. 966 (E.D. Va. 1998) ....................................................................11
Western Ill. Home Health Care, Inc. v. Herman, 150 F.3d 659 (7th Cir. 1998)..................17
Williamson County Reg 'I Planning Comm 'n v. Hamilton Bank of Johnson City,
473 U.S. 172, 105 S. Ct. 3108 (1985) .......................................................... passim
Constitutional Amendments
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Fifth Amendment..... ......................................................................................... 1
Fourteenth Amendment.. .. . ... . . .. .. . . . .. .. . . . . . .. . . . . ., . . . . .. . . . . . . . . . . .. . . . . . . . . . . . . . . . . .. . . . . . . . . .. .. . . .. 1
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Statutes
28 U. S. C. ~ 1291 ............................................................................................. 1
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28 U.S.C. ~ 1331 ..............................................................................................1
28 U. S. C. ~ 1367 .............................................................................................. 1
28 U.S.C. ~~ 2201, et. seq..................................................................................1
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47 U.S.C. ~ 151, et. seq..................................................................................... 1
47 U.S.C. ~ 332(c)(7)(A)..............................................................................11, 20
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47 D.S.C. ~ 332(c)(7)(B)............................................................. 6,7,11,14,16,20
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47 U.S.C. ~ 332(c)(7)(B)(ii) ...............................................................................15
47 U.S.C. ~ 332(c)(7)(B)(iii) ............................................................................. .19
47 U.S.C. ~ 332(c)(7)(B)(v) ................................................................... 2,7,10,22
5 U. S. C. ~ 504 ...................... .. . .. . . .. . . . .. . . . . . . . . . . . . .. . . . . .. . . . . . . . .. . . . .. .. . . . . . . . . . . . . . . . . . . . . . . . 16
Q Zoning Ordinance for the City of Carmel and Clay Township
Section 30.7 .................................................................................................. .12
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Section 5.1 ............. '" ............ ............ ... ..... ........ ......... ......... ..... ........... ...3,4, 10
Section 5.2 ...................... .............. ...................................................... ...... ... .10
Section 30.1 ........ . . . . . . . . . . . .. . . . . . . . .. . . . . . . . . . . . . .. . .. . . .. . . .. .. . . . .. .. . . .. .. . . . . . .. . . . . . . . . . . . . . . . . .. .. .... 5
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JURISDICTIONAL STATEMENT
The United States District Court for the Southern District of Indiana (the "District
Court") had federal question jurisdiction over this action pursuant to 28 U.S.C. ~ 1331. The
complaint fIled by Sprint Spectrum L.P. ("Sprint") alleged claims under: the
Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56, codified throughout 47
U.S.C. ~ 151, et. seq.; the Fifth and Fourteenth Amendments to the United States
Constitution; and the Declaratory Judgment Act, 28 U.S.C. ~~ 2201, et. seq. The District
Court also had supplemental jurisdiction over certain Indiana state law claims pursuant to 28
U.S.C. ~ 1367.
The District Court dismissed all of Sprint's federal claims for lack of subject matter
jurisdiction and issued its Entry on Defendants' and Intervenor's Motions to Dismiss and
Judgment on March 28, 2003. Having dismissed Sprint's federal claims, the District Court
also dismissed the Indiana state claims for lack of jurisdiction.
The United States Court of Appeals for the Seventh Circuit has jurisdiction over this
appeal pursuant to 28 U.S.C. ~ 1291, which provides that: "(t]he courts of appeals. . . shall
have jurisdiction of appeals from all final decisions of the district courts of the United States."
Sprint appeals from the Entry on Defendants' and Intervenor's Motions to Dismiss and the
Judgment entered by the District Court on March 28, 2003, which together are a final decision
of the District Court. The Notice of Appeal for this action was fIled on April 28, 2003.
ISSUE PRESENTED
Whether the District Court properly dismissed Sprint's claims under the
Telecommunications Act for lack of subject matter jurisdiction?
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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. Sprint's complaint challenged the revocation of an improvement
location permit (the "Building Permit") to collocate wireless communications antennas and
related equipment (together, the "Sprint Antenna") on an existing radio tower. Sprint's
complaint alleged that the proposed collocation is "permitted by right" (i.e., does not require
any variances or other special land use approvals) under the applicable zoning ordinance of the
City of Carmel and Clay Township, Indiana.
Sprint further alleged that the administrative appeals to the Defendant Board of Zoning
Appeals of the City of Carmel and Clay Township, Indiana (the "BZA") relating to the
issuance and revocation of the Building Permit (together, the "Administrative Appeals")
exhausted all available administrative action on the issue of whether Sprint was entitled to the
Building Permit by right. Sprint thus alleged that the BZA' s decisions on the Administrative
Appeals constituted "final actions" within the meaning of Section 704(B)(v) of the
Telecommunications Act of 1996, 47 V.S.C. ~332(c)(7)(B)(v) (the "TCA "). Because the
BZA's decisions on the Administrative Appeals were "final actions" under the TCA, Sprint's
lawsuit challenging those rulings was ripe and Sprint's complaint should not have been
dismissed .
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STATEMENT OF FACTS
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A.
Sorint Received The BuiIdinl! Permit.
Sprint and its affiliates provide wireless communications services throughout the United
States under the brand name "Sprint PCS.,,1 (Cmplt. ~ 2, A32.)2 In order to provide those
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wireless services, Sprint must erect cell sites3 throughout its coverage areas. (Cmplt. ~ 13,
A34.)
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In order to remedy coverage gaps in a portion of its metropolitan Indianapolis network,
Sprint entered into a lease with Dr. Edwin Zamber to place the Sprint Antenna on his property
at 1388 Queens Way, Carmel, Indiana (the "Zamber Site"). (Cmplt.~~ 15-17, A34-A35.)
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The Zamber Site is improved with Dr. Zamber's home and an existing 135-foot high ham
radio tower (the "Existing Tower"). (Cmplt.'~ 18, 20, A35-A36.) The Existing Tower
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satisfies Sprint's technical criteria, is already improved with ham radio antennas that are much
larger than Sprint's proposed antennas, and obviates the need to construct a new free-standing
antenna support tower. (Cmplt. ~~ 16, 18, A35-A36.) Section 5.1 of the zoning ordinance of
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the City of Carmel and Clay Township expressly permits the collocation of antennas on an
existing tower in the "S-l Residence" zoning district in which the Zamber Site is located.
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(Cmplt. ~ 19, A36.)4
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Those services consist of personal communications services ("PCS"), a form of personal
wireless services, furnished under license by the Federal Communications Commission. (Cmplt.' 11,
A33.) Sprint PCS consumer services include digital wireless telephone service, high speed wireless
data and internet applications, enhanced "911" services, and other wireless services. (Id.)
2 Cites to the Appendix appear as "A _ "; cites to the record provide the docket number of the
document and the relevant page and paragraph.
3 Cell sites consist of transmitting and receiving antenna base stations, having antennas mounted
on towers, poles or other tall structures. The technical requirements for the placement of each cell site
within a network are highly location-specific. (Cmplt.' 14, A34.)
4 Section 10-30 is the citation to the zoning ordinance as codified in the City of Carmel Code.
Section 10-30 is the same provision as section 5.1 of the uncodified zoning ordinance. Section 10-30,
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On April 17, 2001, Sprint applied to the Defendant City of Carmel, Indiana (the
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"City") for the Building Permit. (Cmplt.' 21, A36.) At the instance of the City's staff,
Sprint made certain revisions to its plans for the Sprint Antenna. (Cmplt. '20, A36.)
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The City subsequently issued the Building Permit to Sprint on or about June IS, 2001.
(Cmplt. , 22, A37.) The Building Permit authorized the installation of special 10w-prof1le
antennas upon the sides of the Existing Tower and the construction of a ground-level
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equipment shelter that was to match the architecture of Dr. Zamber's adjoining pool house.s
(Id.)
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B.
The Buildinl! Permit Was Challenl!ed And Revoked.
After Sprint commenced and partially completed the installation of the Sprint Antenna
in accordance with the Building Permit, a neighboring property owner (the Intervenor, Richard
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Deer) appealed the issuance of the Building Permit to the BZA. (Croplt.' 25, A37.) Mr.
Deer claimed that the Sprint Antenna was not a "permitted use" (i.e., a use permitted by right)
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for zoning purposes, but instead required a special "use" permit.6 (Id.)
The BZA, pursuant to the zoning ordinance, is the local body that is responsible for
hearing appeals of decisions of the Director of the City's Department of Community Services
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(the "Director"). (A8.) Thus, the City acts on appeals through the BZA. (Cmplt.' 3, A32.)
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the codified version of the zoning ordinance, was cited in Sprint's Complaint while Section 5.1, the
uncodified version, was cited in the briefing before the District Court. Sprint will refer to Section 5.1
in this brief so there is consistency with the record in the District Court.
S Attached to the Complaint as Exhibit A is a photo simulation of the Sprint Antenna. (A51.)
That photo simulation shows Sprint's proposed PCS antennas, which would be "flush-mounted"
vertically next to the Existing Tower, and also shows three sets of existing "side-arm" ham radio
antennas that Dr. Zamber mounted horizontally on the Existing Tower several years ago. The
approximate length of each of the current horizontal ham radio antennas is 44 feet.
6 The appeal filed by Mr. Deer was referred to by the District Court as the "Zoning Appeal" and
by the parties in their briefing as the "Deer Appeal."
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Under Section 30.1 of the zoning ordinance, the BZA is empowered to "hear, review and
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determine appeals taken from any order, requirements, decision or determination made by the
Director or any administrative official or board charged with the enforcement of the Zoning or
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Subdivision Control Ordinance of the City of Carmel." (A52.)
Approximately one week after the Deer Appeal was filed with the BZA (and prior to
any hearing by the BZA), the Defendant Director issued a letter to Sprint that purported to
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revoke the Building Permit. (Cmplt.' 27, A37-A38.) The Director's letter of revocation
stated that, prior to the Building Permit being issued, Sprint should have applied for
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subdivision plat approval for the property on which the Sprint Antenna was to be placed. (Id.)
Because no subdivision plat approvals, variances or other special subdivision-related approvals
were required by the local zoning and subdivision control ordinances (together, the "Zoning
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Ordinance"), Sprint filed the second Administrative Appeal with the BZA, challenging the
Director's purported revocation of the Building Permit on subdivision grounds.' (Cmplt. , 30,
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A38.)
c. The BZA Heard The Administrative Appeals.
The Administrative Appeals were interrelated and each involved an administrative
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determination by the BZA of the propriety of the issuance and revocation of the Building
Permit. (Cmplt." 25, 30, A37-A38.) Specifically, the Administrative Appeals required a
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determination by the BZA under the Zoning Ordinance whether Sprint's collocation of the
antenna on an existing tower was permitted by right or whether Sprint was required to obtain
either a special zoning "use" permit or subdivision approval for the Sprint Antenna. (Id.)
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, The administrative appeal filed by Sprint was referred to by the District Court as the
"Subdivision Appeal" and by the parties as the "Sprint Subdivision Appeal."
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In connection with the Administrative Appeals, the BZA held multiple public hearings
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in which it heard the parties' legal arguments and submittals of evidence. (Cmplt." 37, 39,
A39-A40.) At the conclusion of each Administrative Appeal, the BZA issued rulings that
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upheld the Director's revocation of the Building Permit on the theory that the Sprint Antenna
was not permitted by right, but required special subdivision and use approvals.8 (Cmplt. " 38,
40, A39-A40.)
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D.
Sprint Filed Its Complaint.
On July 23, 2002, Sprint filed its Complaint for Injunctive, Declaratory, Mandamus
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and Other Relief (the "Complaint") with the District Court. (A31-A50.) The Complaint
alleges various claims for relief, including four claims for relief under Section 704(B) of the
TCA, codified at 47 D.S.C. ~ 332(c)(7)(B) ("Section 332(c)(7)(B)").9 (Cmplt. " 46-66, A42-
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8 As to the question of the necessity of a zoning use permit, the BZA's finding was, inter alia,
contrary to the report and recommendation of the City's staff. (Docket #50 at Exhibit K, p. 57.) As to
the alleged necessity of subdivision approvals, the BZA, inter alia, did not issue written findings
explaining why the Sprint Antenna constituted a "subdivision," nor was there any written findings
explaining why this was apparently the first lease, in addition to being the first cell site, that the City
elected to subject to the subdivision control process. (A20-A24.)
9 The relevant portions of ~ 332(c)(7)(B) as it relates to Sprint's Complaint state:
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(i) The regulation of the placement, construction, and modification of
personal wireless service facilities by any State or local government or
instrumentality thereof
(I) shall not unreasonably discriminate among providers of
functionally equivalent services; and
(II) shall not prohibit or have the effect of prohibiting the
provision of personal wireless services.
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(ill) Any decision by a State or local government or instrumentality
thereof to deny a request to place, construct, or modify personal
wireless service facilities shall be in writing and supported by
substantial evidence contained in a written record.
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A45.) Sprint's TeA claims allege, inter alia, that the BZA's decisions on the Administrative
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Appeals violate Section 332(c)(7)(B) because those decisions are not supported by substantial
evidence and unreasonably discriminate against Sprint. (Cmplt." 46-62, A42-A45.) At the
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heart of Sprint's Complaint is its position that the Zoning Ordinance does not require Sprint to
seek a special use permit, variance or other use or subdivision approval prior to collocating the
Sprint Antenna upon the Existing Tower. (Cmplt." 16-19, A35-A36.)
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E.
The Defendants And -Intervenor Moved To Dismiss
Sprint's Complaint.
On September 13, 2002, the Defendants-Appellees (the "Defendants") filed a motion to
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dismiss the Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(I).lO (Docket #32). A second motion to dismiss brought pursuant to Rule
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12(b)(1) was filed by Mr. Deer, the Intervenor,u (Docket #34.) In their respective motions to
dismiss, the Defendants and the Intervenor argued, inter alia, that the BZA's decisions on the
Administrative Appeals were not "final actions" for purposes of Section 332(c)(7)(B)(v) of the
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TCA. (Docket #32 at 4-6; Docket #34 at 15-18.)
F. The District Court Granted The Motions To Dismiss.
On March 28, 2003, the District Court issued its Entry On Defendants' And
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Intervenor's Motions To Dismiss and a separate Judgment (together, the "Decision") in which
it granted the motions to dismiss. (Al-A19.) The District Court held, inter alia, that the
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BZA's decisions on the Administrative Appeals were not "final actions" for purposes of the
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10 On January 6, 2003, Sprint and the Defendants each filed motions for partial summary
judgment. The District Court did not address those motions, and instead dismissed the action on
subject matter jurisdiction grounds. (AI-A19.)
11 Counsel for Mr. Deer has informed Sprint that Mr. Deer has opted not to participate in this
appeal and Mr. Deer has not filed a disclosure statement with the Seventh Circuit.
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TCA.12 (A7-AI4.) In holding that the BZA's decisions were not "fmal actions," the District
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Court applied the ripeness analysis for takings claims articulated by the Supreme Court in
Williamson County Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172,
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105 S. Ct. 3108 (1985). (AI2-AI4.)
Applying the Williamson County ripeness requirement, the District Court found that
there could not be a "fmal action" for purposes of the TCA until Sprint had exhausted all
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"reasonably available administrative paths." (A13.) The District Court found that such
"reasonably available administrative paths" existed in this case. (Id.) An example of one such
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"reasonably available administrative path" provided by the District Court was a special use
permit application. (Id.) Because it found that "reasonably available administrative paths"
existed in this case, the District Court, applying the Williamson County ripeness requirement as
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a proxy for the TCA's "final action" requirement, dismissed Sprint's TCA and other federal
claims. (AI2-14.)
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STANDARD OF REVIEW
The Seventh Circuit reviews de novo a district court's decision dismissing a case for
lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure.
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Transit Exp., Inc. v. Ettinger, 246 F.3d 1018, 1023 (7th Cir. 2001). In reviewing a decision to
dismiss a complaint for lack of subject matter jurisdiction, this Court "must accept the
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complaint's well-pleaded factual allegations as true and draw reasonable inferences from those
allegations in the plaintiff s favor. "13 Id.
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12 The District Court also ruled that Sprint's takings claim under the Fifth and Fourteenth
Amendments to the U.S. Constitution was not ripe. Sprint does not appeal that aspect of the District
Court's Decision.
13 In paragraph 42 of the Complaint, Sprint specifically alleged that the BZA' s rulings constitute
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179142_7.DOC
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(:)
SUMMARY OF ARGUMENT
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The District Court's holding that Sprint should have sought multiple forms of
administrative relief (such as seeking a special use permit and subdivision plat approvals) for
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that to which Sprint was otherWise entitled by right conflicts with the plain language of the
Zoning Ordinance and the TCA. Because the Zoning Ordinance provides that collocation of an
antenna on the Existing Tower is a permitted use, no special use . permit is authorized or
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required. Similarly, the Zoning Ordinance and the City's past practices make clear that it is
also not necessary or appropriate for Sprint to seek subdivision approvals for the Sprint
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Antenna. Accordingly, the special forms of zoning and subdivision relief that the City urged
Sprint to pursue (as the City revoked the Building Permit) are not necessary or appropriate
under the Zoning Ordinance and are not reasonably available alternatives to Sprint's
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entitlements by right.
The District Court's holding that Sprint should have pursued multiple administrative
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remedies would force Sprint to attempt to satisfy those administrative obstacles whose
applicability Sprint wishes to challenge. By contrast, the TCA defines "final action" by
reference to applicable state law which, in this case, includes the BZA's rulings on the
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Administrative Appeals. The TCA also expressly affords Sprint a right to have the BZA' s
rulings reviewed by a court of competent jurisdiction, including a federal district court.
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Hence, under the applicable terms of the TCA, Sprint's claims are ripe. In addition, Seventh
Circuit precedent in similar contexts dictates that the District Court's holding is incorrect.
Moreover, the District Court's holding does not comport with the policy and purpose of
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the TCA. The heart of the TCA is Congress' policy of encouraging rapid deployment of
final actions and are ripe for determination by the District Court. (A40.)
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179142_7.DOC
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telecommunications technology - a very different consideration than that at issue in the
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Williamson County case. The time-consuming, expensive and unnecessary steps to seek the
special permits that the District Court found necessary under the TCA' s "final action"
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language conflict with the language of the TCA and its rapid deployment policy. For the
foregoing reasons and the other reasons described below, the District Court erred by applying
Williamson County's ripeness requirement to Sprint's claims for review of a final
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administrative decision under the TCA.
ARGUMENT
Q
A.
The BZA's Decisions On The Administrative Appeals
Are "Final Actions" Under The TCA.
1.
The BZA's Decisions On The Administrative Appeals Are
Final Actions When The Phrase "Final Action" Is Construed
In The Context Of The TCA's Preservation of Local Zoning
Authority.
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Sprint maintains that, based on a plain reading of the Zoning Ordinance and in keeping
with the City's historical practices and the evidence presented, the Building Permit was
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properly issued and improperly revoked. The BZA, in its decisions on the Administrative
Appeals, rejected Sprint's evidence regarding the proper construction of the Zoning Ordinance
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and its proper application to the Sprint Antenna. 14 Those decisions are final actions, which
may be reviewed in a district court under the TCA. 47 V.S.C. ~ 332(c)(7)(B)(v).
'i1
14 Sprint maintains that the collocation of the Sprint Antenna on the Existing Tower is a permitted
use under Section 5.1 of the Zoning Ordinance, which expressly provides that an "Antenna, if
collocated on an existing or previously approved tower" is a permitted use. (Cmplt. '19, A36.)
Although the District Court opinion accepts the Defendants' suggestion that Sprint should have
attempted to obtain a "special use permit," Section 5.2 of the Zoning Ordinance only permits the
issuance of a special use permit for an "Antenna, if 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) (emphasis added.) Hence, suggestions
to the contrary notwithstanding, Sprint was not authorized to obtain a special use permit for the Sprint
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179142]OOC
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The meaning of "final action" under Section 332(c)(7)(B) must be defined with
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reference to Section 332(c)(7)(A) of the TCA. That section generally preserves local zoning
authority subject, however, to the specific procedural and substantive limitations of Section
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332(c)(7)(B). Specifically, Section 332(c)(7)(A) provides:
r;t;
Except as provided in this paragraph, nothing in this chapter shall
limit or affect the authority of a State or local government or
instrumentality thereof over decisions regarding the placement,
construction, and modification of personal wireless service
facilities.
47 V.S.C. ~ 332(c)(7)(A).
r;t;
Because local zoning authority is generally preserved, a judicial review under the TCA
is analyzed in the context of the applicable local zoning ordinance. For example, when a
service provider challenges a local decision as not being supported by substantial evidence, the
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court must make that determination under federal law by applying the evidence to the standards
supplied by the local zoning ordinance. See Aegerter v. City of Delafield, 174 F.3d 886, 891
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(7lh Cir. 1999); see also Virginia Metronet, Inc. v. Bd. of Supervisors of James City County,
Virginia, 984 F. Supp. 966, 972 (E.D. Va. 1998) ("The purpose of judicial review is to ensure
that the decision is supported by substantial evidence. . . based upon the applicable objective
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standards and policies of the governing body"). Similarly, because the decisions reviewed
under the TCA are local decisions, the "final action" question must also be determined in the
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Antenna. Sprint also contends that the Sprint Antenna does not constitute a "subdivision" in any legal
or other sense, and that the Sprint Antenna, like all other prior cell sites in the City, does not require
subdivision approvals and would not have been eligible for subdivision plat approval because cell sites
do not meet, inter alia, minimum lot size requirements. Although those substantive questions are not at
issue for purposes of this appeal, to the extent the Court finds it helpful to understand how the Zoning
Ordinance operates and the basis of Sprint's position that it has a right to collocate the Sprint Antenna
on the Existing Tower, Sprint refers the Court to relevant portions of Sprint Spectrum L.P. 's
Memorandum in Support of Its Motion for Partial Summary Judgment (Docket #64 at 10-16.)
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179142]DOC
11
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context of local authority. Thus, if a decision is final as a matter of state law, it is a "fInal
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action" for purposes of the TCA.
In this case, the parties obtained fmal decisions from the BZA on the issues presented
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by the Administrative Appeals, a point that the District Court recognized in its opinion (stating
that the BZA's decisions on the Administrative Appeals were "defmitive ruling[s] as to those
matters (the need for submission of a subdivision plat and special use permit application)")
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(AlO) (emphasis in original).ls The BZA's decisions are final because there are no procedural
mechanisms available to Sprint under the Zoning Ordinance to have the BZA' s decisions
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reviewed and reversed. As correctly noted in the District Court opinion, the BZA is the
highest admini!;trative appellate authority for the City of Carmel. (A8.)16
Sprint's only effective course for relief to maintain its entitlement by right to the
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Building Permit was to seek judicial review of the BZA's decisions.17 Because the BZA's
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IS The District Court made that statement in the context of distinguishing Indiana Bell Tel. Co.,
Inc. v. Smithville Tel. Co., Inc., 31 F. Supp. 2d 628 (S.D. Ind. 1998). Because the District Court
applied the onerous Williamson County requirement, however, it found that the BZA's decisions on the
Administrative Appeals, despite being definitive, did not satisfy the TCA' s "[mal action" requirement.
16 Under the Zoning Ordinance, the BZA is empowered to "hear, review and determine appeals
taken from any order, requirements, decision or determination made by the Director or any
administrative official or board charged with the enforcement of the Zoning or Subdivision Control
Ordinance." (Zoning Ordinance ~ 30.1) (A52.) Under Section 30.7 of the Zoning Ordinance, and in
confomlity with Indiana statutes, decisions by a board of zoning appeals are final and judicially
appealable actions. (A8.)
17 In effect, the District Court opinion raises the question why Sprint, if it had available to it
"reasonably available" forms of alternative administrative relief, pursued litigation instead of a
variance, special use, text amendment or other similar action. As noted in footnote 14 above, contrary
to suggestions by the Defendants, the Zoning Ordinance did not allow Sprint to seek a "special use
permit" for the Sprint Antenna, but at best might have authorized applications for variances or text
amendments; two forms of relief that are discretionary in nature. In addition to the impracticalities,
time delays, expense and other inefficiencies noted in footnotes 14 and 18 of this brief, there is
substantial case law support for the proposition that such an election by Sprint would have resulted in a
waiver of that to which it was otherwise entitled by right. For example, in lllinois RSA No.3, Inc. v.
County of Peoria, 963 F.Supp. 732, 742 (C.D. Ill. 1997), the court found that a carrier's election to
seek a special use permit for a personal wireless service facility resulted in a waiver of the carrier's
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179142 7.DOC
12
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decisions on the Administrative Appeals are fInal decisions on the issues presented thereby,
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those decisions should be deemed "fInal actions" for purposes of the TCA and, therefore, the
District Court's decision to the contrary should be reversed.
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2.
The BZA's Decisions On The Administrative Appeals Are
Final Actions When The Phrase "Final Action" Is Construed
In The Context Of The TCA's Rapid Deployment Policy.
In its opinion, the District Court, in determining if the BZA' s decisions constituted
Ci)
"fInal actions" under the TCA, stated that the language and legislative history of the TCA does
not provide much guidance on what the phrase "final action" means. (AlO.) That observation
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takes too narrow a view of the guidance that a statute can furnish. In addition to the express
provisions of Section 332(c)(7)(A) of the TCA, the subject matter and full text of the statute
provide ample additional guidance from which the meaning of "fInal action" can be drawn.
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See Trustees of the Chicago Truck Drivers, Helpers and Warehouse Workers Union (Ind.)
Pension Fund v. Leaseway Trans. Corp., 76 F.3d 824, 828 (rn Cir. 1996) ("statutory
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interpretation is a holistic endeavor and. . . must account for a statute's full text, language. . .
and subject matter"); see also id. ("it is a fundamental principle of statutory construction that
the meaning of a word cannot be determined in isolation, but must be drawn from the context
;;
in which it is used").
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arguments that no such permit was required under applicable State law. Similarly, in Children's Home
of Southeastern Indiana, Inc. v. Area Planning Comm'n of Franklin County, 486 N.E.2d 1048 (Ct.
App. Ind. 1985), an Indiana state court ruled that a group home's pursuit of a special exception for a
multi-family dwelling structure resulted in a waiver or estoppel as to the home's ability to later
challenge a denial of the special exception on the grounds that the home was misclassified as a multi-
family structure as opposed to a single family structure. [d. at 1051. Accordingly, had Sprint
acquiesced to the Defendants' suggestions and filed for unnecessary land use relief, there was a
substantial risk that such election would have resulted in a waiver of Sprint's claims that no such relief
was required. Parties cannot be expected to forgo legal entitlements in exchange for potential denials of
discretionary permits.
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179142 7.DOC
13
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The TCA effects Congress' policy of "encourag[ing] the rapid deployment of new
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telecommunications technologies." Telecommunications Act of 1996, Pub. L. No. 104-104,
110 Stat. 56; See also MCI Telecomm. Corp. v. Illinois Bell Tel. Co., 222 F.3d 323, 328 (7th
~ Cir. 2000). That policy of rapid deployment, in addition to being stated expressly in the
preamble of the TCA, suffuses 47 V.S.C. ~ 332(c)(7)(B), the portion of the TCA at issue in
this case. More particularly, three specific provisions of Section 332(c)(7)(B) indicate that
(ij
Congress intended its policy of rapid deployment to be integral to the siting of personal
wireless service facilities. First, Congress expressed that policy in its dictate to local
(ij authorities that they should act on requests to "place, construct, or modify personal wireless
service facilities within a reasonable period of time. " 47 V.S.C. ~ 332(c)(7)(B)(ii) (emphasis
added). Second, Congress placed responsibility for the rapid deployment of new
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telecommunications technologies on the entities that provide those technologies by enacting a
30-day limitations period within which personal wireless service providers are to file TCA
claims after there has been a final action. Id. at ~ 332(c)(7)(B)(v). Third, Congress directed
the courts to hear TCA claims on an "expedited basis." Id.
In view of the TCA' s rapid deployment policy and the various mechanisms adopted to
put that policy into effect, the correct standard to apply to "final action" under Section
332(c)(7)(B) should be one that requires a service provider to obtain a definitive ruling from
the local government solely on the issues presented to the local authorities. To require more of
a service provider, such as requiring the service provider to seek unnecessary forms of zoning
41
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179142 7.DOC
14
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relief, would create too many time-consuming procedural hurdles. 18 The time lost in pursuing
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such procedures would defeat the TCA' s rapid deployment policy.
3.
Precedent From This Circuit Requires That
The BZA's Decisions On The Administrative
Appeals Be Deemed "Final Actions."
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In an analogous case, this Court held that a plaintiff did not have to exhaust its
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administrative remedies if to do so would force the plaintiff- to suffer through the very
procedures that are the subject of the plaintiff's lawsuit. Bavido v. Apfel, 215 F.3d 743, 748
(7th Cir. 2000). _ In Bavido, the plaintiff sought copies of his medical records from the Social
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Security Administration ("SSA"). The SSA did not provide the records to the plaintiff because
the plaintiff failed to comply with SSA regulations that required him to designate a medical
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representative to receive the records. Id. at 746.
The plaintiff filed suit to retrieve his records from the SSA. The SSA moved to dismiss
on grounds that the court was without jurisdiction because the plaintiff had failed to exhaust his
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administrative remedies by not designating a medical representative to receive his records. [d.
This Court rejected the SSA's position and noted that the plaintiff, to exhaust his administrative
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remedies, would have to designate a medical representative, thus conceding his case. [d. at
748. In holding that the plaintiff did not have to exhaust his administrative remedies by
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18 As noted in footnotes 14 and 17 supra, the pursuit of a special use permit or subdivision
approval for the Sprint Antenna was not practicable- under the Zoning Ordinance. That, theoretically,
Sprint might have sought variances, text amendments or other time-consuming, expensive and/or
discretionary forms of relief, does not make the "reasonably available administrative paths" suggestion
any less problematic. If, as Sprint maintains, it is correct that the Zoning Ordinance permits the Sprint
Antenna by right, then the potential existence of multiple forms of relief to obtain that to which it is
otherwise entitled would result in unnecessary delays and inefficiencies. Such a result cannot comport
with the requirements of the TeA or, more generally, fundamental precepts of procedural due process.
Moreover, as to the question of futility, Sprint cannot reasonably rely on the prospects of obtaining
discretionary permits for the very same facility for which the Defendants revoked a properly issued
building permit after Sprint followed all applicable procedures and partially constructed its facility.
.,
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179 142_7. DOC
15
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requesting his medical records, this Court cited the precept that when "'the question of the
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adequacy of the administrative remedy. . . [is] for all practical purposes identical with the
merits of [the plaintiff's] lawsuit,''' a plaintiff need not exhaust administrative remedies. Id.
fit (quoting McCarthy v. Madigan, 503 U.S. 140, 148, 112 S. Ct. 1081, 1088 (1992)).
Sprint's TCA claims are similar to the plaintiff's claim in Bavido in that procedural
requirements are being challenged.19 Here, Sprint alleges that the defendants violated the TCA
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when the BZA issued its decisions requiring Sprint to seek subdivision approvals and special
zoning use permits prior to the installation of the Sprint Antenna. Applying the reasoning in
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Bavido, the BZA's decisions on the Administrative Appeals must be final actions for TCA
purposes.
The specific administrative law support for a finding of "final action" provided by
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Bavido is consistent with the general principles and construction of the Administrative
Procedure Act's "final agency action" requirement. See 5 U.S.C. ~ 504. Those principles
;,
should apply in the context of the TCA because, as this Court has pointed out, "when [a local
zoning authority] sits as an administrative body making decisions about zoning permits, they
are like any other agency the state has created." Aegerter v. City of Delafield, 174 F.3d 886,
fi)
890 (7th Cir. 1999).
In reviewing when an agency action is "final" and, therefore, ripe for administrative
--
review, the Supreme Court, in Franklin v. Massachusetts, 505 U.S. 788, 112 S. Ct. 2767
(1992), stated that the "core question is whether the agency has completed its decision-making
process, and whether the result of that process is one that will directly affect the parties." Id.
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19 Sprint's ripeness claims are even more compelling than those of the plaintiff in Bavido since
Sprint did, in fact, seek and obtain an administrative ruling before filing suit.
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179142_7.DOC
16
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at 797; see also Western Ill. Home Health Care, Inc. v. Herman, 150 F.3d 659, 662 (7tJJ Cir.
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1998). Additionally, courts must consider whether the administrative action is one in which
"rights or obligations have been determined, or from which legal consequences will flow."
Q See Bennett v. Spear, 520 U.S. 154, 178, 117 S. Ct. 1154, 1168 (1997) (internal quotations
omitted); see also Acker v. E.P.A., 290 F.3d 892, 894 (7tJJ Cir. 2002) (Applying Bennett's
articulation of the APA's "[mal agency action" threshold to the Clean Air Act's "final action
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of the Administrator" requirement.)
As explained in section Al above, the BZA has completed the administrative decision
Q making process as to the issues presented in the Administrative Appeals. By those decisions,
the BZA has made a determination of Sprint's legal right to collocate the Sprint Antenna on the
Existing Tower: according to the BZA, Sprint does not have such a right. Thus, the two basic
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requirements for an administrative decision to be a final action have been satisfied and,
therefore, Sprint's TCA claims should be allowed to proceed.
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B.
The District Court Erred When It Applied The
WiUiamson County Ripeness Standard To The TCA's
"Final Action" Reauirement.
In its opinion, the District Court applied the ripeness requirement for takings claims
~
articulated by the Supreme Court in Williamson County to the TCA's "[mal action" threshold.
(AI2.) Applying that standard, the District Court found that Sprint did not exhaust
;,.
"reasonably available administrative paths" and, therefore, dismissed Sprint's TCA claims.
(A13-14.)
The District Court erred by applying Williamson County to the TCA. First, the
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Williamson County ripeness requirement applies to regulatory takings cases and it is a distinct
product of the special considerations attendant to that context. The rejection of the Williamson
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179142 7.DOC
17
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County ripeness requirement by this and other courts in non-takings cases illustrates the
limitations on its scope. Second, an application of the Williamson County ripeness
requirements to the present case contravenes the language and purpose of the TCA.
1. WiUiamson Countv Only Applies In The Context Of Takings Cases.
By applying Williamson County to the "final action" question, the District Court
disregarded the distinctive issues presented by takings claims and TCA claims. In Williamson
County, the Supreme Court, in the context of holding that the plaintiff's takings claim was not
ripe, identified "the economic impact of the challenged action and the extent to which it
interferes with reasonable investment-backed expectations" as key issues that courts must
resolve when determining if a regulatory taking has occurred. 473 U.S. 172, 191, 105 S. Ct.
3108, 3119 (1985). The Court held that those issues "simply cannot be evaluated until the
administrative agency has arrived at a final, definitive position regarding how it will apply the
regulations at issue to the particular land in question." [d. In other words, it is not possible to
know if and to what extent a plaintiff's reasonable investment-backed expectations have been
interfered with by local regulation in a takings case until a local governing body has
determined what use, if any, may be made of the property in question. MacDonald, Sommer
& Frates v. County of Yolo, 477 U.S. 340, 350, 106 S. Ct. 2561,2567 (1986).
TCA claims are fundamentally different from regulatory takings claims. In the
regulatory takings context, courts are understandably reluctant to find that otherwise valid
regulations are so confiscatory as to constitute a taking compensable in money damages, unless
the petitioner has demonstrated that alternative relief is not available to it. Suitum v. Tahoe
Reg'l Planning Agency, 520 U.S. 725, 738, 117 S. Ct. 1659, 1667 (1997). In other words,
~
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179142_7.DOC
18
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before finding a compensable taking, Williamson County requires that said body be given a
chance to make a decision that avoids a taking.
By contrast, the issue presented by a TCA claim can be addressed as soon as the
highest municipal body empowered to make zoning decisions issues a decision regarding the
placement, construction, or modification of a personal wireless service facility. Once that
body has rendered its decision, a court can review that decision and determine whether or not
the decision comports with applicable law. Specifically, Sprint's claims under the TeA
require, inter alia, a reviewing court to determine whether, under Section 332(c)(7)(B)(iii), the
"decision" is not supported by substantial evidence contained in a written record. Therefore,
once a local body issues a final administrative decision on the issue presented, the elements
necessary to adjudge a TCA claim become concrete and ripe.
The foregoing dichotomy between the ripeness of takings and non-takings claims
explains the consistent rejection of the Williamson County ripeness requirement to non-takings
cases. For example, in Forseth v. Village of Sussex, 199 F.3d 363 (7th Cir. 2000), this Court
held that Williamson County's ripeness requirement did not apply to an equal protection claim.
The plaintiffs in Forseth were developers who alleged that the village board president, along
with a village administrator and with the ultimate approval of the village board, required the
developers to convey part of their land to the village board president for a nominal sum in
exchange for final plat approval for the development. [d. at 366. The plaintiffs raised various
claims, including a takings claim, a substantive due process claim, and an equal protection
claim.
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179142_7.DOC
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This Court rejected the defendants' invitation to apply Williamson County to the
plaintiffs' equal protection claim. The key question recognized by this Court was whether the
plaintiffs presented a bona fide equal protection claim, i. e., did the equal protection claim exist
separate and apart from the plaintiffs' takings claim. 199 F.3d at 371. In other words, if the
equal protection claim was essentially a takings claim dressed up in the form of equal
protection, as the Court found was the case with plaintiffs' substantive due process claim,
Williamson County would apply and the plaintiffs' equal protection claim would not be ripe.
See id. Because this Court found that the plaintiffs' equal protection claim was independent
from the takings claim, Williamson County's "special" ripeness requirement did not apply and,
therefore, the federal court had jurisdiction over the equal protection claim. Id.; see also id. at
368 (Referring to the Williamson County ripeness requirement as a "special ripeness doctrine
for constitutional property rights claims"); Triple G Landfills, Inc. v. Bd. of Comm'rs of
Fountain Co., Indiana, 977 F.2d 287,289 (71l1 Cir. 1992) (Holding that Williamson County
does not apply to a facial attack against a zoning ordinance). Here, it is uncontroverted that
Sprint's TCA claims are bona fide and not a proxy for a regulatory takings claims.
This Court's limitation of Williamson County to cases involving takings claims is
consistent with decisions from other circuits. In Bieter Co. v. Blomquist, 987 F.2d 1319 (81l1
Cir. 1993), the Eighth Circuit reversed a District of Minnesota decision applying Williamson
County as a standing requirement in a RICO case involving a plaintiff that received adverse
local land use decisions which were allegedly the result of, or at lease influenced by, bribery.
Id. at 1327. The Sixth Circuit, in Nasierowsld Bros. Inv. Co. v. City of Sterling Heights, 949
F.2d 890 (61l1 Cir. 1991), held that Williamson County did not apply to a procedural due
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179142_7.DOC
20
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process claim that related to a new zoning classification which was adopted in executive
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session of the local governing body and without giving notice to the plaintiff. [d. at 893-95.
In view of authority from this Court and other courts indicating that Williamson County
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is limited to regulatory takings claims, and in view of the inherent differences between the
issues presented by takings cases and TCA cases that explain why the more onerous ripeness
requirement is necessary in the takings context, the District Court's application of Williamson
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County to the TCA' s "final action" requirement was in error. 20
2.
Williamson County's Ripeness Requirement Is Inconsistent
With The Lan2Uage And Puroose Of The TCA.
Q
The TCA' s rapid deployment policy would not be served if the Williamson County
ripeness standard applies to the TCA's final action requirement. Under the District Court's
~
application of Williamson County, a wireless service provider would potentially have to seek
multiple forms of zoning relief prior to challenging a local body's denial of a request to place,
construct, or modify a personal wireless service facility under the TCA. In this case, the
;;
District Court believed that Williamson County requires Sprint to first seek the special use
permit and subdivision approvals that are not required by the Zoning Ordinance and then, only
~
upon denial of those applications, could Sprint maintain its TCA claims. (A 13.)
Congress' policy of "rapid deployment" does not comport with forcing a wireless
service provider to seek additional time-consuming and expensive forms of zoning relief when
~
)
20 But see Omnipoint Comm., Inc. v. Zoning Hearing Bd. of E. Pennsboro Township, 4 F. Supp.
2d 366,371 (M.D. Pa. 1998) (Applying Williamson County in finding a service provider's TeA claims
not ripe). The Omnipoint Comm. opinion was subsequently distinguished by another Pennsylvania
district court opinion holding that Williamson did not apply in a non-takings context. See Cohen v.
Township of Cheltenham, 174 F. Supp. 2d 307, 320 (E.D. Pa. 2001) (Declining to apply Williamson
County to a Fair Housing Act claim). Sprint submits that the basis for the Omnipoint Comm. opinion
was incorrect and instead urges application of the conventional finality and ripeness standards in federal
administrative review cases.
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179142 7.DOC
21
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that service provider has already obtained a defmitive decision on an issue presented to the
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local zoning authority. In view of the TCA's statutory objectives, Congress cannot have
intended "final action" to be interpreted in a way that would require such procedures.
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Moreover, as noted in greater detail in Section A1 above, the language of Section 332(c)(7)(A)
of the TCA contemplates that the term "final action" will be construed with reference to local
law, which, in this case, classifies the BZA's decisions on the Administrative Appeals as final.
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While the District Court opinion suggests that federal courts should not interfere with
local zoning matters, such jurisdiction is afforded under Section 332(c)(7)(B)(v), and nothing
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in Section 332(c)(7)(A) of the TCA allows a local body (or the district court) either to
disregard the limitations of Section 332(c)(7)(B) or to disregard the applicable limitations under
state law. The District Court, therefore, erred when it applied the ripeness requirement of
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Williamson County to the TCA's "final action" requirement.
CONCLUSION
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For the foregoing reasons, the decision of the District Court should be reversed and this
case should be remanded so that the District Court may address the merits of Sprint's federal
and supplemental state law claims.
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Dated: June 16, 2003
SPRINT SPECTRUM L.P.
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By: tJh~
W. Scott Porterfield
One of its attorneys
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179142 7.DOC
22
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W. Scott Porterfield, Esq.
Steven J. Yatvin, Esq.
BARACK FERRAZZANO KIRSCHBAUM
PERLMAN & NAGELBERG LLC
333 West Wacker Drive
Suite 2700
Chicago, Illinois 60606
Telephone: (312) 984-3100
Facsimile: (312) 984-3220
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Thomas F. Bedsole, Esq.
LOCKE REYNOLDS LLP
201 North Illinois Street
Suite 1000
Indianapolis, Indiana 46244
Telephone: (317) 237-3842
Facsimile: (317) 237-3900
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179142_7.DOC
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CERTIFICATE OF SERVICE
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The undersigned, counsel for the Plaintiff-Appellant, Sprint Spectrum L.P., hereby
certifies that, on June 16,2003, two copies of: the Brief and Required Appendix of Plaintiff-
Appellant, Sprint Spectrum L.P.; Supplemental Appendix of Plaintiff-Appellant, Sprint
Spectrum L.P.; and a digital version containing the Brief of Plaintiff-Appellant, Sprint Spectrum
L.P., were sent by Federal Express overnight courier to:
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Judy G. Hester
SMYTHE HESTER & GRISHAM, LLP
Fidelity Plaza - Tower One
11550 North Meridian, Suite 125
Carmel, IN 46032
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John Molitor
MOLITOR & GRISHAM, P.A.
11711 North Meridian Street, Suite 200
Carmel, IN 46032
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180440JDOC
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Case Number: 032216
Sprint Spectrum L.P. v.The City of Carmel, et al.
CIRCUIT RULE 31(e) CERTIFICATION
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The undersigned hereby certifies that I have filed electronically, pursuant to
Circuit Rule 31(e), versions ofthe brief and all ofthe appendix items that are available
in non-scanned PDF format.
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TABLE OF CONTENTS
Document
Circuit Rule 30( d) Statement
Judgment entered on March 28, 2003
Entry on Defendants' and Intervenor's Motions to Dismiss
Findings of Fact (Ballot Sheets) on Subdivision Appeal
Issued on July 22, 2002
Findings of Fact on Deer Appeal Issued on June 24,2002
180671_l.DOC
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CIRCUIT RULE 30(d) STATEMENT
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Pursuant to Circuit Rule 30( d), counsel certifies that all material required by Circuit Rule
30(a) and (b) are included in the appendix.
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180438_l.DOC
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(.)
y,
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
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SPRINT SPECTRUM, LP., )
)
Plaintiff, )
)
vs. )
)
. THE CIlY 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. Cannel, Indiana )
)
Defendants, )
)
and )
)
~CHARDDE~ )
)
Intervenor. )
)
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JUDGMENT
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1 :02-cv-01133-JDT - T AS
The court has found that the Defendants City of Carmel, Indiana, the Board of
Zoning Appeals for the City of Carmel and Clay Township, and Michael P. Hollibaugh In
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subject matter jurisdiction should be GRANTED.
his official capacity, and the Intervenor Richard Deer's motions to dismiss for tack of
IT IS NOW THEREFORE ORDERED, ADJUDGED AND DeCREED that
judgment is entered In favor of the Defendants and against the Plaintiff because the
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court lacks subject matter jurisdiction over the P1ainUff's claims. The Plaintiff shall take
nothing by way of Its complaint
ALL OF WHICH IS ORDERED this day 28t11 of March 2003.
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Laura A. Briggs. c;te
United _States Djstri~
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By Anne Perry. Deputy Cle
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Copies to:
John R. Molitor
Judy G. Hester
Morltor Grisham & Hester PA
9465 Counselor's Row, Suite 200
Incflanapolis, IN 46240
Cathy ElfioU
Bose McKinney & Evan LLP
2700 Fnt Indiana Plaza
135 North Pennsylvania
Indianapolis, IN 46204 '
Thomas F. Bedsole
Daniel P. King
Locke Reynolds UP
201 North IWmois Street
Suite 1000
Indianapolis. IN 46244
Richard S. Nikchevich
W.Scott Porterfield
Steven J. Yatvin
Barack Ferrazzano Kirschbaum Periman &
Nagelberg
333 Wasl Wacker Drive
Suite 2700
Chicago, Il 60606
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
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SPRINT SPECTRUM, L.P., )
)
Plaintiff, )
)
VB. )
)
THE CITY OF CARMa, 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, )
an~ )
)
RICHARD DEER. )
)
Intervenor. )
)
1 :02-ev-01133-JDT - T AS
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ENTRY ON DEFENDANTS AND INTERVENOR'S MOTIONS TO DISMISS'
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This case arises out of Sprint Spectrum, LP. rSprinf)'s efforts to Instal a
personal communications service ,PCS., antenna and equipment shelter. Defendants'
City or Carmel. Indiana, Board of Zoning Appeals for the City of Carmel and Clay
Township, and Michael P. Hollibaugh (coIIecIively, -Defendantsj and Intervenor
Richard Deer move the Court to dismiss the complaint for lack of subject matter
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'This Entry is a matter of pubflC record and is being made available to the pubflC
on the court's web site. but it is not intended for oorrunercial publication either
electronically or in paper fonn. Although the' n.ifingor rufmgs in this Entry wlR govern the
case presently before this court, this court does not conslcler the discussion in this Enby
to be sufticlenUy novel or instructive to justify commercial pubflCation or the subsequent
citation of It in other proceedings.
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Jurisdiction pursuant to Federal Rule of CivU Procedure 12(b X1 ~ Intervenor Deer
additionally moves to cfasmiss for faHure to state a claim. Fed. R. Civ. P. 12(b)(6). The
court now rules on both motions.
L Background Factsz
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Sprint and Its affiliates are in the business of providing wireless communications
services, involving the construction and operation of a nationwide PCS netwol1t. Sprint
currently holds a pes wireless broadcast license for 1M Indianapolis Major Trading
Area that is valid untB June 23, 2005. The network consists of a system of adjacent ceU
sites cen1ered around mounted antennae that enable service within a set geographical
area. On May 14, 2001, Sprint entered into a lease agreement with Dr. Edwin Zamber
in order to collocate an antenna onto a pre-existing tower on Dr. Zambel's property
previously used for "ham- racflO communications. Sprint also p1aMed to build an
equipment shelter adjacent to 1M tower. The Zamber site is located in a district zoned
a5-1 Residence District" pursuant to section 5.1 of the CannellClay Zoning Ordinance.
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sprint flied an application for an improvement location permit. aJong with buDding
plans, with 1he Department of Community Services (the "Departmentj on May 7,2001.
On or about June 15, 2001,1he Department issued the permit. On or about August 15,
2001, Mr. Deer, an Invervenor in this suit whose property abuts the Zamber site,
appealed the issuance of the permit with the CannellClay. Board of Zoning Appeals
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2'fhis ~n summarizes the aDegations of the complaint, which must be taken
as true for the purposes of Sprint.s motic:m to cflSl1liss.
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rszA 1 on the grounds that the antenna did not constitute a pennitted use under the
Zoning Ordinance (the "Zoning Appealj governing residential districts. A couple of
weeks iater, shortly after Sprint had begun buDding on the site, the Cannel Building
Commissioner issued a stop wort order on the project, and on August 24, 2001,
Michael P. Hollibaugh. the Department Director and a Defendant in this case in his
official capacity. sent a letter to Sprint revoklng the improvement location permit. It
gave as sole reason for the revocation the need to subdivide the Zamber site into two
smaller parcels, necessitating subdivision plat approval by another agency, the Plan
Commission. Sprint appealed the revocation of the improvement location permit to the
BZA (the .SubdMsion Appeal").
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After some wrangling in which the BZA's decision to dismiss Sprint's Subdivisjon
Appeal as untimely was reversed by a state court, the BZA eventuaDy hearcl both the
Subdivision Appeal and the Zoning Appea/ on the merits. On June 24, 2002, the BZA
unanimously upheld Mr. Deer's Zoning Appeal and found that the improvement location
application was wrongly approved. It issued findings of fad stating that the -Use for
which the [unprovement location permit] was granted (a commercial antenna and
unstaffed, unoccupied commercial racflO equipment shelter) is not a Permitted Use
under the 8-1 Residential Distrid and related sections of the CarmellClay Zoning
Ordinance.. (CompI., ex. F.) Thus. Sprint must seek a special use permit. or variance,
in order to complete the equipment shelter and coUocate the antenna onto the existing
tower. Similarly, on July 22.2002, the BZA rejected Sprint's SubcflVision Appeal for the
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reason stated in the August 24. 2001 revocation letter, namely, that Sprint needed to
seek subdivision plat approval prior to completing its construction on the 2amber site.
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On July 23, 2002, Sprint filed this action, alleging several violations of the
Telecommunications Ad. of 1996, a takings and due process claim under the Fifth and
Fourteenth Amendments, a takings claim under the Indiana Constitution, requests for a
writ of certiorarl under Indiana law to review the BlA's June 24 and JUly 22 decisions,
and a final claim for declaratory judgment
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IL Standard of Review
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When considering a motion to dismiss for subject matter jurisdiction under Rule
12(bX1), a court must accept as true all well-pleaded aDegations and draw all
reasonable inferences in favor of the non-movant. AfICi8-Hemandez v. Catholic Bishop
of Chicago, No. 02-2289. 2003 WI.. 373349. at "2 (7'" Clr. Feb. 21, 2003) (citation
omitted). Where a dispute exists as to jurisdictional facts, a court may look beyond the
allegations to any evidence submitted on the Issue, id., however, the disagreement In
this case concerns the significance of uncontrover1ed facts.
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III. Discussion
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A. TCA Claims
Sprint brought suit uncler the Telecommunications Ad. of 1996 rrCA i, codified
In scattered sections of TIde 47, United States eode. The TCA grants state and local
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governments the authority to regulate the placement of wireless telecommunications
structures, but as the Seventh Circuit has noted, "their authority Is not unfettered."
Aegerterv. City ofDelafield, WIS., 174 F.3cI886, 888 (r" Cir.1999~ SpeclficaDy, "they
must now support any decision to deny certain requests for those facilities with a written
opinion that is based on substantial eviclence In a written record, and they may not
unreasonably discriminate among providers of functionally equivalent services." Id.
(citing 47 U.S.C. Ii 332(c)(7)(B)(iIi). (B)(T)(I)) {Internal quotation marks omitted). The
statute also allows an action to be brought In "any court of competent jurisdiction" by
"any person adversely affected by any final action or faDure to ad by a state or local
government or any instrUmentality thereof that Is inconsistent with [5332(c)(7)],. 47
U.S.C. S 332(c)(7)(B)(v). This case revolves around whether either the decisions by the
BZA with respect to either of the BZA decisions constitutes a "final action" within the
meaning of that provision,
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The parties agree on a couple of important matters. FII'St, the BZA is the highest
administrative authority empowered under Indiana law to hear appeals of administrative
decisions under the local zoning onfmance. See Ind. Code S 36-7-4-918.1 (defining
appellate jurisdiction of state boards of zoning appeals). Sprint therefore cannot take
any further administrative appeal of the two adverse BZA decisions. Indiana law does
provide for review of board of zoning appeals decisions through the Issuance of a writ of
certiorari by the circuit or superior court of !he county in which the affected premises are
located, Ind. Code 36-7-4-1003, but Sprint does not claim to have availed Itself of that
mechanism prior to initiating this action. However, neither the Defendants nor the
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Intervenor contend that Sprint was required to exhaust its state judicial remedies in
order to bring an adion under the TeA. Such an argument could well face an uphm
battle. as several courts have invoked the legislative history of the TCA to refrain from
Imposing an exhaustion of state court remecfl8s requirement on parties seeking redress
under 1hat statute. SH. e.g., AT & T WlI8Iess PCS, Inc. v. Town of Porter. 203 F.
Supp. 2d 985. 989 (N.D. Ind. 2002) ("the term 'final adIon' means final administrative
action at the State or local government level so that a party can commence aellon
under the subparagraph rather than waiting for the exhaustion of any independent State
court remedy otherwise required.j (quoting H.R. Conf. No. 104-458. 104" Cong., 2d
Sess. 208 (1996), mprinted in 1996 U.S.S.CAN. 124,223); Laumnce Wolf Capital
Mgmt. Trust v. CIty of Femdale. 176 F. Supp. 2d 725. 727 (E.D. Mich.2oo0). But the
court need not fully address this Issue. as the Defendants do not press the argument
and resolution of the jurisdictional Issue rests on other considerations.
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Second. Ihe parties agree. or at least Sprint does not deny. that Its ultimate goal
of estabflShlng wireless telecommunications facilities at the Zamber site has not been
foreclosed by the ~ decisions. As the Defendants emphasize. those decisions
establish the procedural route Sprinl must take at this juncture in ortier to proceed with
its project it must submit a subdivision plat to the Plan Commission and apply for a
special use permit. It is reasonably clear that were the BZA to make a subsequent
Nrlng which would have the effec:t of definitively blocking Sprint's attempt to buHd its
facilities-for Instance. by denying Sprint a variance-lhe final action requirement would
be met The question now before the court is whether, at this stage in the process
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where Sprint stiD has administrative avenues open to It, either the Zoning or Subdivision
decision by the BZA quaUfies as a final action.
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Neither the statute Itself nor the case law interpreting it provide much guidance.
The TCA does not define "final action,- and the legislative history. even if credited.
offers no clues. The Defendants and the Intervenor rely on two district court cases.
Cox Commlcations PCS, LP. v. CIty of San Marcos. 204 F. Supp. 2d 1272 (S.D. Cat.
2002); Incfl8na Be, Tel. Co., Inc. v. SmilhviIJe Tel. Co., Inc. 31 F. Supp. 2d 628 (S.D.
Ind. 1998), the latter of which is readily distinguishable. Indiana Bell involved a suit by a
telecommunications company invoking a provision of the TCA to force arbitration of
Interconnection agreements it had entered Into with rural telephone local exchange
carriers. These agreements were possibly subjed to modification as a consequence of
the passage of the TCA In 1996. The Indiana UtIlity Regulatory Commission rJURCj
dismissed the plaintiffs petition for arbitration, which the court held was not a final
action pursuant to 47 U.S.C. S 252(e)(6) because the lURe had not denied the request
on the merits but rather consolidated It with an on-going factual investigation in
furtherance of Its portey-making duties under the TC,6., Id. at 637. In this case. by
contrast, the effect of the BZA decisions was not postponement of the issues pending
further factual findings. but, instead, a definitive ruling as to those matters (the need for
submission of a subdivision plat and special use pennlt application).
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Cox Communic:aIion8 bears closer resemblance to the case at hand, but stm
c:Ioesnot answer the statutory question posed herein. In Cox. the plaintiff (also Sprint)
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informed the City defendant that It wished to use the City's public rights of way to instaD
wireless telecommunications facilities. The City notified the plaintiff I would have to
foUow the procedures for obtaining a Conditional Use Permit rCUf'1. The plaintiff
believed this requirement to be In violation of its state and federal rights, and sued the
City under the TeA. The court found that, at a minimum. the term "final action. entaDs
a decision by the appropriate local authority, and "because the defendants have not
rejected Sprinfs application for an excavation pennlt or a CUP. . . . no decision or final
action has been made on Sprint's request.. Id. at 1277 (emphasis in original). Sprint
correctly notes that the plaintiff in Cox Communications filed in federal court without
contesting the City's Instructions in any higher administrative foNm. It is true that. as
evidenced by the above quotation, the court seemed to think that the "final action"
requirement of i 332(c)(7)(B)(v) caDed for an ultimate determination as to the
company's ability to place Is facilities. That result would favor the Defendants and
Intervenor. But the rationale given by the court-lack of decision-only supports the
weaker conclusion that the City's opinion with respect to the procurement of a CUP did
not constitute a final admlnislratlve deelsion. Of importance to 1his case. the court did
not explain why a final determination by a municipal authority ~n 8 procedural
matter-also 8 declsion-Would not satisfy the statute. This gap In the reasoning limits
the usefulness of Cox Communications to the Defendants and Intervenor's cause.
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Sprint, for its part, cites Jneflana state court decisions holding that a plaintiff
bringing an as-applied constitutional chaDenge to 8 zoning ordinance does not have to
first aPPlY for a variance before seeking relief in Incfl8n8 courts. See Bd. of Zoning
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Appeals of the CIty of New Albany v. Koehle" 194 N.E.2d.49 (Ind. 1963); Church of
Christ in Indianapolis v. Metro. Bd. of Zoning Appeals of Marion County, 371 N.E.2d
1331 (Ind. Ct. App. 1978). The relevance of this fine of cases for the c:onstructIon of a
term in a federal enactment is not evident If Sprint is only trying to show that Indiana
law pennlts appeals to the proper state court from any decision of a board of zoning
appeals, even on a penultimate or procedural issue, that much Is clear from the
certiorari statute. "Each decision of. . . . the board of zoning appeals is subject to
review by certiorari.- Ind. Code S 36-7-4-1003. But plainly 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.
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In fact. It is precisely because a contrary constNction woulcllnvolve the federal
courts in zoning disputes before the ultimate question of the plaintiff's ability to develop
his property has been settled that the court believes the term "final action- in S
332(c)(7)(B)(v) should be reserved to include solely those administrative decisions
which fully dispose of a party's attempt to place, construct or modify personal wireless
service facilities. ThIs is how the Supreme Court has applied the concept of finality to
zoning cases in the takings context, and the court sees no reason to diverge from that
understanding here. See WilflalnSon County Regional Planning Comm'n v. Hamilton
Bank of Johnson CIty, 473 U.S. 172, 186-94 (1985) (takings claim not ripe because,
inter alia. respondenfs failure to petition board of zoning appeals for variance meant
that no final administrative decision hacI been taken with respect to respondenfs ability
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to develop its land~ This Inte.p'",tation, which wouJd defer access to federal court until
an reasonably avaBable administrative paths have been exhausted. has the merit of
preserving the autonomy of local authorities to administer and interpret their own zoning
laws, in accord with the Seventh CiJcult's statement of Congress' purpose in passing
IheTCA:
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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 nations
telecommunications network. But that is what It did when It passed the
TeIeconununlcations Ad. of 1996, and lis not our job to second-guess
that poIitlcal decision.
Aegerter, 174 F.3d at 892. So, for example, were the BZA to subsequerdly grant Sprint
the special use permit, It would moot the need for federal court Intervention.
Conversely, a denial by the BZA would constitute a "final action" and the issue would be
ripe for adjudication. As the Court in WiJIlamBOll County noted, "resort to the procedure
for obtaining variances would result in a conclusive determination by the Commission
whether It would allow respondent to develop the subdivision in the manner respondent
proposed." Williamson County, 473 U.S. at 193.
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Sprint replies tt:aat this interpretation cannot be right because It would sDow
boards of zoning appeals to evade the statute by erecting an endless series of
procedural obstacles in the way of a wireless service provider. The court notes, first,
that the aDegalions do not indicate such a scenario has ocaJrrecI in this case, nor that it
would be futile for Sprint to pursue its remaining administrative options. AQd second.
were a local authority to react in such a manner, an aggrieved party would not be
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without recourse. because the TCA also creates a right of action br a person adversely
affected by a "faDure to act" on the part of a state or local government 47 U.S.C. S
332(c)(7)(B)(v); see also S 332(c)(7)(B)(ii). Thus. an administrative entity which
needlessly multiplied the hurdles to obtaining a final disposition of a service provider's
proposal could be found liable under 1he TCA for failure to act. · As the [TCA) itself
recognizes. inaction can take not onfy the form of complete inactivity. but also the
absence of any meaningful consideration of an app6eation. Otherwise, a local zoning
authority could indefinitely delay an application by a 1Iuny of hearings, requests, and
c:ounter-submlssions that effectively mask a denial: Nextel Partners of Upstate New
York, Inc. v. Town of Canaan, 62 F. Supp. 2d 691. 694 (N.D. New York, 1999)
(rejecting argument that "failure to acr claim under TCA not ripe because application
stiR in information-gathering stage).
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Finally, lack of a final action Is not simply a failure of an element of the claim but
divests the court of jurisdiction over the matter. Both parties have proCeeded on that
assumption. and as the statute makes a court's authority to hear a case under the TCA
dependent on the entry of a final action. see 47 U.S.C. S 332(e)(7)(8){v), it appears to
be correct. See 1nd'lSna Bell Tel.. 31 F. Supp. 2d at 643-44 (lack of reviewable agency
decision deprived district court of jurisdiction over TCA claims).
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a TaJdngs Claim
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Based on the revocation of the improvement location. permit, Sprint has also
brought a federal taIdngs claim. which the Defendants and Intervenor argue faDs to
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satisfy ripeness standards for takings claims. Sprint responds by citing an Indiana case
holding that a plaintiff does not have to exhaust its administrative remedies before a
board of zoning appeals to raise a temporary takings claim in state court. See AleS
Plan Comm'n of Evansvi7le v. Major, 720 N.E. 2d 391 (Ind. Cl App. 1999). However.
the proper source of authority for evaluating the ripeness of takings claims in federal
court is federal law. The Supreme Court in Williamson County Regional Planning
Commn v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985) has delineated the
ripeness requirements imposed on Takings Clause litigants. First, there must be a
"final decision" on the part of the governmental entity charged with implementing the
relevant regulations-here, as there, the zoning board. /d. 81186. See also Danie/$ v.
Area Plan Comm'n of Allen County, 306 F.3d 445, 454 (7'" Cir. 2002). In Williamson
County, the respondent had submitted a proposed plat for development of its property,
and the local p1aMing cormnission JUIed that several aspects of the plat violated the
zoning ordinance and subdivision regulations. Id. at 187. The respondent did not apply
to the board of zoning appeals for variances that would have permitted the proposed
development, but instead med a takings claim in federal court. /d. at 188. Overturning
a jury verdict in favor of the respondent, the Court held that Its complaint was
premature, because the govemment entity affected with the implementation of the land-
use regulations had not been presented with a request for variances. and, thus, issued
no conclusive ruling on whether the zoning ordinance would apply to deprive the owner
of all the economic benefit of the property. Id. at 194. Because Sprint has faDed to
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seek a special use permit or subdivision plat approval, simBar to the respondent in
Williamson County, the same result holds here.a
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It is even more clear that Sprint has not satisfied the second WiDiamson County
ripeness requirement, the exhaustion of all state procedures for obtaining
compensation before filing in federal court. -(IJf a State provides an adequate
procedure for seeking just compensation. the property owner cannot claim a violation of
the Just Compensation Clause until it has used the procedure and been denied just
compensation." The Court in Williamson County held that the respondent had not
exhausted state remedies because of the avaDabnity of a state inverse condemnation
right of action to obtain just compensation, which the respondent had neither utBized
nor otherwise shown 10 be Inadequate. Id. at 196-97. The Indiana Code likewise
contains an inverse condemnation provision, see Ind. Code ~ 32-24-1-16, however, the
complaint does not indicate any attempt to invoke that prooedure or otherwise
demonstrate Its Inadequacy.. The court thus concludes that Sprint has not exhausted
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aSprint distinguishes Williamson County on the grounds that in this case -Sprint
has chaDenged the adminlstrative procedures that the Defendants argue Sprint has
faDed to exhaust as not Jequired by the Zoning Ordinance.- (Defs. Resp. Br. at 11.)
But Sprinfs disa9reement with the BZA's Interpretation of the Zoning Ordinance cannot
ripen what would otherwise be a premature takings claim. At best. and although Sprint
does not make this clear, Sprint's objection could be construed as an assertion that the
procedural steps tbemseJves effect a temporary taking of property. In that event, even
If it may be said that the aZA decisions are final decisions of the appropriate
government authority as to the necessity of 1hose procedures (but not the ultimate
question of the use of the property), Sprint would sliD fail the second part of the
Williamson County test for ripeness of takings claims, the exhaustion of state
proced~res for obtaining just co~sation, as discussed below.
~ch an attempt would 6kely not fare well, as Sprint aReges sustaining aetuaI
(continued...)
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the state procedures available to provide compensation for takings of property. See
Fo1'$eth v. Vi1I8ge of SuSS81C, 199 F.3d 363, 373 (711 Cir. 2000) (takings claim premature
beCause, inter alia, plaintiffs not bring state inverse condemnation suit). Sprint's failure
to exhaust its state remedies strips the court of jurisdiction to entertain the takings
claim. See Suitum v. Tahoe Reg7 Planning Agency, 520 U.S. 725. 733 n. 7 (1997).
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4(...continued)
hann and seeks monetary damages (Compl.1 n) (thus distinguishing this case from
Daniels v. Alea Plan Commission, 306 F.3d 445 (7'" Clr. 2002)) and the Indiana Inverse
condemnation statute may be used as a vehicle to bring a temporary takiligs suit based
on revocation of an improvement location permit, see Me Plan Comm'n of Evsnsvi11e
v. Major, 720 N.E.2d 391 (Ind. Cl App. 2000).
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rv. Conclusion
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As cflSCUSSed above, the court lacks jurisdiction over Sprints TCA and takings
claims, and since Sprint has pled no other causes involving a federal question on which
to hang supplemental jurisdiction,' this court has no power to hear the remaining state
claims. The Defendants' and Intervenor's motions to dismiss for lack of subject matter
jurlscflCtion Is thus GRANTED, aDeviating the need to consider the Intervenor's motion
to dismiss for faOUre to state a claim.
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ALL OF WHICH IS ORDERED this 28" day of March 2003.
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TInder, Judge
s District Court
&sprint's Complaint fISts a Fourteenth Amendment due process claim arising out
of the revocation of the buDding permit which neither party aUudes to In the briefs. (See
Comp!. " 70-71.) The court notes that this claim also requires a showing of the
inadequacy of state law remedies. see Doherty v. CIty ofChJcago, 75 F.3d 318, 326 (J"
Cir. 1996). and 80 jurlsdlcllon over It would be lacking for the reasons expressed in the
diselJssion of the takings claim.
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Copies to:
John R. Mofftor
Judy G. Hester
Morllor' Grisham & Hester PA
9465 CounseJots Row, Suite 200
Indianapolis, IN 46240
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Cathy EDiott
Bose McKinney & Evan LLP
2700 FIrst Indiana Plaza
135 North Pennsylvania
Indianapolis, IN 46204
Thomas F. Bedsole
Oaniel P. King
Locke Reynolds LLP
201 North Illinois Street
Suite 1000
Indianapolis, IN 46244
RIchard S. Nikchevich
W.SCott Porterfield
Steven J. Yatvin
Barack Ferrazzano Kirschbaum Perlman &
Nagelberg
333 West Wacker Drive
Suite 2700
Chicago, IL 60606
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.~EUCl..A Y BOARD OF ZONING APP i-S
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Cannel. IncUana
r;;, Docket NC). :
Petitioner:
Scrint SDeCtrum. LP
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Petitioner:
SDnnt Spectrum. LP
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Carmel,lndlana
Docket No. :
Petitioner:
Sorim Soec:trum, LP
FINDINGS OF FAcT. APPEAL (Banet Shaetl
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ARMEUCLA Y BOARD OF ZONING M'P ~S
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Carmel, Indiana
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Docket No. :
Petitioner.
SDrint SDectrum. LF!
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FINpINGS OF FACT. APPEAL (Ballot Sheet} .
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A-23
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.j"P..MEUCLA Y BOARD OF ZDNlHG APP . .i-S
. . Carmal. Indiana
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Docket No. :
Petitioner:
SDrint SDec::trum. L?
FINDINGS OF FACT. APPEAL (Ballot Sheet)
1.
2.
3.
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4.JJb~. . }J1if I/Ii'trr..m= ~
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5.
. 6.
DATED THIS
DAY OF
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-:-...O-..t -.:
Board Member
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A-24
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....ARMEUCLAY BOARD OF ZONING APP:ALS.
CARMEl, INDlANA
Docket No.:
A.97-0~
Petitioner:
RICHARD'DEER
FINDINGS OF FACT - APPEAL
1.
The Petitioner haS' properly foDowed the Appeals Procedures outlined in Ordinance Z-1.60, Section 30.2,
et seq. .
Nature of action appealed from:
Issuance of an Imorovement Location Permit rNo.627.01) I Refusal to revoke an Imorovemen1 Location
Permit (No.62.7.0n
2.
Agency:
Official:'
Deoartment of,Community Services
Director
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Date of Decision:
June 15. 2001 I Auoust 14. 2001
3. . Attached are copies of the pertinent Ordinance sectior:ls ymich are the subject of the Petitioner's Appeal:
Section 3.7 - Definition Of -Antenna-
4.
seCtion 5.6... S-1 Residence District: Chaoter 25. Adcfltional Use Reoulations
The written materials ~ubmitted to ~e Bo~d do support the Petitioner because':
the use for which the ILP was oranted (a commercial antel"lna and unStaffed. unoccuoied commerCial
radio eauioment shelter) is not a Permitted Use under the S-~ Residential District and related sections of '
the CarmeVCI~v Zonina Ordinance: thus. the ILP was imorooerlv issued ~d should bEt-~evoked. .
, .
The Agency (DOCS) and.Official (Director>" should not be affirmed.:
The work on the premises upon. which appeal has been filed shaD be stayed.
DECISION
IT IS TIiEREFORE the decision of tle CarmeVClay Board of Zoning AppealS that Appeal Docket No. A.97-D1
is granted, subject to any cond'ltions stated in tf:le minutes of this Board, which are incorporated herein by
reference and made a part hereof. " ' .
5.
6.
ADOPTED this 24th day of
~t-/2.'
CHAIRPERSON, 'CarmeVClay Board of Zoning Appeals
. June
SECRET AR.Y, CarmeJ/Clay Board of Zoning Appeals
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C:\NrPortbi'IN01\MSTUCKEY\43314_ 1.DOC
30ard are Dsted on the back.
~rese~e to sign.)
A-25
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CARMEUCLAY BOARD OF ZONING APPEAlS
Carmel, Indiana
Docket No. :
K-97-01
Petitioner:
. ltic.h.ard Deer
FINDINGS OF FACT. APPEAL (Ballot Sheet)
1.
2.
3.
5.
6.
DATED THIS
24th
June
02
,20 .
DAY OF
A-26
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CARMEUCLA Y BOARD OF ZONING APPEALS
Carmel, Indiana
Docket No. :
.!-97-01
Petitioner:
Richa.rd Deer
FINDINGS O~ FACT -APPEAL (BanDt Sheet)
1.
2.
3.
5.
6.
DATED THIS
24th
June
02
,20
DAY OF
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A-27
Board Member
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CARMEUCLA Y BOARD OF ZONING APPEALS
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Carmel, Indiana
Docket No. :
A-97-01
Petitioner:
Ric:.hs.rd De.e.r
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. FINDINGS OF FACT. APPEAL (Bailot Sheet)
1.
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2.
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6.
DATED THIS
24th
DAY OF
J'tme.
02
.20
A-28
'--, C,lJ2
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Board Member
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CARMEUCLA Y BOARD OF ZONING APPEALS
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Carmel, Indiana
Docket No. :
A-97-01
Petitioner:
:Richard Deer
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FINDINGS OF FACT - APPEAL (Ballot Sheetl
1.
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3.
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5.
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DATED THIS
24th
DAY OF
Jutle
(:jr~~
Board Mem
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A-29
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CARMEUCLAY BOARD OF ZONING APPEALS
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Carmel, Indiana
Docket No. :
A:-97-01
Petitioner:
Richard Deer
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FINDINGS OF FACT -APPEAL (Banot Sheet)
1.
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6.
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24th
DAY OF
June
02
,20_.
DATED THIS
A-30
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Boar Member . ~ l
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