HomeMy WebLinkAboutNo. 03-2216 US Court of Appeals-Supplemental Appendix
w
w
No. 03-2216
Ie)
I
.---- ....--
/'('. ,-~ i' /-._~ :~,
UNITED STATES COURT OF APPEALS ~\/
FOR THE SEVENTH CIRCUlT RECFIVED
:.~ .JUN 124 2003
,--- DOCS
v',
\~. ,
../'-,
" -
p
SPRINT SPECTRUM L.P.,
I. rJ'
I "
Plaintiff-Appellant,
t)
v.
l)
THE CITY OF CARMEL, INDIANA,
THE BOARD OF ZONING APPEALS FOR
THE CITY OF CARMEL AND CLAY TOWNSHIP,
and MICHAEL P. HOLLIBAUGH, in his capacity as
Director of the Department of Community Services, Carmel, Indiana,
Defendants-Appellees.
t).
Appeal from the United States District Court
For the Southern District of Indiana
Case No.: IP 02-1133
The Honorable John D. Tinder
)
.;
SUPPLEMENTAL 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
~
I
. I
..1
Q
u
o
TABLE OF CONTENTS
~
Document Page
1. Complaint for Injunctive, Declaratory, Mandamus and Other A-31
Relief
~ 2. Photo simulation of the Sprint Antenna A-51
3. Section 30.1 ofCarmeI/Clay Township Zoning Ordinance A-52
~
~
~
-
~
..
~
~
180672 _1.DOC
Q
;,
'U
o
~
r'~\ r! ~:"'.!1;ii
. \.' ..... .. :' .
IN THE UNITED STATES DISTRICT GO~T . ."
FOR THE SOUTHERN DISTRICT OF INDIANA ... ,..' , . r. ':
INDIANAPOLIS DMSION \";' .1'\1- ~J i L ;..[. ...J
Q
)
)
)
)
. )
. ) .
THE CITY OF CARMEL, INDIANA; IP 0 2 - 1 1 3 3
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, Can;nel, ~diana, )
)
)
SPRINT SPECTRUM L.P.,
a DelaWare limited partnership,
-'l'-'~:i illS TrciCT
SOUl: :..r.. "~tJt. .
!.I. 1 i'~ 0 \~, . j. G S
.....: ,.. n~\G'
1 ....-.. '" ., I" Ii , ,
.. :.:..i. .." '.' ~.:'."o
Plaintiff,
Case No.
. '-
v.
c
T I K. ~
Q
~
Defendants.
r;;
COMPLAINT FOR INJUNCTIVE. DECLARATORY. MANDAMUS
AND OTHER RELIEF
. Plaintiff: Sprint Spectrum L.P. ("Sprint Spectrum" or "Sprint"), by its attorneys,
~ complains against defendants, the City. of Cannel, Indiana (the "City"), The Board of Zoning
~
. I
.Appeals for the City.ofCarm~1 and Clay Township {the "Board"), and Michael P. Hollibaugh, in
his capacity as Director of the Department of Community Services, Cai:mel,. Indiana (hereinafter
"Director") as follows:
,
NATURE OF. THE ACTION
~
1. This action' arises out oftbe Director's pmported term~natjOD of an improvement
location permit (the "Building Permit,") to collocate a wireless communications antenna facility
. .
~
(the "Sprint Antenna") on a pre-existing ham radio antenna t~wer (the "Existing Tower'') located
~
573171_1J:lOC
A-31
o
u
o
at 1388 Queens Way, CaIIIlel, Indiana (the "Zamber Site), and the affirmation of that action by
~
the Board under two separate appeals filed with the Board. The Sprint Antenna is necessary to
,
provide wireless telephone (i.e., cellular telephone} and other communications services to
~
individuals living or working in, or traveling through, the Indianapolis metropolitan area. In
revoking the Building Permit, the City violated the Federal Telecommunications Act of 1996, 47
. .
u.S.C: ~ 151, et. seq. (the "TCA"), the Constitutions of the United States and the State of Indiana
. .
~
arid other applicable State law. The City's actions entitle Sprint Spectrum to, inier alia,
injunctive, declaratorY and mandai:nus relief ordering the Defendants to allow the construction
~ and op~tion of the Sprint Antenna.
PARTIES
~
2.
Sprint Spectrum is a limited partnership organized and existing under the laws of
the State of Delaware, with its principal place of business in Westwood, Kansas. Sprint
Spectrum and its affiliates, doing business as Sprint. PCS, are building and operiting a .
~
nationwide Personal Communications Services C-'PCS) network across the United States.
3; The City is incorPorated under .the laws of the State of Indiana. The City acts on
~
land use matters relating to the Sprint Antenna through the Director and the Board. .
. . .
-
4. The Director is a resident of the State of Indiana and is the Director of the
Department of Community Services, Carinel, Indiana (the "Dep~ent"), a position .existing
j
under the laws of the State of Indiana.
5. The Board ~s the board o~ zoning appeals for the City of Carmel and Clay
Township, Indiana, and is organized and. existing under the laws of the state of Indiana.
A-32
5T.l171_1.I>OC
2
Q
v
o
JURISDICTION. VENUE AND EXPEDITED PROCEEDINGS
~
6. This action arises under the telecommunications laws of the United States, Title
47 V.S.C. SS 151, et. seq. (inc1udiJ:lg the lCA)~ :the Vnited States Constitution and the
~ Declaratory Judgment Act, 28 V.S.C. SS 2201, et. seq.
7. The Court has jurisdiction oftbis action by virtue of28 V.S.C. ~ 1331.
8.
This Court has supplemental jurisdiction over the Indiana state law claims'
~
pursuant to 28 V.S.C.. ~1367.
9. Venue properly lies in the.South~ District of Indiana (the "District") because the
~ claims arose in this District and the defendants reside in this District. 28 V.S.C. S 1391(b).
10. Sprint Spectrum is entitled to have its Complaint heard and decided on an
I
~
expedited basis pursuant to.47 V.S.C. S 332(cX7)(BXv).
BACKGROUND FACTS
A. Sprint Spectrum's PCS Ne~ork
~
11.
Sprint Specthlm, along with its affiliates, is a communications venture committed
~
~ providing a single integrated offering of,wireless telephone an~ other co~unications services
by building a natio~ wireless ~etwork using PCS tecl?nology'. . a new gf?IleratioD of wireless
service that uses digital tr-lnsmission to '~prove avaliable telecommunications services. This
..
network ~mpetes with traditional "land line" telephone service, an~ J:lrovides a vital alternative
communications system for business, personal and other uses: including the handling of "911".
type emergency communications.
~
12. On or about June 23, .1995, Sprint Spectrum, through a partnership, was the
.. .
successful bidder at. the auction held by the FCC for pes wireless broadcast licenses in the
A-33
"
mJ'7I_I.DOC
3
Q
Q
o
Indianapolis Major Trading Area reMTA''), which includes the City of Carmel. The license
~
granted to Sprint Spectrum expires June 23, 2005.
13. In order to meet its continuing obligations under its licenses from the Federal
~ Communications Commission ("FCC'') and to serve its ~mer base, Sprint Spectrum must
develop and maintain a system of "cell sites"- to serve portable wirele~s telephone and other
~
communication haildsets. These "cell sites" consist of antennae mounted on a pole, building or
other structure, connected to small equipment located near the .antennae. Each cell site handles
wireless communications within the surrounding geographic area or "cell."
Q
14. "- To maintain effective, continuous, uninterrupted service to a PCS telephone user
. .
traveling in a given area, there mUst be a continuous in~connected series of celis, which overlap
can properly interact with the ~unding cell sites and thereby provide seamless, reliable
- -
~
coverage: Each antenna facility has a limited maximum coverage area, the extent of which varies
. .
depending upon several factors including its beight, the local topography and the heights of the
adjoining antennae, structures and tree cover.
~
B.' The. Site And Application Process
;;.
15. The ~ber Site is criti.ca1 to ~e overall engineering and"techni,cal plan of Sprint
Spectrum's network in the Indianapolis MTA. The Zamber Site is .designed to remedy the gap in
Sprint Spectrum's coverage, which gap results in Sprint Spe~'s customers exp~rieDcing
"blocked" calls (i.e., calls that cannot be sent or received) and "dropped" calls (i.e., calls that are -
~voluntarily disconnected). Without the Zamber Site, Sprint Spectrum is unable to provide
s~ess, reliable PCS service to a porti~n of the City, including the area roughly bounded by
mlTl_IJ:lOC
4
A-34
Q
u
o
12~ Street on the north, b;: Spring Mill Road on the e~ by 1 O~ Street on the south and by
~
Town Road on the west.
16. . Sprint Spectrum carefully selecte~ the Zamber Site as an appropriate location for .
~ the Sprim Antenna only after considering other alternatives, none of which was viable for a
varietY of. reasons, including, without limitation, technical, zoning, lease availability and
~.
compatibility with existing land uses. Perhaps most not$ly, tlie :Zamber Site not only met '
exacting engineering requirements, but was already improved with the Existing Tower, thereby
having the benefits of (i) the avoidance of construction of a new tower in an area comprised
Q primarily of single family homes and (ii) conformity with the City's zoning ordinance (the
. .
.
"Zoning Ordinance'') as a "permitted use~ thereunder. Sprint Spectrum determined that, if it had
not been able to collocate on the Existing Tower, no other suitable existing towers or structures
~
were available within its requisite search area, and Sprint Spectrum therefore would ha~e had to
build its own tower support structure to meet its coverage requirements.
~
17.
On or about May 14, 200 1 ~ Sprint Spectrum entered into a lease agreement with
the owner of theZamber Site and the Existing Tower thereon, Dr. Edwin Zamber ("Dr.'
Zamber''), pursuant 'to which Sprint Spectrum leased space ~ order to collocate the Sprint
~
Antenna to the EJ?sting Tower.
18. The Existing Tower was coilstructed over ten years ago by Dr. Zamber and is
utilized by him for "ham" radio communications purposes. The Existing Tower is approximately
135 feet tall and ~ three sets of "side-arm" antenna (each approximately 44 feet in total length,
i,e:, approximately 22 feet on eacli side of the tower) that are . mounted horizontally on the
~g Tower. As contemplated by the Building. Permit, Sprint Spectrum proposed to utiliZe
specia1low-profile ("flush moun~ed") antennae at the Zamber Site and to mount the same on the
m"'_I.DOC
5
A-35
~.
w
o
Existing Tower at an elevation of approximately 100 feet above grade level. Flush-motmted
~
antennae ate utilized in very few cell sites and reduce the general visibility of an antenna
installation. A photo simulation depicting the Existing Tower (including the existing side arm
r;jJl ham radio antennae), and the proposed f1ush-mo~ting of the ~prjnt Antenna thereon, is attached
to this complaint as Exhibit A. '
19. The Zamber Site is zoned "S-l Residence 'District. " Section lQ-~O of the Zoning
~
Ordinance proVides that the collocation of an antenna facility on an existing tower facility is a
"p~tted use." Section 1 0-30(b) provides, in relevant part, as follows: .
~
(b) Permitted Uses:
Antenna, if collocated on an existing or previously approved tower
20. .On or about February 22, 2001, a contractor for Sprint SpeCtrum ~ntacted the.
~
Department to discuss the Sp~t Antenna. In connection with those discussions, the Department
staff ~owledged that the Sprint Antemia was a permitted use, and ~sted that Sprint'
~
Spectrum house its .ground level equipment in 11 brick clad equipment shelter (the "Shelter'').
.
The Shelter's architecture and style duplicates.~e design an~ chaJ-ac'ter of Dr. Zamber's existing
home and pool house, and it meets all' applicable zo~g req~ents, including height and
setback. AS a part of the aw.roved plans and specifications for the Sprint Anterm.a, Sprint
Spectrum agreed'to landscape the area smrounding the Shelter.
21. On or about April!7, 2001, Sprint Speclrum, through a contI'a.ct!:>r, attempted to
. :file an application for. an ,improvem~t location permit and building plans with the Department.
On or about May 7,2001, Sprint Spectrum submitted ~ new application and revised plans with
the Department.,.
mJ7J_I.noc
6
A-36
~
o
o
22. On or about June 1St 2001, the Department issued the Building Permit for the
~
Sprint Antenna. The Building Permit bears identification number 2001.0627.B, and a copy of
the same is attached to this complaint as Exhibit B.
~
23. . On or about July 9, 2001, Sprint Spectrum engaged Q Serve Communications ("Q
.
Serve") as the general contractor for the installation of the Sprint ~tenna.
24. On or abo~ August 6, 2001, Q Serve, pursuant to the Building Permit, began
~.
construction of the Shelter. The Shelter's foundation and all four block walls have been
conStructed. The. brick veneer of the' Shelter is partially" complete apd other necessary .building
~ materials have been delivered to. the Zamber Site.
c. The Department Revokes Sprint Spectrum's Building Permit.
w
25. On or about August 15,2001, Richard Deer ("Mr. Deer"), an owner ofprop~rty
adjacent to the Zamber Site,:flied an application for an appeals action with the Boam objecting to
the issuance of the Building Permit on the grounds that the Sprint Antenna allegedly did not
~
constitute a perriritted llSe under the City's zoning ordinance (the "Deer's Zoning APPeal'').
26. On or about August 15,2001, Jeff Kenda11t Building Commissioner for Canne4
issued a stop work order on the project.
27. Without notice or hearing, by letter dated August 23, 2001 and delivered to Sprint
Spectrum's contractor on August 24~ 2001, the ~ctor purpOrted to revoke Sprint SpeCtrum's
Building Permit (the ''Revocation L~tter"). The Revocation Letter sets forth but one basis for
the purported revocation:
This office has determined that, prior to the" issuance of a pennit
for the proposed ocEquipment Shelter" on "the '~e Area" (as
descnDed ~ your Application for [Building Permit]), the "Parent
Tract" should haye been ~vided into two (2) or smaller parce~.
Under Chapter 3 of the Carmel Clay Zoning Ordinance, this
5T.J 1'71_1.IXIC
7
A-37
~
Q
o
Q
constitutes the subdivision of land requiring plat approval ~y the
Plan Commission.
At no time prior to its receipt of the Revocation Letter had Sprint Spectrum been informed of any
alleged need for plat approval by the Plan Commission.
~
28.
sprint Spectrum incurred substantial site development expenses through the date
of receipt of the Revocation Letter, and cannot utilize the .?am.ber Site for communications
~ pmposes due to tb,e City' s actiOD.s~
29. On information and belief, Sprint- Spectrum and other cellular telephone ~ce'
. providers have obtained. building pennits from the City for installation of antennae' and
~
equipment shelters without having to ~bdivide the relevant property or obtain any subdivision
plat approval, and \\jthbut having ~o obtain any variance, special use or similar zoning approval
. .
~ 10 collocate on an existing antenna tower.
D. Sprint Spectrum Appeals The Revocation Letter-And Deer's Zoning Appeal Is Put
"On Hold."
~
30.
Sprint Spectrum filed an appeal of the revocation of its Building Permit with the
. .'
Board.on Monday, September 24, 2001, seeking a reversal of the Director's purported revocation
- .of the ~uilding Permit oIi'subdivision con1rol grounds (the "Sprint's Subdivision Appeal'').
31. Around that time, the BoaTd indefinitely deferred its hearing of Mr. Deer's Zoning
Appeal, apparently due to the issuance of the Revocation Letter and/or the filing of Sprint's
Subdivision Appeal.
32. On November 15,2001, Mr. Deer'filed a motion to di~i!=:s Sprlnfs Subdivision
Appeal on grounds that the appe~ was not tim~ly filed under Section 10-131 (alk/a Section 30.1)
. of the Zoning Ordinance.
5T.l1'71_I.IlOC
A.38
8
~
,0
o
. .
33. In his mation to dismiss, :Mr. Deer argued that Sprint Spectrum failed to file its
~
appeal in a timely manner and that the method of computing time set forth in, Trial Rule' 6(A) did
not apply to the 30-day provision of Section '30.1. According to Mr. Deer, Sprint Spectrum's 30
~ days to appeal began 11JIlDing on the date of the Revocation Letter - ...; August 23, 200 1 - - rather
. . .
~ the date the letter was received or the day after that date. Mr. Deer also argued that, even if
. .
the last day for Sprint Spectrum to file its appeal was Saturday, September 22, 2001 and City
~
T
offices were closed, Sprint Spectrum did not have until the following Monday (September 24,
~
. 2601) to fiJe Sprint's Subdivision Appeal.
34. After hearing argument on November 26, 2001, the Board granted Mr. Deer's
motion to dismiss Sprint's Subdivision Appeal as untimely. The B.oard did not hear or rule on
the merits of Sprint's Subdivision Appeal.
~
35. On December 21, 2001, Sprint Spectrum appealed the Board's denial of Sprint's
. .
Subdivision Appeal to the Hamilton County Circuit Court, in cause number 29C211 0112CP
1202 (the ~Sta.te Court Case").
. .
. .
36. On June 18, 2002, the Hamilton CoUnty Cirtuit Court ruled in the State Court
Case that the Board had improperly denied Sprint's Subdivision.Appe8l and remanded Sprint's
Subdivision Appeal to the Board for further hearing. A copy o~the Court's Qpinion in the Sta~
Court Case is attached as Exhibit C.
.37. On July 22, 2002, the Board :finally.heard Sprint's Subdivision Appeal. No
. .
substantial evidence was submitted at the hearing in support of the revoCation of the Building
I
Permit on subdivision gro:unds, yet Sprint Spectrum introduced substantial evidence that
supported its appeal.
ml7l_I.tlOC
A-39
9
~
o
o
38. At the July 22, 2002 hearing, the Board voted to .deny Sprint's Subdivision
~
Appeal. In doing so, the Board found that the Building Permit was improperly issued for the
reason (failure to obtain subdivision approval) set forth in the Revocation Letter. A copy of the
j;) Board's findings offact denying Sprint's Subdivision Appeal i.s ~hed hereto as Exhibit D.
E. The Board Hears Deer's Zoning Appeal
~
39. . Following th~ Hamilton County Circuit Court's ruling in the State Court Case, the
Board heard Deer's Zoning Appeal. The Board first heard Deer's Zoning Appeal on June 6,
2002, at which time the three Board members present voted 2-1 to grant Deer's Zoning Appeal.
!;l However, under local procedures, three affirmative votes.were required to apProve an appeal.and
the matter was continued to the Board's hearing on June 24, 2002.
~
40. At the June 24, 2002 meeting of the .Board, five members were present. No.;
substantial evidence was submitted at the hearings in support of Deer's Zoning. Appeal, yet
Sprint Spectrum introd'Qced substantial evidence that supported.its position. Moreover, the
. " .
~
Department Staff introduced a repqrt concurring with Sprint Spectrum's position. A copy 6fthe
Department's Staffreport is attached hereto as Exhibit E.
41. . At the June 2:4,.2002 hearing, the Board lm::ln;mously voted to approve Deer's
Zoning Appeal. A copy of the Board's findings of facts granting Deer"s Zoning Appeal" is
attached hereto as Exhibit F.
F. Ripeness And :IJ:'reparable Harm
. .
42. Sprint Spectrum now seeks review of the J:?irector's revocation of the Building -
Permit, as affinned- by the Bo~d in its grant of' Deer' s Zoning Appeal and as ~ed by the
Board in its denial of Sprint's Subdivisio.n Appe~. Said tulings of the Board constinite :final
. "
actions and are ripe for determination by the Court.
ml71JIlOC
A-40
10
~'
U'
Q.
43. The revocation of the Building Permit prohibits Sprint SPectrum from siting a
~
facility necessary to its provision of continuous and uninterrupted service and, therefore, Sprint
Spectrum cannot carry out its federally-imposed obligation to provide wireless
~
telecommunications service to the MT A under its license. The FCC granted Sprint Spectrum its
. '
license to provide pes service intending and requiring that such service would be in place as
~.
soon as possible. The permit denial has adversely impacted Sprint Spectrum's ability to fulfill
this- federal goal and caused Sprint SpectrUm to suffer a loss of consumer goodwill and critical
market share. The, TCA was enacted precisely to prevent such unf~ situations and to facilitate
~ the rapid deployment of valuable advanced technologies.
44. The FCC license purchased by Sprint Spectrum is an asset with a limited life.
Therefore, each day of delay irrevocably deprives Sprint Spectrum of a portion of the value of
~
the MfA license.
45. As a result of the City's violation of Sprint Spectrum's federal statutory rights,
Sprint Spectrum has suffered and will. con~ue to suffer irreparable harm. If Sprint Spectrtim is
unable to place a facility at the Zamber Site, there will ~ gaps in coverage in its network. Public
. . ,
safety may ,be impaired' as a result of such gaps" as motorists. and citizens who use the Sprint
Spectrum service for 911 emergency services will not have effective communications in these
gap areas. Any impainnent in its wiI:eless service network resulting from the revocation of the
Building Permit 'Will. irreParably han:i1 Sprint Spectrum's ability to service the health and safety
needs of the commUnity. Moreover, it will prohi~it Sprint Spe~ from competing for
cust<?mers in a growing market Thus, Sprin~ Spectrum will lose the opportunity to attract
customers while its competitors may be allowed to expand in this burgeoning market
mm_I.IlOC
A-41
11
~
o
o
~
. FIRST CLAIM FOR RELIEF .
VIOLATION OF FEDERAL TELECOMMlJNICATIONS ACT OF 1996
(47 UoSoCo S 332(c)(7)(B)(ih"))
46. Sprint Spectrum hereby adopts and incorporates by referencet as if fully stated
~
herein, the allegations set forth in paragraphs 1 through 45 of this Complaint.
47. On February 8, 1996, the TCA went into effect The TCA comprehensively
addresses teleco~unications policy and. the development of facilities to provide
~.
telecommunications services throughout the United States.
48. The stated purpose of the TCA is to "promote competition and reduce regulation
~ in order to secure lower prices and higher quality services for American telecoinmunications
corisumers and encourage the rapid deployment of new telecommunications technologies."
(Preamble to th~ TCA).
~
49. The rCA provides, in pertinent part:
AIly person 'adversely affected by any final action or failure to" act by a
State or local gov~ent or ~y' ~entality th~eef that is
~ , inconsistent with this subparagraph ~y, within 30 days after such action
or 'failure to act, commence an action in any court of competent
jurisdiction.
47 U.S.C. ~ 332(c)(7)(B)(v).
~
50. The rCA further provides that any person adversely affected by a State or local
govc;mnent's action, or failure to act, that is inconSistent with Section 332(c)(7)' may seek
expedited revie~ in the fed~ courts. 47 V.S.C. ~ 332(c)(7)(B)(v).
51. The TCA has been interpreted to ve~ courts of competent jurisdiction with
authority to grant, inter alia: injunctive relief directing the issUance of all necess~ permits for a
Sprint Antenna wh~ a local governmental entity fails to comply with the TCA's req~ments.
57J171_1.DClC
A-42
12
~.
o
o
. 52. The TCA further provides', in pertinent part:
~
Any decision by a State or local government or instrumentality thereof to
deIiy a request to place, construct or modify personal wireless service
facilities shall be in vmting and' supported by substantial evidence
cOntained in a written record.
~
47 V.S.C. ~ 332(c)(7)(B)(ili).
~.
53. . The Board's denial of Sprint's Subdivision Appeal is not .supported by any
substantial evidence :from the written Tect?rd esta.b}i$ed before the Board.
54. By denying Sprint's Subdivision Appeal without substantial evidence in a written
~
record supporting denial, the Board violated 47 V.S.C. g 332(c)(7)(B)(iii).
SECOND CLAIM: FOR RELIEF
VIOLATION OF FEDERAL TELECOl\1MUNICATIONS ACT OF 1996
. (47 U.S.C S 33Uc)(7)(B)(j)ffi)
55. Sprint Spectrum hereby adopts and incorporates by reference, as if fully stated
~
herein, the allegations set forth in paragiaphs 1 through 54 of this Complaint
56. The Board's grant of Deer's Zoning Appeal is not supported by any substantial
~
evidence from the written record established before the Board.
57. By granting Deer's Zoning Appeal ~thout substantial evidence in a written
record supporting the revoCation of the Building Permit, the Board violated 47 V.S.C. g
332( cX7)(B)("ili).
THIRD CLAIM FOR RELIEF
VIOLATION OF FEDERAL TELECOMMUNICATiONS ACT OF 1996
(47 U.s.C. S 332(c)(7)(B)(Om)
58. Sprint Spectrum hereby a.c;iopts .and in~rporates by reference, as if fully stated
herein, the a1le~ations set forth in paragraphS 1 through 57 oftbis Complaint
ml7J_I.tlOC
A-43
13
~
o
o
59. The TCA further provides, in pertinent part, that the regulation oftbe placement,
~
construction, and modification of personal wireless service facilities by any State or local
gov.ernment or ~entality thereof "shall not unreasonably discriminate among providers of
~ functionally equivalent services.". 47 V.S.C. ~ 332(cX7)(B)(i)~.
,
60. On information and belie~ other CQmmunication providers have obtained
improvement lo~tion permits from the City for the installation of anterlnae apd equipment
~.
shelters without having to subdivide the host parcel of land or obtain any subdivision plat
approval.
~
61. On information and beliet: other co~unication providers have obtained
improveID;~nt loCation permits from the City for the collo~on of antennae and equipment.
shelters without having to obtain a speCial use permit, variance or other similar zoning relief.
~
62. By revoking the Building Permit in connection with Deer's Zoning Appeal and
Sprint's Subdivision Appeal, and by not imposing similar requirements on Sprint Spectrum's
~
com~etitors, the Board viol.ated 47 V.S.C. ~ 332(cX7)(BXi)(I) by unreasonably discriminating
against Sprint Spectrum.
FOURTH CLAIM FOR RELIEF
VIOLATION OF FEDERAL TELECOMMUNICATIONS ACl' OF 1996
(47 V.S.C. 6332fc)(7)(B)(n(ffi)
63. Sprint Spectrum hereby adopts and incorporates by. reference, as if fully stated
. .
herein, the allegations set forth in paragraphs I through 62 of this Complaint.
64. . The TCA also provides, in part, that the regulation of the placement, constructio~
. .
and . modi:fication of personal wireless facilities. by any State or local government or
instrum~ta1ity thereof "shall not prohibit or have the .~ffect of prohibiting the provision of
personal wireless s~ces." 47 V.S.C. ~332(cX7)(B)(i)(II).
5'73t'71_tJlOC
A-44
14
~
u
o
65. The Citis revocation of the Building Permit prohibits Sprint Spectrum from
~
entering the telecommunications marketplace in the MT A by preventing it from implementing
the necessary infrastructure and constructing the Sprint Antenna at the Zamber Site.
~
.
66. By denying Sprint Spectrum's Variance Application in connection with its Sprint
. .
Antenna, the Board violated 47 U.S.C. g 332(cX7)(BXi)(II).
~
FJj('lH CLAIM FOR RELIEF
VIOLATION OF THE IfJ.ll"lJi AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION r
67. Sprint Spectnim hereby adopts and incorporates by reference, as if fully stated
~ herein, the allegations set forth in paragraphs 1 through 66 of this. Complaint.
68. Under the law of the State of Indiana, the Building Permit vests property rights in
Sprint Spectrum. Sprint Spectrum is the owner of said private property rights.
~
69. The Fifth Amendment to the United States ConstitUtion provides ~ private
property rights shall not be taken for public use withoUt just compensation, nor shall any person
b~ deprived of such rights. without due pr~ss oflaw.
70. Sprint Spectrum's rights in the Building Permit are further guaranteed and
protected under the Fourteenth Amendment to the United States Constitution.
. .
71. The Defendants' actions descnbed in. paragraphs 1. through 45 have deprived
Sprint Spectrum of the use and enjoyment of its vested property rights without juSt compensation
and without due process oflaw.
72. As a result of the Defendants' ~olations, Sprint Spectrum has sustained .actual'
damages in an amount to be proven at trial.
73. Additional n::lmages continue to accrue in a substantial amount.
5'T.IJ11_1.DOC
A-45
15
~
u
o
~
SIXTH CLAIM FOR RELIEF
VIOLATION OF ARTICLE I, SECTION 21 OF THE
CONSTITUTION OF THE STATE OF INDIANA
74.
Sprint Spectrum hereby adopts and incorporates by reference, as if fully stated
~
herein, the allegations set forth in paragraphs 1. through 73 of this Complaint
75. Under the law of the State of Indiana, the Buildjng Permit vests property rights in
~
Sprint Spectrum. Sprint Spectruoi is the OWDer of said private property rights.
76. Article I, Section 21 of the Constitution of the State of Indiana provides that
private property rights shall not be taken without just compensation, nor shall any person be.
~ deprived of such rights without due process of law.
77.. The Defendants' actions described in paragraphs 1 through 43 above have
deprived Sprint Spectrum of the use and enjpyment of its vested property rights without just
~
compensation and without due process of law.
78. As a result of the Defendants' violations, Sprint Spectrum has sustained actual
dama:ges in an amount' to be proven at trial.
79. Additional damages continue to accrue in a sub~tia1 amount
. SEVENTH CLAIM FOR RELIEF .
REQUEST TO REVIEW BOARD'S
D~CISION OF' .ftJNE 24, 2Q02
(Ind. Code 636-7-4-1003) .
80. Sprint Spectrum hereby adopts and incorporates by reference, as if fully stated
herein, the allegations set forth in paragraphs 1 through 79 of this Complaint
81. The Board is the entity created by ~lO-130 of the Zoning Ordinance ~ authorized
by Ind. Code 93.6-7-4-901.
ml'7l_J.ZlOC
A-46
16
~
u
o
82. Pursuant" to Ind.. Code ~36-7-4-1003, a person aggrieved by a Board decision shall
~
have the right to appeal the decision by petition for writ of certiorari.
83. The Board's decision to approve Deer's Zoning Appeal is illegal-because
~
collocation of an antenna on an existing tower is a Permitted Use under Section 10-30. (alk/a
Section 5.1.1) of the Zoning Ordinance and, therefore, Sprint is entitled by law to collocate the
Sprint Antenna to the Existing Tower. .
~
84. Sprint has been aggrieved by the Board's decision to approve Deer's .Zoning
Appeal.
~
85.. As a person aggrieved by the Board's. decision to ~t Deer's Zoning Appeal,
Sprint has the right to'have.that decision reviewed pursuant to Ind. Code g36-74-1003 by this'
Court under its supplemen~jurisdic~on pursuant to 28 V.S.C.. g1367.
~
86. Sprint Spectri.un requests that this court issue writ of certiorari, reverse the June
. 24, 2002 decision of the Board to approve Deer's Zoning Appeal. as illegal, and remand the June
. .
24, 2002 decision to the Board with directions to deny Deer's Zoning .Appeal.
EIGHTH cLAIM FOR RELIEF
REQUEST TO REVIEW BOARD'S
DECISION OF JULY 22,2002
and. Code 636-7-4-1003)
87. Sprint Spectrum hereby adopts and incorporates by reference, as if fully stated
herein, the allegations set forth in paragraphs 1 through 86 of this Complaint.
88. Th~ Board is the entity cr~d by 910-']30 of the Zoning Ordll1a.nce as authorized
by Ind. Code 936-7-4-901.
89. Pursuant to Ind. Code g36-7-4-1003, apersonoaggneved by a Board decision shall
have the right to appeal the deci~ion by petition for writ of certiorari.
57.J171_I.IlOC
A-47
17
~
u
(;;)
~ .
90. The Board's decision to deny Sprint's Su~vision Appeal of the Director's
revocation of the Building Permit is illegal because no subdivision of land has occurred under
app~cable Indiana statute or the City's Zoning Ordinance and, therefore, the subdivision control
~
provisions of the Zoning Ordinance are not applicable. As such, the basis of the revocation of
the Building Permit is unlawful.
91. Sprint has been aggrieved by the Board's decision to deny Sprint's Subdivision
~
Appeal of the revocation of the Building-Permit.
92.. As a. person aggrieved by the Board's decision to deny Sprip.t'~ Subdivision
~ Appeal, Sprint has the right to have that decision reviewed pursuant to Ind. ,code ~36-7-4-1003
by this Comt UJider its supplemental jurisdiction pursuant to 28 D.S.C. ~1367.
. . 93. Sprint Spectrum requests. that this Comt issue writ of certiorari, reverse the July
~
22, 2002 decision of the Board. to deny 'Sprint's Subdivision Appeal as illegal, and remand the
July 22,2002 decision to the B~ard with directions to grant Spriilt's Subdivision Appeal.
NINTH CLAIM FOR RELIEF
DECLARATORY JUDGMENT
(28 V.S.C. S 2201) _
94. Sprint Specfrum hereby adopts and incorporates by reference, as if fully stated
. ,
herein, the allegations set forth in paragraphs 1 tm~ugh 93 of this Complaint.
95. In this Count, Sprint Spectrui:n seeks declaratory relief pursuant to the Declaratory
Judgment Act, 28 U.S.C. H 2201, et. seq.
96. A real, immediate and substantial' continuing controversy existS between Sprint
Spectrum, on the one hand, and the City, on the ~ther hand.
ml1l_l.DOC
'18
A-4R
~
Q
.0
97. There is a bona fide, actual, present and practical need for a declaration of Sprint
~
Spectrum's right to construct the Sprint Antenna on the Zamber Site.
98. Sprint Spectrum's interest in the requested declaration is actual, present, adverse
~ and antagonistic to that of the .City. There is an actual ~d justifiable controversy existing
between Sprint Spectrum and the City, and all conditions precedent to declaratory relief have
been performed or have occmred.
~
99. . Sprint Spectrum is entitled to a declaration. that the rev.ocation of the Building
P~ violated Sprint Spectrum's statutory rights linder ~e TCA an"d applicable State law, and
~ that the issuance of the Building Permit should be affirmed.
PRAYER FOR RELIEF
. WHEREFORE, Sprin~ Spectrum prays that t1;lls Court enter ju,dgm~t in its favor and
~
. against the Defendants for the following:
A. A pennanent injunction prohibiting the Defendants from interfering with the
coDSlruction and operation of the Sprint Antenna unqer the First, Second, Third,
FoUrth, Fifth, Sixth, Seventh, Eighth and/or.N'"inth Claims fOf.Relief;
B. A writ of mandamus and permanent injunction ordering the Defendants to honor
the Building Permit and "to issue any and all other necessary approvals for the
Sprint Antenna .under the First, Second, TbJrd, Fourth, Fifth, Sixth, Seventh,
Eighth and/or N"mth Claims for Relief;
C. A judgment declaring that the Board violated the TCA and State law by revoking.
. the Building. Permit and ordering that the Building Permit be honored under.the
First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth and/or N"mth Claims for
Relief;
ml7l_IJlOC
A-49
19
~
u
o
D.
A judgment for nam::lges in an amount to be proven at trial, plus narnages inC'UITed
for each day until such time as the Defendants conform their conduct to applicable
restrictio~ thereon and to Sprint Spectrum's rights, under the Fifth and/or Sixth
Claims for Relief; and .
~
~
. .
Such other and further relief as this Court deems just and proper under .each
Claim.
I AFFIRM UNDER. THE PENALTIES FOR PERJURY THAT THE FOREGOING
E.
REPRESENTATIONS ARE TRUE.
~
Dated: July 23, 2002
Respectfully submitted,
LOCKE REYNOLDS L.P.
By:
F dsole - #15980-49
AttoIIiey for Peti:tioner
Sprint Spectrum L.P.
~
~
ST.I171_I.1:IOC.
A-50
20
~
u
~
~
~
~
~
· 1. Existing 135' Guide Tower
· 2. Existing Side AIm Apertures
u
· A. Proposed Flush Mount Sprint pes .'u1tenna
· B. Proposed Access Road, Equipment Shelter & Landscaping.
~
u
(;)
CITY OF CARMEL" CLAY TOWNSHIP ZONING ORDINANCE
~
CARMEL/CLAY ZONING ORDINANCE
CHAPTER 30: BOARD OF ZONING APPEALS
~
30.0 Board of Zonin2 Aooea1s.
30.1 Anneals to the Board.
30.2 Anneal Procedure.
30.3 Stav of Work.
30.4 Variances.
30.5 Variance Procedure.
30.6 Conditions Relatin2 to Board Actions in the Flood Plain Districts.
30.7 Review by Certiorari.
30.8 Alternate Procedure for Develonment Standards Variances.
~
30.0 Board of Zonine: Apneals.
~
The Board is bereby established with membership and appointments provided in accordance with the
Advisory Planning Law SeeBeBS 6~ 69, iBBhlSiv8, ef CBaJ'ter 171 Bf 1:88 !.~ Bf 1917 Bf 1:88 lBEiisa
GElBERI .\sseiMly ed aU aats BlBeBstery 1:8efete. Detailed herein are the procedures and so forth relating
to Board activities.
Sec. 30.0 amended per Ordintmce No. Z-365-OI.
~
30.1
Aooeals to the Board.
~
The Board may bear, 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 of the City of Carmel. All appeals sball be filed with the
Director within thirty (30) days of the action to be appealed. An appeal shall also be filed where the Board
is required to determine a zoning district boundary or the existence of a nonconforming use.
30.2
Apneal Procedure.
30.2.1 Consultation with the Director and Aoolication. Appellants sball meet with the Director in order
to examine the nature of the proposed appeal, review the regulatory ordinances and materials, and
review the appeal procedures. The Director shall aid the appellant in preparing his application and
supporting documents as necessary. The appellant shall then submit two (2) copies of the written
application form and all necessary supporting documents and materials.
30.2.2 Initial Review of the Aoolication and Sunnortin2 Documents and Materials bv the Director:
Submission to the Board. Following the receipt of the written appeal application and necessary
supporting documents and materials by the Director, he shall then review the materials solely for
the purpose of determining whether the application is complete, is in technical compliance with all
applicable ordinances, laws and regulations and is to be forwarded to the Board. If the materials
submitted by the appellant are not complete, or do not comply with the necessary legal
requirements, the Director shall inform the appellant of the deficiencies in bis materials. Unless
and until the Director formally accepts the appeal application as complete and in legal compliance
it shall not be considered as formally filed for the pmpose of proceeding to the succeeding steps
toward Board consideration of the appeal as hereinafter set forth. The application is formally filed
Chapter 30: Board of Zoning Appeals
30-1
as amended per Z-365-01
Summer 2002 vI
A-52