Opinion
Cause No. NA99-0193-C-H/S
August 14, 2000.
ENTRY ON PENDING MOTIONS
Plaintiff Powertel, Inc. has sued the Clark County Board of Zoning Appeals ("the Board"). Powertel claims the Board violated the federal Telecommunications Act of 1996, 47 U.S.C. § 332(c), by denying Powertel's petition for zoning variance to allow construction of a 260-foot tower for wireless communications. Several motions are ripe. As explained below, the court grants the Board's motion for summary judgment because Powertel did not have standing under Indiana law to seek the zoning variance at issue. That defect in Powertel's application means that the Board's decision to deny the application must be upheld.
The Telecommunications Act of 1996 enacted a new balance between federal and state authority to regulate the rapidly expanding wireless communications industry. In Section 704 of the Act, the provision in dispute in this case, Congress provided that state and local governments retain their established zoning authority over the location and construction of towers and other facilities used in wireless communications, but that authority is subject to some important new limits as a matter of federal law. The critical paragraph provides in its entirety:
(7) Preservation of local zoning authority
(A) General authority. Except as provided in this paragraph, nothing in this Act 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.
(B) Limitations. (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.
(ii) A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request.
(iii) Any 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.
(iv) No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions.
(v) Any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis. Any person adversely affected by an act or failure to act by a State or local government or any instrumentality thereof that is inconsistent with clause (iv) may petition the Commission for relief.
(C) Definitions. For purposes of this paragraph —
(i) the term "personal wireless services" means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services;
(ii) the term "personal wireless service facilities" means facilities for the provision of personal wireless services; and
(iii) the term "unlicensed wireless service" means the offering of telecommunications services using duly authorized devices which do not require individual licenses, but does not mean the provision of direct-to-home satellite services [as defined in 47 U.S.C. § 303(v)].47 U.S.C. § 332(c)(7); see Aegerter v. City of Delafield, 174 F.3d 886, 887-88 (7th Cir. 1999) (recognizing the Act's new balance and affirming denial of zoning petition under "substantial evidence" test of § 332(c)(7)(B)(iii)).
On August 25, 1999, Powertel filed with the Clark County Board of Zoning Appeals a petition for a height variance and a special exception to allow Powertel to construct and operate a wireless communications facility in Wood Township, Clark County, Indiana. Powertel seeks to construct a 260- foot tower on top of a hill to help provide coverage for wireless communications in the greater Louisville area. The Board held a public hearing on the petition on September 15, 1999. Owners of nearby property appeared and argued against the variance. At the end of the hearing, the Board denied Powertel's petition in a brief written decision. Powertel then filed this action on October 14, 1999, contending that the Board's decision violated § 332(c)(7) in several respects. (Powertel also pleaded a claim under state law but has since dismissed it voluntarily.)
The undisputed facts show that the property that was the subject of Powertel's petition for a zoning variance is owned by Indiana Land Company, not by Powertel. See Board St. of Mat. Facts ¶ 2 (not disputed by Powertel). The undisputed facts also show that, at the time the Board decided the petition, Powertel's only interest in the subject property was that it held an option to lease the property. See id. Powertel's lawyer told the Board at the public hearing that it held only an option to lease. Powertel asserts, but without evidentiary support, that it exercised its option at an unspecified time and is now a lessee.
Powertel asserts that the fact is immaterial, however, and in this case it relies on its status as petitioner and holder of an option to lease at the time of the hearing to support its right to seek relief. Under Indiana law, only someone with a sufficient legal interest in the real property in question has standing to petition for a zoning variance. Fail v. LaPorte County Board of Zoning Appeals, 355 N.E.2d 455, 459 (Ind.App. 1976) (treating contract purchaser as owner with standing); Bowen v. Metropolitan Board of Zoning Appeals, 317 N.E.2d 193, 197-98 (Ind.App. 1974) (stating in dicta that holder of 89-year lease that permitted the proposed use would have standing to seek variance); see also Reinking v. Metropolitan Board. of Zoning Appeals, 671 N.E.2d 137, 140-41 (Ind.App. 1996) (explaining standing requirement and holding that subsequent purchaser of property did not have standing to challenge zoning ordinance in effect at time of purchase); Pequinot v. Allen County Board of Zoning Appeals, 446 N.E.2d 1021, 1026 (Ind.App. 1983) (lessee had standing to pursue special use exception where lease did not bar proposed use).
Powertel has not cited any Indiana cases (or cases from other jurisdictions) holding or suggesting that the mere holder of an option to lease is entitled to petition for a zoning variance. The court is also aware of none. In its motion to dismiss and its motion for summary judgment, the Board contends Powertel therefore had no standing to petition for the variance and that the Board's decision should be upheld on that basis.
Powertel raises two distinct arguments in rebuttal. First, Powertel points out that the Board did not deny the petition on the basis that the wrong company had brought it. The Board decided the merits of the petition without saying anything at the hearing about Powertel's standing. Second, Powertel contends that Indiana law on the question makes no difference. As Powertel views the case, the Telecommunications Act of 1996 preempts Indiana law on this issue and gives Powertel standing to bring this action as a person "adversely affected" by the Board's decision.
Indiana courts hold that the issue of standing in a zoning case is waived if it is not raised in the trial court, but it need not be raised in the hearing before the board of zoning appeals. See Robertson v. Board of Zoning Appeals, 699 N.E.2d 310, 315-16 ( Ind. App. 1998) (failure to object to standing of remonstrator in board hearing did not waive issue of standing); Wildwood Park Community Ass'n v. Fort Wayne City Plan Comm'n, 396 N.E.2d 678, 681-682 ( Ind. App. 1979) (issue of standing waived by failure to raise in the trial court initially reviewing zoning decision); Metropolitan Development Comm'n v. Camplin, 288 N.E.2d 569, 571, (Ind.App. 1972) (issue of standing waived by failure to raise in the trial court initially reviewing zoning decision).
In this case, the Board raised the issue of Powertel's standing to petition for the variance in the trial court providing the initial review of the Board's decision-this court. Under Indiana law, it appears that the Board did not waive the defect in Powertel's petition by basing its denial on other grounds and then raising the issue of standing as a defense in this court.
Powertel's principal argument is that it has standing to bring this case under the Telecommunications Act of 1996, which it says preempts Indiana law on the subject. The Telecommunications Act provides:
"Any person adversely affected by any final action or failure to act by a State or local government . . . that is inconsistent with this subparagraph may, 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). Powertel clearly falls within that broad standard and has standing under federal law to seek relief from the Board's decision.
However, the fact that Powertel has standing to bring this action under federal law does not resolve the Board's ability to deny Powertel's petition because it had merely an option to lease the property in question. The issue is whether § 332(c)(7) of the Telecommunications Act preempts state zoning law with respect to standing. Section 332(c)(7)(A) preserves local zoning authority except as provided in § 332(c)(7)(B).
The court finds nothing in the federal legislation that requires local zoning authorities to consider variance petitions by wireless communications providers that suffer from defects that should require denial if any other type of business sought them. Indiana's rules on standing in zoning matters are intended, among other purposes, to protect zoning authorities from having to deal with speculative requests for rezoning. See Bowen, 317 N.E.2d at 199. Although the (belated) enforcement of those requirements may frustrate this particular applicant who seeks to build a wireless communications facility, Indiana's standing requirement for zoning variances is not inconsistent with the terms of, or even the policies reflected in, the federal Telecommunications Act of 1996. Indiana's requirement that the petitioner hold more than a mere option to lease the property in question is not preempted by the Telecommunications Act.
This court's decision is consistent with Sprint Spectrum, L.P. v. City of Woburn, 8 F. Supp.2d 118 (D.Mass. 1998), in which the district court dismissed a case brought under § 332(c)(7) because the applicant for the permit to construct the tower in question did not have authority to use the property in question. The court recognized that the applicant had been "adversely affected" by the local decision to deny use of the property in question. The problem was that the property in question was owned by the local government. The mayor had authorized the desired use of the property, but he did not have authority to grant permission. The district court concluded that it had no authority to order the city to give the applicant permission to use city property as it wished, and that the applicant therefore lacked standing under Article III because the court could not redress the alleged injury.
The undisputed facts show that the Board could validly deny Powertel's petition for a variance because it did not have standing under Indiana law to seek such relief. The Board did not waive that defect in the petition by raising it for the first time in the trial court providing the initial judicial review of the Board's denial. Accordingly, the court hereby GRANTS the defendant Board's motion for summary judgment and DENIES all other pending motions. Final judgment for defendant shall be entered immediately.
So ordered.