Opinion
No. 1:02-cv-372 Edgar
October 20, 2003
MEMORANDUM
Relator Wireless Income Properties, LLC ("Wireless") brings this action against the City of Chattanooga and William C. McDonald, in his official capacity as Administrator of Public Works (collectively "the City"). Wireless asserts claims for violation of the Federal Telecommunications Act of 1996 ("TCA"), pursuant to 47 U.S.C. § 332(c)(7)(B), violation of the Civil Rights Act of 1871 pursuant to 42 U.S.C. § 1983, and violation of substantive due process rights. [Court File No. 1]. Before the Court are the Wireless's motion for partial summary judgment [Court File No. 7] and the City's response [Court File No. 15], as well as the City's motion for summary judgment [Court File No. 18] and the Wireless's response [Court File No. 20]. For the reasons expressed below, Wireless's motion for partial summary judgment [Court File No. 7] will be GRANTED in part and DENIED in part. The motion by the City for summary judgment [Court File No. 18] will be GRANTED in part and DENIED in part. I. Summary Judgment
Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 415 U.S. 574, 587 (1986); National Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a showing, the non-moving party must present some significant, probative evidence indicating the necessity of a trial for resolving a material factual dispute. Celotex Corp., 477 U.S. at 322. A mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The Court's role is limited to determining whether the case contains sufficient evidence from which a jury could reasonably find for the non-moving party. Anderson, 477 U.S. at 248, 249; National Satellite Sports, 253 F.3d at 907.
II. Facts
The record suggest the following facts when viewed in the light most favorable to the Wireless.
Beginning on December 14, 2001, and continuing through January 15, 2002, Wireless submitted individual applications for Land Disturbing Activity Permits to build cellular phone towers on seven parcels of land in Chattanooga. The applications were submitted to the Public Works Department of the City of Chattanooga. William C. McDonald serves as the Administrator of Public Works for the City.
Each application contained a request to build either a 190' or 140' monopole communications tower. At the time the applications were filed, each of the seven properties was either owned or leased by Wireless. Each property was designated as a C-2, M-1, or M-3 for zoning purposes. The structures that Wireless applied to build were permissible in the relevant zones under the zoning ordinances in effect during the at the time the applications were filed.
On January 15, 2002, the Chattanooga City Council issued Resolution No. 23271, which placed a moratorium on the issuance of building permits for the construction of communications towers proposed to be built in certain zoning districts throughout the City. The resolution was set to expire on March 13, 2002, however, under Resolution No. 23300, the City extended the moratorium until April 5, 2002.
During the moratorium, the City Council issued Ordinance No. 11252, adopting zoning amendments proposed by Chattanooga Hamilton Country Regional Planning Commission and effective April 3, 2002. The City Council then issued Resolution No. 23350, terminating the moratorium effective April 3, 2002.
Wireless states that the permit applications, filed before the moratorium, were complete and would have resulted in permits being issued. Wireless further argues that under the new ordinance a complete application would require Wireless to file for a Special Use Permit necessitating additional time and expense, and would likely be a fruitless pursuit for some of the properties in question. Wireless also claims that it has not received the written denial of its applications which is required under the Telecommunications Act of 1996.
The City responds that Wireless's application has not received a written communication of denial because each application is on hold pending its completion due to a lack of the documentation required under the new ordinance.
Wireless's claims will be addressed in turn.
III. Analysis A. Federal Telecommunications Act of 1996
Wireless argues that it is entitled to partial summary judgment on the issue of a violation of the Federal Telecommunications Act of 1996. Wireless suggests that the appropriate remedy for such violations is that this Court order the City of Chattanooga to grant its pending applications for Land Disturbing Activity Permits. In response, and in support of its motion for summary judgment, the City argues that Wireless's claims under the TCA are not yet ripe.
The TCA does not disturb the general authority of local government to regulate zoning. It states:
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 U.S.C. § 332 (c)(7)(A). However, the TCA does provide some limitations to this authority. Specifically, the TCA provides as follows:
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.47 U.S.C. § 332(c)(7)(B)(iii). The TCA also requires that requests be acted on "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." 47 U.S.C. § 332(c)(7)(B)(ii).
Wireless submitted seven applications for Land Disturbing Activity Permits between the dates of December 14, 2001 and January 15, 2002. On January 15, 2002, the City resolved to enter a moratorium on granting permits that extended until April 3, 2002. No written decision on these applications had been rendered as of the date this case was filed, December 10, 2002.
The City supplies the deposition testimony of Perry Mayo, the city employee with primary responsibility for processing the applications. Mr. Mayo states that he has orally informed Wireless that the applications would have to be amended in order to be granted under the ordinance in effect after April 3, 2002, and he has no plans to act on the Wireless applications which he considers to be "on hold." [Court File No. 15, Mayo dep. p. 38, 40]. The City argues that the applications are incomplete, thus no decision on them is necessary until the applications are completed in accordance with Ordinance No. 11252, requiring Wireless to file a petition to the Variance Board for a special permit for each application.
The first issue that must be addressed to resolve the impasse reached between Wireless and the City is whether the applications must be reviewed under the zoning ordinances in effect at the time the applications were filed, or the zoning ordinances in effect after April 3, 2002. The TCA specifically provides that it does not disturb the authority of state and local governments. 47 U.S.C. § 332(c)(7)(A). To the extent that the TCA does not disturb the authority of state and local governments, state law must be applied to determine the extent of this authority. Tennessee courts have said that "[i]t is generally held that neither the filing of an application for a building permit nor the issuance of a building permit, although valid and issued in conformity with the provisions of the zoning ordinance, alone confers any right in the applicant or permittee against a change in the zoning ordinance which imposes further limitations." Schneider v. Lazarov, 360 S.W.2d 197, 200 (Term. 1965) (citing 2 Rathcopf, The Law of Zoning and Planning § 57-2 (1964)); see also, Roland F. Chase, Annotation, Retroactive Effect of Zoning Regulation, in Absence of Saving Clause, on Pending Application for Building Permit, 50 A.L.R.3d596, 607 (1973). Thus, state law recognizes the authority of the City to change its zoning ordinances subsequent to an application, and require compliance with additional application requirements. That is to say, under Tennessee law, Wireless has no protected interest in the maintenance of a particular application process from the time of filing to the time that the application is granted or denied.
Wireless does not suggest that the new ordinance itself conflicts with the TCA's provision that a state or local government "shall not unreasonably discriminate among providers of functionally equivalent services; and shall not prohibit or have the effect of prohibiting the provision of personal wireless service." 47 U.S.C. § 332(c)(7)(B)(i). Indeed, if such a claim by Wireless can be construed to be contained in the complaint [Court File No. 1], it is not ripe because Wireless has not attempted to comply with the current ordinances. See CellcoP'ship v. Russell, No. 98-2123, 1999WL556444, *3-6 (4th Cir. 1999). Rather it appears Wireless argues only that the City has violated the TCA by failing to provide a written denial of applications which were filed before the moratorium and complied with the application process then in effect. [Court File No. 1 9].
The Sixth Circuit has held that in order for a decision by as state or local government "to be `in writing' for the purposes of 47 U.S.C. § 332(c)(7)(B)(ii), it must (1) be separate from the written record; (2) describe the reasons for the denial; and (3) contain a sufficient explanation of the reasons for the denial to allow a reviewing court to evaluate the evidence in the record that supports those reasons." New Par v. City of Saginaw, 301 F.3d 390, 395-396 (6th Cir. 2002). There is no question in this case that no such denial of Wireless's applications has been given. In fact, the deposition testimony of Perry Mayo, submitted by the City, states that he does not intend to deny the application because they do not comply with the newly enacted ordinance. [Court File No. 15, Mayodep.p. 38]. Mayo states that if he never receives the changes to a permit application then "after a couple of years [he] . . . throws them away." [Court File No. 15, Mayo dep. p. 38]. This practice clearly does not comport with the writing requirement of the Federal Telecommunications Act of 1996.
Similarly, the passage of more than nine months between the lifting of the moratorium and the filing of this lawsuit without any action taken on the Wireless applications likely does not comport with the TCA's requirement that governments act "within a reasonable period of time after the request is duly filed. . . ." 47 U.S.C. § 332(c)(7)(B)(ii). Applications that complied with the then existing application requirements and filed before the moratorium must be considered "duly filed" and entitled to action consistent with the time and writing requirements of the TCA, although the City is not required to apply the ordinances in effect at the time the applications were filed.
In New Par, the Sixth Circuit also recognized "that injunctive relief is an appropriate remedy for such violation." New Par, 301 F.3d 399 (citation omitted). The City of Chattanooga will be ordered to act to grant or deny Wireless's applications within 60 days from the date the judgment accompanying this memorandum is issued. B. 42 U.S.C. § 1983 claim for Federal Telecommunications A ct of 1996 violation
Wireless asserts a claim pursuant to 42 U.S.C. § 1983 for violation of the Federal Telecommunications Act of 1996. The City moves for summary judgment arguing that a claim under § 1983 based on a violation of the TCA is not available to Wireless.
Whether a violation of the Federal Telecommunications Act of 1996 gives rise to an action under § 1983 has been the subject of some disagreement among district and circuit courts. The Third Circuit has reasoned that Congress did not intend a § 1983 remedy to be available, while the Eleventh Circuit took the opposite position in an opinion later vacated for other reasons. Nextel Partners, Inc. v. Kingston Township, 286 F.3d 687 (3rd Cir. 2001); ATT Wireless PCS, Inc. v. City of Atlanta, 210 F.3d 1322 (11 Cir. 2000) (vacated on other grounds). A long line of district court decisions reflect a similar spilt.
See generally, (Cases not allowing § 1983 claims under the TCA: Network Towers, LLCv. Town of Hagerstown, No. IP011833CHK, 2002 WL 1364156 (S.D.Ind. May 15, 2002); CIS Communications, L.L.C. v. County of Jefferson, Missouri, 111 F. Supp.2d 1148 (E.D.Mo. 2002); Primeco Personal Communications v. City of Mequon, 242 F. Supp.2d 567 (E.D.Wis. 2003); Quest Corp. v. City of Santa Fe, New Mexico, 224 F. Supp.2d 1305 (D.N.M. 2002)); Omnipoint Comm. Enter, v. Charlestown Township, No. 98-CV-6563, 2000 WL 128703 (E.D.Pa. 2000); Omnipoint Comm., Inc. v. Foster Township, 46 F. Supp.2d 396 (M.D.Pa. 1999); Omnipoint Comm. v. Penn Forest, 42 F. Supp.2d 493 (M.D.Pa. 1999); National Telecomm. Advisors, Inc. v. City of Chicopee, 16 F. Supp.2d 117 (D.Mass. 1998));(Cases allowing § 1983 claims under the TCA: Cellco P'ship v. Hess, No. CIV A. 98-3985, 1999 WL 178364 (E.D.Pa. March 30, 1999); MCI Telecomm. Corp. v. Southern New England Tel. Co., 27 F. Supp.2d 326 (D.Conn. 1998); APT Minneapolis, Inc. v. City of Maplewood, No. CIV 97-2082, 1998 WL 634224(D.Minn Aug. 12, 1998); Smart SMR of New York, Inc. v. Zoning Comm. of the Town of Stratford, 995 F. Supp. 52 (D.Conn. 1998); Cellco P'ship v. Town Plan and Zoning Comm'n of Farmington, 3 F. Supp.2d 178 (D.Conn. 1998); Omnipoint Comm. Enter, v. Zoning Hearing Bd. of Chadds Ford Township, No. CIV A 98-3299, 1998 WL 764762 (E.D.Pa. 1998); Sprint Spectrum, L.P. v. Town of Easton, 982 F. Supp.2d 47 (D. Mass. 1997)).
When evaluating whether a claim arises under § 1983, both the Third and Eleventh Circuit follow the test set forth in Blessings v. Freestone, 520 U.S. 329 (1997). The Supreme Court explained that in order to create a cause of action under § 1983: "[f]irst, the federal statute must create private rights enforceable under § 1983; [and] second, the statute must not evidence congressional intent to foreclose a cause of action under § 1983." ATT Wireless, 210 F.3d at 1325 (citing Blessing, 502 U.S. at 340-341).
Both the Third and Eleventh Circuits rely on the Blessings framework although reaching opposite conclusions. Both courts found that the first portion of the Blessings test was met by the Telecommunications Act of 1996. Nextel Partners, 286 F.3d at 694; ATT Wireless, 210 F.3d at 1325-6. The analysis diverged, however, when addressing the second element. The Third Circuit held that
While the remedial scheme provided by the TCA is not complicated, we believe is comprehensive in the relevant sense: it provides private judicial remedies that incorporate both notable benefits and corresponding limitations. Allowing plaintiffs to assert TCA claims under § 1983 would upset this balance.Nextel Partners, 286 F.3d at 694. The Third Circuit specifically looked to the short period of 30 days after an adverse action during which a plaintiff must file for relief under the TCA, noting that this provision would not be given force if the statute of limitations for § 1983 actions were applied. Similarly, the Third Circuit noted allowing "plaintiffs to recover attorney's fees from . . . [small, rural municipalities] might significantly alter the Act's remedial scheme and thus increase the federal burden on local land-use regulation beyond what Congress intended." Id. at 695.
In contrast, the Eleventh Circuit's vacated opinion relies on the provision of the TCA stating: "No implied effect. — This Act and the amendments made by this Act shall not be construed to modify, impair or superseded Federal, State, or local law unless expressly so provided in such Act or amendment." Pub.L. No. 104-104, § 601(c)(1), 110 Stat. 143 (1996) (reprinted in 47 U.S.C. § 152, historical and statutory notes). The Eleventh Circuit found this language to be dispositive, but recognized that the Supreme Court had "found specific `savings clauses' not indicative of congressional intent regarding § 1983 actions." ATT Wireless, 210 F.3d at 1328. The Eleventh Circuit opinion distinguished the Supreme Court's holding and suggested that because the TCA contained separate savings clauses for antitrust and tax laws, the failure to address § 1983 reveals Congress intended that § 1983 remedies are available under the TCA. Id.; see Middlesex Country Sewerage Authority v. National Sea Clammers Ass'n, 453 U.S. 1, 21 n. 31 (1981)
This Court elects to follow the Third Circuit's decision because of agreement with the rationale expressed by the Third Circuit, and concern that the Eleventh Circuit opinion cannot be reconciled with the Supreme Court's holding in National Sea Clammers. In National Sea Clammers, the Supreme Court found that the overall scheme provided in the Marine Protection, Research, and Sanctuaries Act of 1972 ("MPRSA") and the Federal Water Pollution Control Act of 1969 ("FWPCA") precluded suits under § 1983, and that the presence of a savings clause "[did] not require a contrary conclusion." National Sea Clammers, 453 U.S. at 21 n. 31. The Supreme Court relied on the legislative history of the MPRSA and FWPCA in reaching its conclusion, however, this Court does not conclude, as did the Eleventh Circuit, that absence of legislative history addressing the savings clause found in the TCA dictates reaching the opposite conclusion. The Court's holding today is consistent with the provision that the TCA "not be construed to modify, impair, or supersede" federal law because § 1983 is not modified, impaired, or superceded by this holding. Pub.L. No. 104-104, § 601(c)(1), 110 Stat. 143 (1996) (reprinted in 47 U.S.C. § 152, historical and statutory notes). The Court simply joins the Third Circuit to hold that the TCA "did not create a right that can be asserted under § 1983 in lieu of the TCA'sown remedial scheme." Nextel Partners, 286 F.3d at 696. The Court therefore finds that no remedy under § 1983 is available to plaintiffs seeking redress for violations under the Federal Telecommunications Act of 1996.
C. Substantive Due Process
Wireless asserts a claim, presumably under 42 U.S.C. § 1983, for violations of its substantive due process right asserting that the City has, "by reason of its effective denial of the Applications or failure to act with respect to the Applications, effectively constituted a taking of WIRELESS' [sic] property interest in each parcel of the underlying real property and such taking has been affected without consideration as to WIRELESS' [sic] entitlement to due process." [Court File No. 1]. The City moves for summary judgment on this claim on the grounds that it is not ripe.
It is generally understood that "[a] regulatory scheme effects a taking if the regulations do not substantially advance legitimate state interest or deny an owner economically viable use of his land." Michigan Chrome and Chemical Co. v. City of Detroit, Nos. 92-1694, 93-1916, 1993 WL 432834, *6 (6th Cir. 1993) (citing Agins v. City of Tiburon, 447 U.S. 255 (1980)). The Sixth Circuit has stated that when a plaintiff alleges a regulatory scheme has taken his property, he must establish that "the regulations go too far and result in a taking of this property," and "that any proffered compensation is not just." Id. (citing MacDonald, Sommer Frates v. Yolo County, 477 U.S. 340, 348 (1986)). The Supreme Court explained in Yolo County that "an essential prerequisite to [a regulatory taking claim] is a final and authoritative determination of the type and intensity of development legally permitted on the subject property." 477 U.S. at 348. "Until aproperty owner has `obtained a final decision regarding the application of the zoning ordinance . . . to its property,' `it is impossible to tell whether the land retain[s] any reasonable beneficial use or whether [existing] expectation interests have been destroyed.'" Id. (quoting Williamson County Regional Planning Comm'n v. Hamilton Bank, 477 U.S. 172, 186, 190 n. 11 (1985)).
Wireless has not filed an application that conforms with the existing zoning ordinances. As explained by the Supreme Court, whether a regulation goes so far as to be "too far" depends largely on the application of the regulation to the petitioner's property. Id. at 349. Because the newly enacted ordinance has not yet been applied to Wireless's properties, its claim is not yet ripe.
IV. Conclusion
For the reasons expressed above, Wireless's motion for partial summary judgment [Court File No. 7] will be GRANTED in part and DENIED in part. Wireless's motion will be DENIED to the extent that it asks this Court to compel the City to apply zoning laws in effect before April 3, 2002. Wireless's motion will be GRANTED to the extent that it asks this Court to order the City of Chattanooga to act on its pending applications. The City of Chattanooga will be ORDERED to grant or deny Wireless's pending applications within 60 days of the issuance of the judgment accompanying this memorandum.
The City's motion for summary judgment [Court File No. 18] will be GRANTED in part and DENIED in part. The City's motion will be as to the plaintiffs claim under 42 U.S.C. § 1983 for a violation of the Federal Telecommunications Act of 1996; this claim will be DISMISSED WITH PREJUDICE. The City's motion will be GRANTED as to the claim for violation of Wireless's substantive due process rights; this claim is not ripe and will be DISMISSED WITHOUT PREJUDICE. The City's motion for summary judgment will be DENIED to the extent that the City argues the plaintiffs claim under the Federal Telecommunications Act of 1996 is not yet ripe.
A judgment will enter.
JUDGMENT
For the reasons expressed in the accompanying memorandum, Wireless's motion for partial summary judgment [Court File No. 7] is GRANTED in part and DENIED in part. Wireless's motion is DENIED to the extent that it asks this Court to compel the City to apply zoning laws in effect before April 3, 2002. Wireless's motion is GRANTED to the extent that it asks this Court to order the City of Chattanooga to act on its pending applications. The City of Chattanooga is ORDERED to grant or deny Wireless's pending applications within 60 days of the issuance this judgment.The City's motion for summary judgment [Court File No. 18] is GRANTED in part and DENIED in part. The City's motion is GRANTED as to the plaintiffs claim under 42 U.S.C. § 1983 for a violation of the Federal Telecommunications Act of 1996; this claim is DISMISSED WITH PREJUDICE. The City's motion is GRANTED as to the claim for violation of Wireless's substantive due process rights; this claim is not ripe and is DISMISSED WITHOUT PREJUDICE. The City's motion is DENIED to the extent that the City argues that the plaintiffs claim under the Federal Telecommunications Act of 1996 is not yet ripe. The parties shall bear their own costs.
This is a Final Judgment. The Clerk of Court shall close the case.