305 F.3d 188 | 3rd Cir. | 2002
JOHN R. GIBSON, Circuit Judge:(cid:13) Nextel Communications of the Mid-Atlantic, Inc., appeals(cid:13) from the denial of its motion for preliminary injunction(cid:13) against the City of Margate, New Jersey, the Zoning Board(cid:13) of Adjustment for the City of Margate, and A. Ralph Perone.(cid:13) The essence of Nextel’s argument is that it is entitled to(cid:13) relief under the Federal Telecommunications Act of 1996,(cid:13) see 47 U.S.C. S 332(c)(7) (Supp. V 1999), as a result of the(cid:13) Defendants’ efforts to reopen hearings on Nextel’s(cid:13) construction of a previously approved telecommunications(cid:13) facility. Because Nextel’s claims are not yet ripe, we vacate(cid:13) the district court’s order and remand with directions to(cid:13) dismiss without prejudice.(cid:13) On October 4, 1999, Nextel entered into a lease(cid:13) agreement with Margate Towers Condominium Association,(cid:13) 2(cid:13) Inc. The agreement gave Nextel permission to place twelve(cid:13) communication antennas and an eight-foot by fourteen-foot(cid:13) equipment cabinet on the roof of Margate Towers, an(cid:13) eleven-story building containing condominium units. In(cid:13) anticipation of the lease agreement, Nextel submitted a(cid:13) Staff Committee Review Application to the Land Use(cid:13) Administrator for the City of Margate. Nextel also submitted(cid:13) an Application for Action by the Zoning Board, requesting(cid:13) a "D Variance" to allow construction of the twelve antennas(cid:13) and equipment cabinet. Both applications referred to an(cid:13) eight-foot by fourteen-foot equipment cabinet.(cid:13) A hearing before the Zoning Board was scheduled and(cid:13) interested property owners were given public notice. Again,(cid:13) both the notice and hearing agenda stated the planned(cid:13) equipment cabinet measured eight feet by fourteen feet. At(cid:13) the hearing, however, Kevin Wolfe, a land surveyor(cid:13) testifying on behalf of Nextel, stated the equipment cabinet(cid:13) would measure five and one-half feet by fourteen feet. This(cid:13) testimony was in accordance with plans submitted to the(cid:13) Zoning Board (and placed on file with the City of Margate)(cid:13) by Nextel.(cid:13) Following the hearing, the Zoning Board unanimously(cid:13) approved Nextel’s application, specifically referring to the(cid:13) equipment cabinet as eight feet by fourteen feet in its(cid:13) Resolution and stating that "[t]he proposed installation will(cid:13) be virtually invisible to any neighbors or passer-by of this(cid:13) site." A Notice of Decision was issued by the Zoning Board(cid:13) indicating issuance of the Resolution and approval of the(cid:13) eight-foot by fourteen-foot equipment cabinet. The forty-five(cid:13) day period for appealing the Zoning Board’s Resolution(cid:13) passed without any party bringing an action seeking review,(cid:13) see N.J. Ct. R. 4:69-6, and Nextel was issued a building(cid:13) permit on February 8, 2000.(cid:13) While construction was underway, Perone, a former(cid:13) municipal court judge in Margate who occupied the top-(cid:13) floor condominium immediately under the equipment(cid:13) cabinet, and who owned other units, brought an action in(cid:13) New Jersey state court seeking preliminary injunctive relief(cid:13) precluding Nextel from going forward with the project. He(cid:13) complained that: (1) Nextel’s work had already damaged the(cid:13) roof ’s protective membrane, resulting in water damage to(cid:13) 3(cid:13) one of his units, and that further damage was likely; (2) the(cid:13) "equipment shack," which Nextel refused to relocate, would(cid:13) constitute an eyesore interfering with his use and(cid:13) enjoyment of his units and reducing their market value; (3)(cid:13) the noise from the telecommunications facility would(cid:13) shatter his serenity and peace, interfere with his use and(cid:13) enjoyment of his units, and reduce their market value; and(cid:13) (4) potential health hazards would exist as a result of the(cid:13) electromagnetic field created by the antennas. The state(cid:13) court denied the application for a preliminary injunction on(cid:13) May 8, 2000, and construction was completed May 30,(cid:13) 2000.(cid:13) On July 13, 2000, Nextel was issued a Notice of Violation(cid:13) and Order to Terminate by a construction official for the(cid:13) City of Margate. The Notice asserted that Nextel had failed(cid:13) "to install the roof top structure in accordance with prior(cid:13) approvals and the construction documents submitted."(cid:13) Specifically, the equipment cabinet was said to be(cid:13) "approximately 3 ft 6 inches higher and 4 ft wider than(cid:13) approved." The Notice also stated that no Certificate of(cid:13) Approval would be issued until the violations were(cid:13) corrected, and that a penalty of five hundred dollars per(cid:13) week would be imposed for every week after August 4,(cid:13) 2000, that the violation remained outstanding. Nextel(cid:13) states that it thereafter provided the construction official(cid:13) with a copy of the Resolution, with which the equipment(cid:13) cabinet was in compliance, but the Notice and Order were(cid:13) not rescinded. Nextel also filed revised "as built" plans(cid:13) showing the equipment cabinet as eight feet by fourteen(cid:13) feet, but the Zoning Board refused to approve them. Nextel(cid:13) then filed an appeal with the Atlantic County Board of(cid:13) Appeals. Around the same time, the City of Margate also(cid:13) served Nextel with two complaints for violating Land Use(cid:13) Ordinances by failing to build in accordance with Zoning(cid:13) Board approval.1(cid:13) The Zoning Board sought a rehearing to address the(cid:13) situation. Nextel believed the Zoning Board had no(cid:13) _________________________________________________________________(cid:13) 1. Both Nextel’s appeal to the Atlantic County Board of Appeals and the(cid:13) matter before the Margate Municipal Court have apparently been put on(cid:13) hold pending resolution of this rehearing.(cid:13) 4(cid:13) authority to hold a second hearing, and apparently(cid:13) contacted John C. Matthews, the Zoning Board’s attorney,(cid:13) to make that point. On September 19, 2000, Matthews(cid:13) replied with a letter to Nextel’s attorney, asserting that it(cid:13) was "clear that the zoning board has the ability to address(cid:13) this situation," and that Nextel should reappear before the(cid:13) Zoning Board to "address the inconsistencies in[Nextel’s](cid:13) application and the ultimate size of the cabinet that was(cid:13) installed." Perone was also involved in this correspondence.(cid:13) On September 22, 2000, his attorney sent a letter to(cid:13) Matthews petitioning the Zoning Board to reconsider the(cid:13) Nextel application. In that letter, Perone’s attorney stated(cid:13) that he was aware that: (1) "the City of Margate Subcode(cid:13) Official issued to Nextel a Notice of Violation and Order to(cid:13) Terminate"; and (2) that Nextel’s attorney had written to(cid:13) Matthews arguing that it was unnecessary "for an applicant(cid:13) to return to the Board to be relieved of a condition of(cid:13) approval." Perone’s attorney went on to state that "[s]hould(cid:13) Nextel fail to appear back before the Board when ordered to(cid:13) do so, the case law is clear that the Board has the authority(cid:13) to rescind the approval previously granted based upon the(cid:13) misrepresentation, whether intentional or inadvertent,(cid:13) made during the initial proceeding."(cid:13) On September 26, 2000, Perone’s attorney sent another(cid:13) letter to Matthews. That letter mentioned a September 22(cid:13) letter sent by Nextel’s attorney challenging Perone’s right to(cid:13) petition the Zoning Board for rehearing and reiterated(cid:13) Perone’s position on the matter. Finally, also on September(cid:13) 26, Matthews sent a second letter to Nextel’s attorney,(cid:13) informing her that the Zoning Board had reviewed his letter(cid:13) of September 19, agreed with the contents of that letter,(cid:13) and was expecting Nextel "to come back before the Board(cid:13) on October 19, 2000 at 7:30 P.M. in order to have the(cid:13) Board reconsider this matter." The letter went on to state(cid:13) that "[t]here was clearly a mistake involving this(cid:13) application," because both the plans submitted by Nextel(cid:13) and the testimony of Nextel’s witness at the hearing,(cid:13) referred to an equipment cabinet measuring five feet by(cid:13) fourteen feet, while the actual cabinet was "far larger." The(cid:13) letter closed by stating that if Nextel chose not to appear,(cid:13) "the Board has the authority to reopen this matter on its(cid:13) own." The day of the rehearing, Nextel brought this action(cid:13) 5(cid:13) in the district court, asserting that, among other things, the(cid:13) Zoning Board was discriminating against Nextel, prohibiting(cid:13) Nextel from providing services, and attempting to regulate(cid:13) placement of Nextel’s equipment on the basis of concerns(cid:13) over radio frequency emissions, all in contravention of the(cid:13) Telecommunications Act of 1996.2 The telecommunications(cid:13) facility on top of Margate Towers remains up and running.(cid:13) _________________________________________________________________(cid:13) 2. The Telecommunications Act of 1996 provides in relevant part:(cid:13) (7) Preservation of local zoning authority(cid:13) (A) General authority(cid:13) Except as provided in this paragraph, nothing in this chapter shall(cid:13) limit or affect the authority of a State or local government or(cid:13) instrumentality thereof over decisions regarding the placement,(cid:13) construction, and modification of personal wireless service facilities.(cid:13) (B) Limitations(cid:13) (i) The regulation of the placement, construction, and modification of(cid:13) personal wireless service facilities by any State or local government(cid:13) or instrumentality thereof--(cid:13) (I) shall not unreasonably discriminate among providers of(cid:13) functionally equivalent services; and(cid:13) (II) shall not prohibit or have the effect of prohibiting the provision(cid:13) of personal wireless services.(cid:13) (ii) A State or local government or instrumentality thereof shall act(cid:13) on any request for authorization to place, construct, or modify(cid:13) personal wireless service facilities within a reasonable period of time(cid:13) after the request is duly filed with such government or(cid:13) instrumentality, taking into account the nature and scope of such(cid:13) request.(cid:13) (iii) Any decision by a State or local government or instrumentality(cid:13) thereof to deny a request to place, construct, or modify personal(cid:13) wireless service facilities shall be in writing and supported by(cid:13) substantial evidence contained in a written record.(cid:13) (iv) No state or local government or instrumentality thereof may(cid:13) regulate the placement, construction, and modification of personal(cid:13) wireless service facilities on the basis of the environmental effects of(cid:13) radio frequency emissions to the extent that such facilities comply(cid:13) with the Commission’s regulations concerning such emissions.(cid:13) (v) Any person adversely affected by any final action or failure to act(cid:13) by a State or local government or any instrumentality thereof that(cid:13) 6(cid:13) I.(cid:13) In Felmeister v. Office of Attorney Ethics, 856 F.2d 529(cid:13) (3d Cir. 1988), we recognized that "[t]he ripeness doctrine,(cid:13) like other justiciability doctrines, derives ultimately from(cid:13) the requirement in Article III of the United States(cid:13) Constitution that federal courts are only empowered to(cid:13) decide cases and controversies. ‘Even when the(cid:13) constitutional minimum has been met, however, prudential(cid:13) considerations may still counsel judicial restraint.’ " Id. at(cid:13) 535 (quoting Action Alliance of Senior Citizens v. Heckler,(cid:13) 789 F.2d 931, 940 n.12 (D.C. Cir. 1986)). Ripeness is an(cid:13) issue we must raise sua sponte if the parties do not raise(cid:13) it, id., and is applicable to cases involving motions for(cid:13) preliminary injunction, see Acierno v. Mitchell , 6 F.3d 970,(cid:13) 973 (3d Cir. 1993).(cid:13) The Supreme Court has explained that the basic(cid:13) rationale of the ripeness doctrine "is to prevent the courts,(cid:13) through avoidance of premature adjudication, from(cid:13) entangling themselves in abstract disagreements over(cid:13) administrative policies, and also to protect the agencies(cid:13) from judicial interference until an administrative decision(cid:13) has been formalized and its effects felt in a concrete way by(cid:13) the challenging parties." Abbott Lab. v. Gardner, 387 U.S.(cid:13) 136, 148-49 (1967). In analyzing ripeness we "evaluate both(cid:13) the fitness of the issues for judicial decision and the(cid:13) hardship to the parties of withholding court consideration."(cid:13) Id. at 149.(cid:13) As to an issue’s fitness for judicial review, we have(cid:13) previously stated that:(cid:13) Whether a question is fit for judicial review depends(cid:13) upon factors such as whether the agency action is(cid:13) _________________________________________________________________(cid:13) is inconsistent with this subparagraph may, within 30 days after(cid:13) such action or failure to act, commence an action in any court of(cid:13) competent jurisdiction. The court shall hear and decide such action(cid:13) on an expedited basis. Any person adversely affected by an act or(cid:13) failure to act by a State or local government or any instrumentality(cid:13) thereof that is inconsistent with clause (iv) may petition the(cid:13) Commission for relief.(cid:13) 47 U.S.C. S 332(c)(7).(cid:13) 7(cid:13) final; whether the issue presented for decision is one of(cid:13) law which requires no additional factual development;(cid:13) and whether further administrative action is needed to(cid:13) clarify the agency’s position, for example, when the(cid:13) challenged prescription is discretionary so that it is(cid:13) unclear if, when or how the agency will employ it.(cid:13) Felmeister, 856 at 535-36 (internal quotation marks(cid:13) omitted) (quoting Action Alliance, 789 F.2d at 940). Applying(cid:13) those factors to the case before us here, we conclude the(cid:13) issues raised by Nextel are not fit for judicial review at this(cid:13) time.(cid:13) To begin with, the process that Nextel challenges is not(cid:13) final. "[T]he finality requirement is concerned with whether(cid:13) the initial decisionmaker has arrived at a definitive position(cid:13) on the issue that inflicts an actual, concrete injury . . . ."(cid:13) Williamson County Reg. Planning Comm’n v. Hamilton Bank,(cid:13) 473 U.S. 172, 193 (1985). Here, the equipment cabinet(cid:13) remains up and running. While it is true that there was(cid:13) already one hearing resulting in a Resolution and that the(cid:13) Zoning Board has refused to approve the "as built" plans at(cid:13) this time, the possibility remains that the Zoning Board will(cid:13) approve the equipment cabinet as built following the(cid:13) rehearing. Cf. id. at 193-94 ("The Commission’s refusal to(cid:13) approve the preliminary plat does not determine that issue;(cid:13) it prevents respondent from developing its subdivision(cid:13) without obtaining the necessary variances, but leaves open(cid:13) the possibility that respondent may develop the subdivision(cid:13) according to its plat after obtaining the variances. In short,(cid:13) the Commission’s denial of approval does not conclusively(cid:13) determine whether respondent will be denied all reasonable(cid:13) beneficial use of its property, and therefore is not a final,(cid:13) reviewable decision."); Felmeister, 856 F.2d at 537 ("It may(cid:13) be that plaintiffs’ proposed advertisements will meet with(cid:13) the Committee’s approval, and if that were the outcome of(cid:13) the agency action, there would indeed be no case or(cid:13) controversy to adjudicate because the concrete effects of(cid:13) the agency action would be favorable to plaintiffs."); 15(cid:13) James Wm. Moore et al., Moore’s Federal Practice (cid:13) S 101.76[1][c] (3d ed. 1997) (stating that one of the(cid:13) purposes of the rule requiring finality is to ensure"that the(cid:13) agency is not precluded from correcting any errors before(cid:13) 8(cid:13) rendering a final decision"). Nextel argues it is challenging(cid:13) the Zoning Board’s authority to reopen the hearings, but(cid:13) merely reopening the hearings, without more, does not(cid:13) violate the Telecommunications Act of 1996, and violation(cid:13) of the Telecommunications Act of 1996 forms the basis of(cid:13) our jurisdiction here.(cid:13) In Felmeister we concluded the second and third factors(cid:13) in the fitness analysis weighed in favor of allowing the(cid:13) administrative process to go forward because "the case(cid:13) presented by plaintiffs not only requires additional factual(cid:13) development, but the Committee has not been given the(cid:13) opportunity to clarify its position in this case." 856 F.2d at(cid:13) 537. The same is true here. Should the Zoning Board(cid:13) interfere with the operation of Nextel’s previously approved(cid:13) telecommunications facility, Nextel may well have claims(cid:13) arising under the Telecommunications Act of 1996 and(cid:13) perhaps incur significant damages. However, this can only(cid:13) be determined after the Zoning Board reaches its ultimate(cid:13) decision. Cf. id. ("[W]ithout administrative action by the(cid:13) Committee regarding the specific advertisements proposed(cid:13) by the plaintiffs, the Committee’s position is not only(cid:13) unclear, it is purely hypothetical.").(cid:13) As to the hardship to the parties of withholding court(cid:13) consideration, we have stated that "in order for the parties’(cid:13) hardship to be sufficient to overcome prudential interests in(cid:13) deferral, that hardship must be both immediate and(cid:13) significant." Id. Here, as we have stated, Nextel’s(cid:13) telecommunications facility received the necessary(cid:13) administrative clearance, in addition to the Zoning Board’s(cid:13) decision, and remains up and running. Nevertheless, Nextel(cid:13) claims that allowing the rehearing to go forward exposes it(cid:13) to hardship in the form of time and expense, as well as the(cid:13) possibility of further litigation. However, "we do not believe(cid:13) that such harm . . . is sufficiently strong to outweigh the(cid:13) unfitness for review we have already described." Id. at 538;(cid:13) cf. Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726,(cid:13) 735 (1998) ("The ripeness doctrine reflects a judgment that(cid:13) the disadvantages of a premature review that may prove too(cid:13) abstract or unnecessary ordinarily outweigh the additional(cid:13) costs of--even repetitive--postimplementation litigation.").(cid:13) 9(cid:13) II.(cid:13) In accordance with the above, we vacate the district(cid:13) court’s order on Nextel’s motion for preliminary injunction(cid:13) and remand with directions to dismiss Nextel’s claims(cid:13) without prejudice.(cid:13) A True Copy:(cid:13) Teste:(cid:13) Clerk of the United States Court of Appeals(cid:13) for the Third Circuit(cid:13) 10
