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Helcher v. Dearborn County

February 9, 2010


Appeal from the United States District Court for the Southern District of Indiana, New Albany Division. No. 4:06-CV-00102-SEB-WGH-Sarah Evans Barker, Judge.

The opinion of the court was delivered by: Rovner, Circuit Judge


Before FLAUM, ROVNER and WOOD, Circuit Judges.

Cincinnati Bell Wireless, LLC ("Bell") applied for a conditional use permit to construct a wireless communication facility (essentially, a cellphone tower) on property owned by Dan and Merry Helcher in Dearborn County, Indiana.*fn1 When the local Board of Zoning Appeals ("Zoning Board" or "Board") denied the application, Bell sued the Board and its members for violating various provisions of the Telecommunications Act of 1996, 47 U.S.C. § 332(c). The district court granted summary judgment in favor of the defendants, and Bell appeals. We affirm.


Bell, a wireless service provider, wanted to close a gap in cellphone signal coverage on a stretch of Jamison Road in Dearborn County, Indiana ("County"). The company sought to build a cellphone tower on the Helchers' land, a parcel zoned "Agricultural" under the Dearborn County Zoning Ordinance ("Ordinance"). Section 315 of Article 3 of the Ordinance required that Bell obtain a conditional use permit from the Zoning Board in order to build the tower at that site. R. 23, Ex. 1, at 1019. Article 15 of the Ordinance regulates the placement, construction and modification of cellphone towers in order to minimize their "negative impact on the character and environment of the County and to protect the health, safety and welfare of the public." R. 23, Ex. 2, at 1023. Article 9 of the Ordinance governs the use of land zoned Agri-cultural and allows non-agricultural uses (including the construction of telecommunications towers) under certain circumstances.*fn2 The County employed two consultants to assist the Zoning Board in making decisions related to cellphone towers. Dick Comi of the Center for Municipal Solutions ("CMS") and Ron Ebelhar of H.C. Nutting Company ("Nutting") worked for approximately twenty months with Bell in preparing the application for a permit to build the tower. CMS and Nutting had assisted the Zoning Board in reviewing twelve previous conditional use permit applications relating to wireless facilities.

As required under the Ordinance, Bell engaged in a pre-application meeting with Ebelhar to discuss the proposed tower. At that August 11, 2004 meeting, Ebelhar identified eighteen requirements that Bell needed to address in order for its application to comply with the Ordinance. The plaintiffs claimed to work diligently to meet all of the relevant requirements, and on February 9, 2005, they submitted their application to Comi and Ebelhar for review. Comi responded on February 25, 2005, with a letter detailing fifteen insufficiencies with the application. Some of the items were simple documentary requirements such as signatures from land owners, and some concerns were more substantive calls for additional calculations, assessments, and reports. Bell provided supplemental information to the consultants many times over the next several months in order to address the concerns raised in Comi's letter. Bell also made substantive changes to the plan, such as reducing the height of the tower from 250 to 190 feet, in order to eliminate the need to comply with the Federal Aviation Administration's requirements for lighting the tower. The revised plan also moved the tower further from the property line to comply with setback requirements. The consultants asked Bell to demonstrate that it could not "co-locate" the transmitters, that is, use already existing towers to provide coverage for Jamison Road. Bell investigated four existing wireless tower structures and rejected all of them as inadequate to provide the needed coverage. On January 23, 2006, Comi sent a letter to the County's Plan Commission stating that the consultants had completed their review of the application and recommended granting the conditional use permit to construct the tower on the Helchers' property.

The Zoning Board met on March 14, 2006 to consider the application. Ebelhar reported the findings of his review of the application and opined that Bell and the Helchers had met the requirements necessary to construct the tower, and that the Zoning Board should grant the permit. In every prior permit application for wireless coverage reviewed by the consultants, the cellphone carrier had been required to co-locate its transmitters on existing structures. This was the first instance since the inception of the Ordinance in which the consultants recommended that the Zoning Board allow construction of a new tower. A Board member asked Ebelhar about the visual impact of the tower, and he stated that it was the least intrusive tower possible that would provide the needed service. Another Board member asked for clarification on who had per-formed the technical studies to determine whether the tower was necessary and Ebelhar confirmed that Bell had done the work and that Ebelhar's company had reviewed those studies.

A number of landowners who opposed the building of the tower spoke at the meeting to express their concerns about the visual impact of the tower and its detri-mental effect on property values. A real estate appraiser addressed property values and concerns regarding potential hazards to children presented by the proposed tower. A community planner opined at the hearing that the plaintiffs had not met the requirements of the Ordinance because they had not provided a Visual Impact Assessment as required by paragraph 23 of Section 1512 of the Ordinance. The Zoning Board also considered a report filed by Wireless Applications Corporation, a consulting firm hired by two landowners, Karen and David Cody. The report conceded that the proposed tower would provide the desired coverage on Jamison Road but suggested that other sites could deliver superior service with a smaller impact on the surrounding community. An engineer from Bell rebutted that claim by noting that the tower height was necessary to provide adequate coverage and that Bell had reviewed and rejected as inadequate four alternate sites for the tower.

After the testimony, Zoning Board member Patricia Baker moved to deny the application for a special use permit. By a vote of three to one, the Zoning Board denied the application. At the May 2006 meeting of the Zoning Board, many disputes arose during the process to approve the minutes of the March meeting. Members of the Zoning Board, representatives of Bell and the Helchers, and objecting landowners all suggested numerous revisions to the minutes. Unable to agree on many points, the Board tabled approval of the minutes until the next meeting. In early June 2006, the plaintiffs asked the Board not to approve the revised minutes and also requested that the Board reconsider its decision to deny the permit application. At the June meeting, the Board approved the minutes as revised ("Minutes") and denied the plaintiffs' request to reconsider the denial of the permit application.

The next month, Bell and the Helchers filed a complaint against the Board and its individual members, alleging several violations of the Telecommunications Act of 1996, 47 U.S.C. § 332(c) (the "Act"). Count I alleged that the Board's decision was not based on substantial evidence contained in a written record, as required by 47 U.S.C. § 332(c)(7)(B)(iii). Count II asserted that the ap-proved Minutes of the March 14, 2006 Zoning Board meeting did not constitute a sufficient written decision as required by 47 U.S.C. § 332(c)(7)(B)(iii). In Count III, the plaintiffs contended that the Zoning Board's decision unreasonably discriminated against Bell, in violation of 47 U.S.C. § 332(c)(7)(B)(i)(I). Count IV maintained that the Zoning Board's decision had the effect of denying the provision of wireless communication services, in violation of 47 U.S.C. § 332(c)(7)(B)(i)(II). Counts V though IX, which are not at issue in this appeal, alleged violations of the Constitution and the civil rights of the applicants.

The district court granted the defendants' motion for partial summary judgment on the first four counts of the complaint. Helcher v. Dearborn County, 500 F.Supp.2d 1100 (S.D. Ind. 2007). The court rejected the plaintiffs' claim that the Zoning Board Minutes were an inaccurate recording of what went on during the meeting and that the Minutes were not adequate to meet the Act's requirement that the decision be "in writing." The court found that a written decision was adequate so long as it informed the applicant of the local government's decision denying the application. In this instance, the court found, the meeting Minutes fulfilled this requirement because the Minutes enabled the court to efficiently judge the Board's findings and conclusions against the record. The court also noted that the Minutes supplied the reasons underlying the Zoning Board's decision by noting the sections of the Ordinance which the applicants failed to satisfy. The court found that the Minutes allowed for meaningful judicial review of the decision, and that no more was required by the Telecommunications Act. The court also found that the Zoning Board's decision was supported by substantial evidence, that the denial of the permit did not effectively prohibit the provision of wireless service, and that the Zoning Board did not unreasonably discriminate among wireless service providers. Bell appeals.


On appeal, Bell argues that the Zoning Board's decision does not comply with the "in writing" requirement of the Telecommunications Act, that the Board's decision is not supported by substantial evidence, that the denial of the permit effectively prohibits Bell from providing wireless communication services, and that the Zoning Board's decision unreasonably discriminated among wireless providers, all in violation of 47 U.S.C. § 332(c)(7). Before we address the merits of the arguments, we are obliged to address our jurisdiction. The defendants sought and the district court granted partial summary judgment in favor of the defendants on Counts I through IV of the complaint. As we mentioned above, the plaintiffs pled an additional five counts (Counts V through IX) alleging violations of the Constitution and of their civil rights. After the court entered its order granting partial sum-mary judgment, the parties filed a "Joint Motion for Final Judgment." R. 47. In that motion, the parties expressed a "desire to [a]ppeal the Entry without the need to litigate their remaining claims at this time." R. 47, at 1. The plaintiffs agreed to dismiss without prejudice the remaining counts in exchange for a promise from the defendants to waive any statute of limitations defense if the plaintiffs later moved to reinstate those claims. The district court then entered a judgment dismissing Counts V through IX without prejudice and dismissing Counts I through IV with prejudice for the reasons stated in the court's earlier order granting partial sum-mary judgment. The court stated that its earlier order was "now made a final and appealable Judgment there being no just cause for delay in its entry." R. 49, at 1.

On appeal, both parties asserted that we have jurisdiction under 28 U.S.C. § 1291, which allows us to decide appeals of "all final decisions of the district courts of the United States[.]" The parties' agreement that "a judicial determination is a final decision (and thus appealable under Section 1291), does not make it so." ITOFCA, Inc. v. MegaTrans Logistics, Inc., 235 F.3d 360, 363 (7th Cir. 2000). We have an independent obligation to determine our jurisdiction. Id. Whether a decision is final for the purposes of Section 1291 depends on whether the decision by the district court ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978); ITOFCA, 235 F.3d at 363. In this case, the court and the parties expressly reserved to the plaintiffs the right to reinstate Counts V through IX after the appeal. Thus, the judgment did not resolve the litigation on the merits, and Section 1291 may not supply jurisdiction.

Although the district court did not expressly invoke Federal Rule of Civil Procedure 54(b), the court's language tracks that rule, which allows entry of a final judgment on fewer than all of the claims "only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, how-ever designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities." Fed. R. Civ. P. 54(b). We need not determine whether the judgment was properly entered under Rule 54, however, because after we raised this issue at oral argument, the parties entered a joint stipulation dismissing Counts V though IX with ...

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