United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-2525
___________
USCOC of Greater Missouri, LLC, *
doing business as U.S. Cellular, *
*
Appellant, *
*
v. *
* Appeal from the United States
County of Franklin, Missouri, * District Court for the
* Eastern District of Missouri.
Appellee, *
*
Mary R. Fritz, Revocable Trust *
Dated June 28, 2005, *
*
Intervenor Defendant–Intervenor. *
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Submitted: September 21, 2010
Filed: March 2, 2011
___________
Before BYE, BEAM, and SMITH, Circuit Judges.
___________
BEAM, Circuit Judge.
Appellant USCOC (U.S. Cellular) appeals from the district court's sua sponte
dismissal of U.S. Cellular's complaint and denial of all outstanding motions. Because
this matter was not moot at the time of the dismissal, we reverse the district court's
order and remand for further proceedings consistent with this decision.
I. BACKGROUND
U.S. Cellular desires to construct a cellular telephone tower in Franklin County,
Missouri. To that end, U.S. Cellular filed an application for a conditional use permit
(CUP) with the County in January 2007. On April 11, 2007, the Franklin County
Planning and Zoning Commission (Commission) denied the application. U.S. Cellular
appealed this decision and on July 11, 2007, the Franklin County Board of Zoning
Adjustment (the BOZA) affirmed the Commission's earlier denial of U.S. Cellular's
application.
U.S. Cellular filed this action in federal district court on August 10, 2007,
challenging the BOZA's July 11, 2007, decision, alleging claims arising under the
Federal Telecommunications Act of 1996 (TCA), as well as Missouri state law. In its
complaint, U.S. Cellular prayed for three specific forms of relief in addition to certain
monetary requests: 1) a declaration that Franklin County's denial of the CUP violated
TCA procedural and substantive requirements and the Franklin County Unified Land
Regulation; 2) an injunction or writ compelling Franklin County to issue a CUP; and
3) an order reserving jurisdiction in the district court "to resolve any issues between
the parties as to further site plan and building permit issues, to ensure the integrity of
dealings between the parties" regarding the CUP application.
On August 20, 2008, the district court determined that the July 11, 2007, written
decision did not satisfy TCA requirements because it did not contain any explanation
of the reasons for the denial, i.e., it did not articulate the "substantial evidence"
supporting the BOZA's denial of the U.S. Cellular CUP application. Accordingly, the
court remanded the action to the BOZA for a new hearing and a new written decision.
In that same order, the district court stayed the remainder of U.S. Cellular's federal
action, thus maintaining jurisdiction in the federal court during the pendency of the
BOZA remand proceedings.
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Following the district court's remand to the BOZA, the BOZA held rehearings
and issued a new written decision on December 23, 2008. In that decision, instead of
merely providing the requested written support for the initial denial of U.S. Cellular's
application, the BOZA granted U.S. Cellular's CUP. U.S. Cellular notified the district
court of the BOZA's action by way of a status report filed on February 17, 2009. Also
in that status report, U.S. Cellular notified the district court that Fritz Trust had filed
suit in state court on January 21, 2009 (the Fritz Trust action), requesting that the
December 23, 2008, BOZA approval be set aside.1 U.S. Cellular's status report further
emphasized that even though the BOZA granted the CUP, Franklin County would not
sign it until the County was satisfied that certain conditions were met. This left the
entire matter in a state of uncertainty.
The BOZA's change of tune in its later grant of the CUP lends to the unique
posture of this case. On April 3, 2009, the district court issued an order specifically
requesting that the parties "file briefs addressing whether [U.S. Cellular's] First
Amended Complaint should be dismissed as moot." In response, on May 8, 2009,
U.S. Cellular filed a Motion for Judgment seeking an order from the district court
requiring the County to issue the CUP along with any other required permits, and
asking the court to otherwise dispose of all pending motions. U.S. Cellular further
requested that the court grant Fritz Trust's pending motion to consolidate, which
would then allow the court to deny the then-pending motion to remand in the Fritz
Trust action. U.S. Cellular explained that it moved for judgment because the pending
Fritz Trust action prevented the County from issuing all permits necessary for the
project to move forward. U.S. Cellular argued in its motion for judgment that "[n]ow,
1
U.S. Cellular removed the Fritz Trust action to federal court in March 2009,
case number 09-00372. Then, in April 2009, Fritz Trust moved to intervene as
defendant in this action, case number 07-1426, and further moved to consolidate the
two pending federal cases as well. However, these motions were denied as moot at
the time the district court dismissed this action. On appeal, Fritz Trust again moved
to intervene in this matter, which motion was granted.
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at the eleventh hour, Fritz seeks to undo the work of this Court, relitigate issues that
have already been decided, and send this dispute back to square one." On the issue
of mootness, U.S. Cellular claimed that, because it was yet unable to begin
construction, it had not yet been fully remedied and the case was thus not moot until
work began.
On May 26, 2009, the district court held that because U.S. Cellular's initial
claims were directed at the July 11, 2007, denial of its CUP application–a decision
superseded by the BOZA's December 23, 2008, approval of the same application– the
claims were directed at a decision no longer in force or effect. Accordingly, the
district court dismissed the case as moot. On June 4, 2009, shortly after the district
court's dismissal in the instant action, the district court handling the Fritz Trust action,
which was also in the Eastern District of Missouri but handled by a different judge,
granted Fritz Trust's motion to amend its complaint to remove all federal allegations
and remanded the case back to state court. U.S. Cellular did not appeal that court's
decision to decline to exercise supplemental jurisdiction in the Fritz Trust action,
although it could have. See Carlsbad Tech., Inc. v. HIF Bio, Inc., 129 S. Ct. 1862,
1867 (2009) ("When a district court remands claims to a state court after declining to
exercise supplemental jurisdiction, the remand order is not based on a lack of subject-
matter jurisdiction for purposes of §§ 1447(c) and (d)" and is thus reviewable on
appeal.).2
2
Our review of the state court docket sheet in the Fritz Trust action reveals that
on December 31, 2009, the Franklin County Circuit Court held that the record
contained substantial evidence to support the issuance of the CUP, but that the BOZA
had not made certain required additional findings necessary to support the order.
Accordingly, the court remanded the matter to the BOZA so that the BOZA could
detail its findings in support of its grant of the CUP in accordance with the Unified
Land Use Regulations of Franklin County (the "Zoning Code"). In April 2010, the
county circuit court denied Fritz Trust's motion for new trial in the Fritz Trust action.
As the parties did not apprise this panel of any development in the state action, we
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Currently before us is U.S. Cellular's appeal from the district court's sua sponte
dismissal in the TCA action. Franklin County elected not to file a brief on appeal.
II. DISCUSSION
We review a district court's dismissal for mootness de novo. Midwest
Farmworker Emp't and Training, Inc. v. U.S. Dep't of Labor, 200 F.3d 1198, 1201 (8th
Cir. 2000).
The TCA enactment in 1996 made substantial changes to the federal regulation
of telecommunications as Congress sought "'to accelerate rapidly private sector
deployment of advanced telecommunications and information technologies and
services to all Americans by opening all telecommunications markets to competition.'"
New York SMSA Ltd. P'ship v. Town of Clarkstown, 612 F.3d 97, 100 (2d Cir. 2010)
(quoting H.R. Rep. No. 104-458, at 113 (1996), reprinted in 1996 U.S.C.C.A.N. 10,
124). The TCA included "new provisions applicable only to wireless
telecommunications service providers." Sprint Telephony PCS, L.P. v. County of San
Diego, 543 F.3d 571, 576 (9th Cir. 2008) (emphasis in original).
In section 332(c)(7) of the TCA, Congress preserved the authority of state and
local governments over zoning and land use issues, but imposed limitations on that
authority. 47 U.S.C. § 332(c)(7). At the same time, however, section 332(c)(7)(B)
provides that "[t]he 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." 47 U.S.C. § 332(c)(7)(B)(i). To that end,
presume the BOZA's grant of the CUP remains intact and now complies with the
Zoning Code.
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"[a]ny person adversely affected by any final action or failure to act by a State or local
government . . . may . . . commence an action." Id. at 332(c)(7)(B)(v). Essentially,
the TCA "strikes a balance between two competing aims–to facilitate nationally the
growth of wireless telephone service and to maintain substantial local control over
siting of towers." Omnipoint Commc'ns, Inc. v. City of White Plains, 430 F.3d 529,
531 (2d Cir. 2005) (internal quotation omitted).
As plainly stated by U.S. Cellular, its TCA claims are not moot because U.S.
Cellular still has not achieved the relief sought in its complaint–namely, its request
that Franklin County remove the barriers standing in the way of erection of a
telecommunications tower. Although the BOZA has now approved U.S. Cellular's
CUP application, U.S. Cellular remains unable to begin construction of the tower
because Franklin County has not issued the requisite building permit, an impediment
that was contemplated by U.S. Cellular's First Amended Complaint. U.S. Cellular's
complaint sought "[a]n expedited order . . . to resolve any issues between the parties
as to further site plan and building permit issues." U.S. Cellular astutely reiterated this
prayer for relief in its May 2009 Motion for Judgment. Fritz Trust also confirms that
U.S. Cellular "is not entitled to the issuance of a building permit under state law until
Fritz's action for review of the grant of a [CUP] is decided."
The Third Circuit's discussion in Ogden Fire Co. No. 1 v. Upper Chichester
Township, 504 F.3d 370 (3d Cir. 2007), is instructive today. In Ogden Fire, a local
volunteer fire company, Ogden, partnered with Sprint Spectrum, L.P., and filed a joint
application with the local zoning board for approval of the erection of a
telecommunications tower, the existence of which would mutually benefit both
parties. Id. at 374-75. The local zoning authority denied the application and also
rejected the alternate variance request. Id. at 376. Ogden and Sprint filed a complaint
in federal court against the township and zoning board alleging violations of the TCA.
Id. Following discovery, the federal district court granted summary judgment in favor
of Ogden and Sprint, and ordered the township to grant the application and issue "any
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and all zoning permits for the proposed tower." Id. The township appealed the
summary judgment order to the Third Circuit. Id. at 377.
During the pendency of the summary judgment appeal, the local zoning board
acted on the district court's first directive and granted the special exceptions requested
by Ogden and Sprint so the project could move forward. Id. at 377. But, the project
was almost immediately halted at the next bureaucratic step when the township
building inspector denied the needed building permit. Id. At that point, Ogden and
Sprint filed a motion to compel the issuance of a building permit in the district court,
which the district court granted–a filing similar to the motion for judgment filed by
U.S. Cellular in this case that was pending before the district court at the time of
dismissal. Id. To finally resolve the matter and avoid any further bureaucratic delays,
the district court ordered the township to "issue all necessary approvals and permits
for the building of [the telecommunications tower]." Id. The township appealed that
order as well, arguing that the order impermissibly expanded the scope of the prior
order, which had merely ordered the township to issue zoning permits for the tower.
Id. at 395. The township claimed that the district court crossed the line and intruded
into an area that was strictly a matter of local law and beyond the scope of the TCA.
Id. The appeals were consolidated in the Third Circuit.
On appeal, the court noted how the TCA altered the traditional deference in
very important ways insofar as local decisions interfere with, or impact upon,
telecommunications facilities. Id. at 379. The court affirmed the district court's order
and supplemental remedy requiring the township to issue "all necessary approvals and
permits," thus confirming that the TCA encompasses all aspects of the wireless service
facilities construction process when a party has been adversely affected by a local
government's final action or failure to act. Id. at 396. The court correctly noted that
once the zoning board approved the application, if there was no assurance that
approval could be had at every additional step in the administrative gauntlet that
purportedly existed, the battle would merely shift from the zoning agency to another
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agency charged with granting approval whenever the gavel of approval subsequently
passed. Id. This, held the court, would illogically "remove the reach and protection
of the TCA from the telecommunications provider and place the provider at the mercy
of local regulators." Id. "Even if the local jurisdiction ultimately granted approval,
the attendant delay, expense and uncertainty could adversely impact the provider's
attempt to construct telecommunications facilities and subvert the national policy
favoring it." Id.
The current situation in Franklin County highlights the very administrative
quagmire that the TCA was enacted to avoid. Given the province of a federal court
under the TCA to issue certain mandates when a party has been adversely affected by
a local government's failure to act, this matter was ripe for adjudication at the time of
dismissal given the local authority's failure to issue the necessary permits. Indeed,
without power to mandate any and all permits contemplated by the federal claim, we
would essentially perpetuate "an end run around the requirements of the TCA and
thereby allow local regulatory agencies to subvert a federal policy by elevating zoning
authority over congressional policy as enacted into law via the TCA." Id. Fritz Trust
argues that U.S. Cellular is unable to use the TCA as a vehicle to force the County to
issue the needed building permit in this case. On this belief, Fritz Trust claims it has
the green light to pursue its duplicative action in state court, in turn halting any
forward motion toward the erection of the tower at issue until the state action is
resolved. This erroneous argument sheds light on the very chicanery the TCA was put
in place to halt. Disengaging the federal courts from such a suggested exercise
frustrates the intent of the TCA.
Four years later, U.S. Cellular remains unable to erect the requested tower
despite the BOZA's approval of the CUP. The issuance of the requisite building
permits is necessarily encompassed and specifically addressed in U.S. Cellular's
amended complaint and later motion for judgment, and arises under the TCA. The
district court erred in finding U.S. Cellular's claims moot. We therefore remand to the
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district court for further consideration of U.S. Cellular's motion for judgment
consistent with this opinion.
Finally, U.S. Cellular requests that the court enjoin any collateral attacks on the
upcoming administrative and judicial proceedings, including the Fritz Trust pending
state court claim. Under the All Writs Act federal courts have the inherent ability to
protect our jurisdiction over pending disputes. 28 U.S.C. § 1651(a). Indeed, the All
Writs Act authorizes federal courts to issue extraordinary writs to the extent that "the
issuance of process [is] 'in aid of' the issuing court's jurisdiction." Clinton v.
Goldsmith, 526 U.S. 529, 534 (1999) (quoting 28 U.S.C. § 1651(a)). The All Writs
Act provides us with the tools we need for this unique case. See Sprint Spectrum L.P.
v. Mills, 283 F.3d 404, 413 (2d Cir. 2002) (authorizing the use of the Act in an action
under the TCA to prevent opponents of new technology from engaging in waves of
litigation aimed at delay of a particular project). "'[T]he All Writs Act has been held
to give the federal courts the power to implement the orders they issue by compelling
persons not parties to the action to act, or by ordering them not to act.'" Goss Int'l
Corp. v. Man Roland Druckmaschinen Aktiengesellschaft, 491 F.3d 355, 365 n.6 (8th
Cir. 2007) (quoting 14A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,
Federal Practice and Procedure § 3691 (3d ed. 1998)).
Given the procedural posture of this case we find it necessary that such a writ
be issued so as to avoid any further unnecessary delays in the erection of the
telecommunications tower, which delay we have held would only frustrate the
congressional policies underpinning the TCA. Accordingly, although the district
court's actions should suffice in the instant case to complete the project at issue
without incident, especially given the state court's denial of a motion for new trial, we
exercise the authority under the All Writs Act and direct the district court to enjoin
any collateral attacks or any other such action that would frustrate the instant order.
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III. CONCLUSION
For the reasons stated herein we reverse and remand this action to the district
court for implementation of this judgment, including issuing all orders necessary to
protect the jurisdiction of the federal courts.
SMITH, Circuit Judge, dissenting.
I respectfully dissent. I would affirm the district court's conclusion that U.S.
Cellular's original claim under the TCA is moot. The TCA ensures effective and
hopefully efficient legal process in state and local zoning decisions affecting cellular
tower placement. It does not guarantee approval. U.S. Cellular's inability to erect its
telecommunications tower in Franklin County after four years, while regrettable, is
unrelated to its original claim that the BOZA violated the TCA's procedural
requirements when it originally denied U.S. Cellular's application for a CUP.
The TCA allows federal courts to review the decisions of local authorities to
ensure that those decisions comply with the TCA's requirements. It does not create the
trump card that U.S. Cellular seeks: namely, as the majority opinion describes it, to
"remove the barriers standing in the way of erection of a telecommunications tower."
In enacting the TCA, "Congress did not give the courts authority to hear a zoning case
anew or to take new evidence, but only to review the 'written record' for 'substantial
evidence' supporting the decision of the local authority." USCOC of Greater Iowa,
Inc. v. Zoning Bd. of Adjustment of Des Moines, 465 F.3d 817, 820 (8th Cir. 2006)
(quoting 47 U.S.C. § 332(c)(7)(B)(iii)). Indeed, "[t]he TCA contains no substantive
law or guidance on granting or denying permits for cellular towers and does nothing
to erode the power of local authorities to enforce traditional zoning concerns." Id. at
822. Instead, the TCA explicitly provides that "[e]xcept 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
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modification of personal wireless service facilities." 47 U.S.C. § 332(c)(7)(A). State
and local decisions will stand "so long as such decisions do not discriminate among
providers and do not effectively prohibit 'the provision of personal wireless
services'—and so long as the decision is in writing and supported by substantial
evidence." USCOC of Greater Iowa, 465 F.3d at 822 (quoting 47 U.S.C. §
332(c)(7)(B)). Thereafter, a person "adversely affected by any final action or failure
to act" by the state or local authority may bring suit in the district court, and the
district court must "hear and decide" that suit "on an expedited basis." 47 U.S.C.
§ 332(c)(7)(B)(v). Nothing in the statute guarantees that a wireless service provider
will receive all the permits it needs to construct a telecommunications tower.
Here, U.S. Cellular brought its original action in the district court to challenge
the BOZA's decision denying its CUP application. In its complaint, U.S. Cellular
argued that the BOZA's decision did not comply with the TCA's "in writing" and
"substantial evidence" requirements. The district court agreed and remanded the
matter to the BOZA for reconsideration. On remand, the BOZA reversed course and
granted U.S. Cellular's application for a CUP. In response to the BOZA's second
decision, a third party, Fritz Trust, brought suit in state court challenging the BOZA's
second decision. U.S. Cellular now argues that, because of the uncertainty caused by
this third-party challenge, Franklin County has not actually issued the CUP, nor will
it grant another permit that U.S. Cellular needs, a building permit. Whether or not this
is true, there is no longer any decision by the BOZA for this court to review. The first
BOZA decision, which violated the TCA's requirements, has been superceded by the
second BOZA decision. The instant record does not establish how Franklin County's
response to the Fritz Trust action in state court violates the TCA's requirements.
The Third Circuit's decision in Ogden does not change the analysis. In Ogden,
the plaintiffs initially brought suit in the district court, alleging a violation of the TCA
based on the local zoning board's denial of a zoning permit. 504 F.3d at 376. The
district court found that the local zoning board's decision violated the TCA, and in
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response, the zoning board issued the permit. Id. at 376–77. Thereafter, the plaintiff
applied to the local building inspector for a building permit, which the building
inspector denied. Id. at 377. As a result of this decision, the plaintiff returned to the
district court, seeking an order to compel the issuance of the building permit. Id. The
district court found "nothing in the record before it that would support the denial
. . . of a building permit" and determined that remanding to the local authorities to
reconsider the application "would frustrate the intent of the TCA." Id. As a result, the
district court ordered the local authorities to issue all necessary permits, including the
building permit. Id. The Third Circuit affirmed, "conclud[ing] that the court properly
ordered the issuance of the building permits as a supplemental remedy to the
Township's violation of the TCA." Id. at 396.
These facts are distinguishable. Here, unlike Ogden, after the BOZA granted
the CUP, Fritz Trust—not Franklin County—initiated legal action that halted U.S.
Cellular's tower construction. In addition, unlike Ogden, where the building inspector
actually denied the building permit, it is impossible to discern from the record what
steps, if any, U.S. Cellular has actually taken to get Franklin County to issue the CUP
or the building permit and how Franklin County has responded.3 Cf. Nextel Partners,
3
In a memorandum supporting its motion for judgment, U.S. Cellular merely
asserted that "Franklin County refuses to issue the building permit because of, upon
information and belief, [Intervenor] Fritz's pending claims." At oral argument, when
asked whether U.S. Cellular had applied for a building permit, counsel responded,
equivocally and somewhat cryptically:
We have asked that the building permit be issued. One of the concerns
is that because of the ongoing litigation, any building permit is under the
cloud of the ongoing challenges. So for those reasons, as a practical
matter, it makes it difficult to build a tower without the security of
knowing that the litigation is wound up.
U.S. Cellular has not identified which provisions of the TCA that Franklin County's
action (or inaction) would violate.
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Inc. v. Kingston Twp., 286 F.3d 687, 692 (3d Cir. 2002) ("In the absence of a request
to approve the construction of a facility, the failure to approve the facility is not a
'failure to act' within the meaning of this provision."). While the Ogden court did not
address the issue of mootness, the court did have a decision by the local authority that
it could review, and it did find that this decision violated the TCA. Here, in sharp
contrast, there is no action by Franklin County for this court to review. Cf. Sprint
Spectrum L.P. v. City of Carmel, Ind., 361 F.3d 998, 1003–04 (7th Cir. 2004) (finding
that the court could not review Sprint's claim because "until Sprint is told definitely
whether or not it is permitted to install an antenna and equipment shelter, it is mere
speculation whether it even has an injury to complain of"). Moreover, to the extent
that U.S. Cellular seeks judicial review of Franklin County's "failure to act," in light
of the Fritz Trust action, a failure-to-act allegation would constitute a distinct claim
alleging a distinct violation of the TCA. See 47 U.S.C. § 332(c)(7)(B)(ii) (requiring
state and local authorities to act on any permit applications "within a reasonable
period of time"). In sum, while Ogden may suggest that this court could retain
jurisdiction "to resolve any issues between the parties as to further site plan and
building permit issues"—as U.S. Cellular's complaint requested—U.S. Cellular, unlike
the plaintiff in Ogden, has failed to show that there is a cognizable issue for this court
to review.
Because there is no longer a BOZA decision that violates the TCA for this court
to review, I would find that U.S. Cellular's TCA claim is moot. Accordingly, I would
affirm the district court.
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