[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 6, 2005
No. 04-14759
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-80856-CV-DMM
MICHAEL LINET, INC.,
a Florida corporation,
Plaintiff-Appellant,
versus
THE VILLAGE OF WELLINGTON, FLORIDA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 6, 2005)
Before HULL, WILSON and GODBOLD, Circuit Judges.
GODBOLD, Circuit Judge:
This case involves the intersection of the Telecommunications Act of 1996
and local zoning interests. The central issue in this case is whether a local zoning
board improperly rejected the application of a wireless agent to build a cell phone
site on a golf course within a residential community. The district court held it did
not. We agree.
The Village of Wellington is a municipal corporation and a residential
community in Palm Beach County, Florida. The Village’s Planning, Zoning and
Building Department oversees land development and planning issues within the
community including the construction of cellular phone sites. Michael Linet, Inc.
is a Florida corporation that serves as an agent to various cellular phone service
providers. Linet had a contract with Metro PCS, Inc., a cellular phone company, to
identify and oversee the construction of a cellular phone site within the Village of
Wellington.
These cellular sites are integral to the operation of Metro PCS’ mobile phone
service network. See Government Accountability Office Report No. 03-501, FCC
Should Include Call Quality in Its Annual Report on Competition in Mobile Phone
Services, 5 (Apr. 2003) available at http://www.gao.gov/new.items/d03501.pdf
(last referenced Apr. 25, 2005) (“GAO Report”). For the network to function
Metro must place cellular phone sites in a honey-combed type pattern. See id.
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Cell sites consist of an antenna mounted to a pole or other structure. Id. The sites
relay the low power signals emitted by the handsets that consumers carry back to
the cell site which ultimately routes them to another mobile phone or a traditional
wire-line telephone. Id. The success or failure of Metro PCS’s mobile phone
service network is directly tied to its ability to construct cell sites so that its
customers are able to utilize their handsets. See id. Cell phone companies market
themselves in part on the ability of customers to utilize their phones in various
geographic regions. See id. at 9. Indeed, “[m]ost customers sign contracts that
specify a geographically based rate plan and the size of the block of minutes the
customer is buying for a flat monthly fee.” Id.
Linet identified the Village’s Golf and Country Club as an ideal site and
proposed building a 120 foot flagpole with a cellular communications antenna
concealed inside. Because the height of the pole exceeded 60 feet, Linet was
required to obtain approval from the Village before constructing the pole. Linet’s
proposal was not well received by the Village’s residents. After a hearing
reviewing the merits of Linet’s application, the Village, based on objections by the
residents, refused to issue a permit to construct the pole. The residents’ primary
concern, voiced at a June 2003 meeting, was the impact the pole would have on the
value of their property. Residents testified that they would not have purchased
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their homes if the pole was present and a local realtor testified the pole would
adversely impact home resale values. Other ancillary concerns included the impact
the pole might have on nearby non-commercial air traffic and the pole’s proximity
to a middle school.
Linet argues that these objections amount to an impermissible pure aesthetic
or “not in my back yard” objection. He maintains that the only factually based
testimony was provided by two non-residents. The first, an executive director of
another telecommunications facility that had constructed a similar cell site after
resident opposition, testified that the pole would not adversely impact property
values. The second, a real estate appraisal executive, provided similar testimony
based on a study involving condominium sales in Boca Raton, Florida. Linet also
complained that another 150-foot telecommunications structure was constructed on
a different site within the Village.
After the permit request was denied Linet sued the Village in federal court
alleging violations of the Telecommunications Act of 1996, 47 U.S.C. § 332, and
42 U.S.C. § 1983. The district court dismissed the § 1983 claim, holding that Linet
was limited to his cause of action under the Telecommunication Act because it
provided a comprehensive statutory scheme to redress his grievance. Afterwards
Linet amended his complaint to add a state due process claim. The district court
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granted summary judgment on this claim and the Telecommunications Act claim,
holding that the Village did not violate the Telecommunications Act and that the
statute of limitations on Linet’s due process claim had expired. This appeal
followed. Linet argues on appeal that (1) a violation of the Telecommunications
Act can give rise to a § 1983 claim, (2) the Village’s denial of the cellular site
permit application was not supported by substantial evidence as required by the
Telecommunications Act, (3) the Village violated the Telecommunications Act by
unreasonably discriminating against Linet by allowing another cellular provider to
build a different structure on another site, (4) the state law due process claim was
not barred by the statute of limitations, and (5) the district court improperly denied
Line’s motion to alter or amend the final judgment. We affirm.
We review de novo a district court’s order granting a motion for summary
judgment and construe “all reasonable doubts about the facts in favor of the non-
movant.” Browning v. Peyton, 918 F.2d 1516, 1520 (11th Cir. 1990). We also
review de novo the district court’s determination that the local zoning board’s
decision was supported by substantial evidence. Am. Tower LP v. City of
Huntsville, 295 F.3d 1203, 1207 (11th Cir. 2002)
Section 1983 claim.
The district court correctly concluded that a violation of the
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Telecommunications Act does not give rise to an action under 42 U.S.C. § 1983.
The Supreme Court addressed this precise issue while this appeal was pending in
City of Rancho Palos Verdes, Cal. v. Abrams, ___ U.S. ___, 125 S.Ct. 1453, ___
L.Ed.2d. ___ (2005). The Court noted that Ҥ 1983 does not provide an avenue for
relief every time a state actor violates federal law.” Id. 125 S.Ct. at 1458. After
identifying the express private remedy in the Telecommunications Act, §332(c)(7),
the Court concluded that Congress did not intend this remedy to coexist with an
alternative remedy available in a § 1983 action. Id. This holding dooms Linet’s
first argument on appeal.
Telecommunications Act claims
The Telecommunications Act of 1996, 47 U.S.C. § 332, deregulated various
aspects of the wireless phone industry. The Act was meant to promote competition
and higher quality in American telecommunications services and “to encourage the
rapid deployment of new telecommunications technologies.” Id. 125 S.Ct. at
1455. The wireless phone industry has grown dramatically in the wake of the Act
with customer minutes used per month increasing 900% from 1997 (5.5 billion) to
2002 (55.5 billion). GAO Report at 8. Revenues have also grown exponentially
from $482 million in 1985 to $76 billion in 2002. Id.
The Act preserved limited authority of state and local governments to
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regulate the location, construction, and modification of wireless telecommunication
facilities. See Ranchos Palos Verdes, 125 S.Ct. at 1455. This authority “has
enabled the states and localities to affect both the level of competition and the
quality of mobile phone calls.” GAO Report at 14. The Act however prevents local
government from, among other things, “unreasonably discriminating” among
providers of functionally equivalent services or denying requests for authorization
to locate wireless facilities without issuing a written decision “supported by
substantial evidence.” 47 U.S.C. § 332(c)(7)(B).
Our cases highlight that a common objection residents have to the
construction of a cell site is that it detracts from the aesthetic appeal of the
community. See, e.g., Am. Tower, 295 F.3d at 1208; Preferred Sites, LLC v.
Troup County, 296 F.3d 1210 (11th Cir. 2002). A blanket aesthetic objection does
not constitute substantial evidence under § 332. See Preferred Sites, 296 F.3d at
1219. Such a standard would eviscerate the substantial evidence requirement and
unnecessarily retard mobile phone service development. Aesthetic objections
coupled with evidence of an adverse impact on property values or safety concerns
can constitute substantial evidence. See Am. Tower, 295 F.3d at 1208-9 (holding
that testimony by residents and realtor on negative impact on property values along
with safety concerns because of proximity to a school constituted substantial
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evidence sufficient to reject construction application). Also relevant is whether the
company can reasonably place a cell site in an alternative location and eliminate
the residents’ concerns. See PrimeCo Pers. Communications, Ltd. P’ship. v. City
of Mequon, 352 F.3d. 1147, 1151 (7th Cir. 2003).
The district court held correctly that the Village’s decision to deny Linet’s
permit was based on substantial evidence received at the June 2003 hearing. We
have held that the “substantial evidence” standard is the traditional substantial
evidence standard used by courts to review agency decisions. Am. Tower, 295
F.3d at 1207. “It requires more than a mere scintilla but less than a
preponderance.” Id. (internal citation omitted). Linet has the burden of proving
the Village’s decision was not supported by substantial evidence. Id.
The Village met this standard. It heard objections from residents and a
realtor concerning the cell site’s negative impact on real estate values. The Village
also heard testimony that the proposed site was unnecessarily close to a local
middle school. Under our case law this testimony was sufficient to support the
board’s determination. Linet’s expert testimony contradicting the adverse property
value impact concerns was provided by a telecommunications executive who
placed a tower in a different part of the community and a realtor who based his
knowledge on condominium sales in a different county. This does not change our
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conclusion. The residents were worried about the impact of this tower on the golf
course within their community, not a different tower, different location, or
different community. Linet also failed to show that an alternative location was
unavailable or unfeasible.
Linet’s unlawful discrimination argument is equally unconvincing. Nothing
in the Telecommunications Act precludes the Village from reasonably
discriminating between two telecommunications providers. See 47 U.S.C. §
332(c)(7)(B)(i)(I). Indeed the Telecommunications Act “explicitly contemplates
that some discrimination ‘among providers of functionally equivalent services’ is
allowed.” AT&T Wireless PCS, Inc. v. City Council of City of Va. Beach, 155
F.3d 423, 427 (4th Cir. 1998). Only unreasonable discrimination is illegal. See 47
U.S.C. § 332(c)(7)(B)(i)(I).
The phrase “unreasonably discriminate among providers of functionally
equivalent services” was intended to provide localities with the flexibility to treat
facilities that create different visual, aesthetic, or safety concerns differently to the
extent permitted under generally applicable zoning requirements even if those
facilities provide functionally equivalent services. H.R. Conf. No. 104-458, at 208
(1996), reprinted in 1996 U.S.C.C.A.N. 124, 222. Linet has not shown that he was
precluded from proposing an alternative cell site and did not present any evidence
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that an alternative site would adversely effect Metro PCS’ cellular coverage.
Moreover the alternative site utilized by the other provider may have had less of an
impact or no impact on property values or otherwise not raised the same concerns
as the golf course site proposed by Linet. As the district court noted, the
Telecommunications Act does not prevent the Village from treating two applicants
different, it just prevents it doing so unreasonably.
Due Process
Linet argues that his due process relates back to his “bad challenge claim” in
his original complaint. Put differently, he wants us to read the § 1983 claim in his
original complaint filed in district court as a petition for writ of certiorari to review
the Village’s decision under Florida law. If we do not, Linet correctly concedes
that his state law due process claim in his amended complaint is barred by the 30-
day statute of limitations. See Fla. R. App. P. 9.100. Linet however has identified
no authority to support this interpretation.
His original complaint makes no mention of Florida procedure or a state law
claim. His two claims in this complaint are limited to the Telecommunications Act
and § 1983. Only the Telecommunications Act claim is legally cognizable.
Moreover pursuant to 28 U.S.C. § 1367 (c)(3) the district court could decline to
exercise supplemental jurisdiction over this claim once the Telecommunications
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Act claim was dismissed. The district court therefore correctly dismissed Linet’s
state law due process claim. See Am. Riviera Real Estate Co. v. City of Miami
Beach, 735 So.2d 527 (Fla.3d DCA 1999).
Alter or Amend the Judgment
Finally Linet appeals the district court’s denial of his motion to amend or
alter the final judgment under Federal Rule of Civil Procedure 59(e). Linet’s
motion to the district court urged it to reconsider its ruling because Linet disagreed
with the district court’s treatment of certain facts and its legal conclusions. His
motion was essentially a motion to reconsider the district court’s prior summary
judgment order. Linet however cannot use a Rule 59(e) motion to relitigate old
matters, raise argument or present evidence that could have been raised prior to the
entry of judgment. See Stone v. Wall, 135 F.3d 1438, 1442 (11th Cir. 1998); 11
Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and
Procedure § 2810.1 (2d ed. 1995). The district court correctly denied Line’s
motion to amend or alter the judgment.
AFFIRMED.
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