Michael Linet, Inc. v. Village of Wellington, FL

                                                                     [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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