                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-24-2002

Nextel Comm v. Margate
Precedential or Non-Precedential: Precedential

Docket No. 00-4282




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Recommended Citation
"Nextel Comm v. Margate" (2002). 2002 Decisions. Paper 602.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/602


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PRECEDENTIAL

       Filed September 24, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-4282

NEXTEL COMMUNICATIONS OF THE
MID-ATLANTIC, INC.,

       Appellant,

v.

CITY OF MARGATE, a Municipal Corporation of the
State of New Jersey; THE ZONING BOARD OF
ADJUSTMENT FOR THE CITY OF MARGATE,
NEW JERSEY; A. RALPH PERONE,

Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 00-cv-05137)
District Judge: Honorable Joseph E. Irenas

Argued: February 25, 2002

Before: ROTH, FUENTES, and GIBSON,*
Circuit Judges.

(Filed: September 24, 2002)
_________________________________________________________________

* The Honorable John R. Gibson, United States Court of Appeals for the
Eighth Circuit, sitting by designation.


       Kimberly D. Sutton, Esquire
        (ARGUED)
       Obermayer, Rebmann, Maxwell &
        Hippel, LLP
       20 Brace Road, Suite 300
       Cherry Hill, New Jersey 08034
       For Appellant Nextel Communications
       of the Mid-Atlantic, Inc.

       John C. Matthews, Esquire
        (ARGUED)
       1125 Atlantic Avenue, Suite #540
       Atlantic City, New Jersey 08401
       For Appellee The Zoning Board of
       Adjustment for the City of Margate

       Christopher M. Baylinson, Esquire
        (ARGUED)
       Keith A. Davis, Esquire
       Perskie, Nehmad & Perillo, P.C.
       P.O. Box 730
       Somers Point, New Jersey 08244
       For Appellee A. Ralph Perone

OPINION OF THE COURT

JOHN R. GIBSON, Circuit Judge:

Nextel Communications of the Mid-Atlantic, Inc., appeals
from the denial of its motion for preliminary injunction
against the City of Margate, New Jersey, the Zoning Board
of Adjustment for the City of Margate, and A. Ralph Perone.
The essence of Nextel’s argument is that it is entitled to
relief under the Federal Telecommunications Act of 1996,
see 47 U.S.C. S 332(c)(7) (Supp. V 1999), as a result of the
Defendants’ efforts to reopen hearings on Nextel’s
construction of a previously approved telecommunications
facility. Because Nextel’s claims are not yet ripe, we vacate
the district court’s order and remand with directions to
dismiss without prejudice.

On October 4, 1999, Nextel entered into a lease
agreement with Margate Towers Condominium Association,

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Inc. The agreement gave Nextel permission to place twelve
communication antennas and an eight-foot by fourteen-foot
equipment cabinet on the roof of Margate Towers, an
eleven-story building containing condominium units. In
anticipation of the lease agreement, Nextel submitted a
Staff Committee Review Application to the Land Use
Administrator for the City of Margate. Nextel also submitted
an Application for Action by the Zoning Board, requesting
a "D Variance" to allow construction of the twelve antennas
and equipment cabinet. Both applications referred to an
eight-foot by fourteen-foot equipment cabinet.

A hearing before the Zoning Board was scheduled and
interested property owners were given public notice. Again,
both the notice and hearing agenda stated the planned
equipment cabinet measured eight feet by fourteen feet. At
the hearing, however, Kevin Wolfe, a land surveyor
testifying on behalf of Nextel, stated the equipment cabinet
would measure five and one-half feet by fourteen feet. This
testimony was in accordance with plans submitted to the
Zoning Board (and placed on file with the City of Margate)
by Nextel.

Following the hearing, the Zoning Board unanimously
approved Nextel’s application, specifically referring to the
equipment cabinet as eight feet by fourteen feet in its
Resolution and stating that "[t]he proposed installation will
be virtually invisible to any neighbors or passer-by of this
site." A Notice of Decision was issued by the Zoning Board
indicating issuance of the Resolution and approval of the
eight-foot by fourteen-foot equipment cabinet. The forty-five
day period for appealing the Zoning Board’s Resolution
passed without any party bringing an action seeking review,
see N.J. Ct. R. 4:69-6, and Nextel was issued a building
permit on February 8, 2000.
While construction was underway, Perone, a former
municipal court judge in Margate who occupied the top-
floor condominium immediately under the equipment
cabinet, and who owned other units, brought an action in
New Jersey state court seeking preliminary injunctive relief
precluding Nextel from going forward with the project. He
complained that: (1) Nextel’s work had already damaged the
roof ’s protective membrane, resulting in water damage to

                                3


one of his units, and that further damage was likely; (2) the
"equipment shack," which Nextel refused to relocate, would
constitute an eyesore interfering with his use and
enjoyment of his units and reducing their market value; (3)
the noise from the telecommunications facility would
shatter his serenity and peace, interfere with his use and
enjoyment of his units, and reduce their market value; and
(4) potential health hazards would exist as a result of the
electromagnetic field created by the antennas. The state
court denied the application for a preliminary injunction on
May 8, 2000, and construction was completed May 30,
2000.

On July 13, 2000, Nextel was issued a Notice of Violation
and Order to Terminate by a construction official for the
City of Margate. The Notice asserted that Nextel had failed
"to install the roof top structure in accordance with prior
approvals and the construction documents submitted."
Specifically, the equipment cabinet was said to be
"approximately 3 ft 6 inches higher and 4 ft wider than
approved." The Notice also stated that no Certificate of
Approval would be issued until the violations were
corrected, and that a penalty of five hundred dollars per
week would be imposed for every week after August 4,
2000, that the violation remained outstanding. Nextel
states that it thereafter provided the construction official
with a copy of the Resolution, with which the equipment
cabinet was in compliance, but the Notice and Order were
not rescinded. Nextel also filed revised "as built" plans
showing the equipment cabinet as eight feet by fourteen
feet, but the Zoning Board refused to approve them. Nextel
then filed an appeal with the Atlantic County Board of
Appeals. Around the same time, the City of Margate also
served Nextel with two complaints for violating Land Use
Ordinances by failing to build in accordance with Zoning
Board approval.1

The Zoning Board sought a rehearing to address the
situation. Nextel believed the Zoning Board had no
_________________________________________________________________

1. Both Nextel’s appeal to the Atlantic County Board of Appeals and the
matter before the Margate Municipal Court have apparently been put on
hold pending resolution of this rehearing.

                                4
authority to hold a second hearing, and apparently
contacted John C. Matthews, the Zoning Board’s attorney,
to make that point. On September 19, 2000, Matthews
replied with a letter to Nextel’s attorney, asserting that it
was "clear that the zoning board has the ability to address
this situation," and that Nextel should reappear before the
Zoning Board to "address the inconsistencies in[Nextel’s]
application and the ultimate size of the cabinet that was
installed." Perone was also involved in this correspondence.
On September 22, 2000, his attorney sent a letter to
Matthews petitioning the Zoning Board to reconsider the
Nextel application. In that letter, Perone’s attorney stated
that he was aware that: (1) "the City of Margate Subcode
Official issued to Nextel a Notice of Violation and Order to
Terminate"; and (2) that Nextel’s attorney had written to
Matthews arguing that it was unnecessary "for an applicant
to return to the Board to be relieved of a condition of
approval." Perone’s attorney went on to state that "[s]hould
Nextel fail to appear back before the Board when ordered to
do so, the case law is clear that the Board has the authority
to rescind the approval previously granted based upon the
misrepresentation, whether intentional or inadvertent,
made during the initial proceeding."

On September 26, 2000, Perone’s attorney sent another
letter to Matthews. That letter mentioned a September 22
letter sent by Nextel’s attorney challenging Perone’s right to
petition the Zoning Board for rehearing and reiterated
Perone’s position on the matter. Finally, also on September
26, Matthews sent a second letter to Nextel’s attorney,
informing her that the Zoning Board had reviewed his letter
of September 19, agreed with the contents of that letter,
and was expecting Nextel "to come back before the Board
on October 19, 2000 at 7:30 P.M. in order to have the
Board reconsider this matter." The letter went on to state
that "[t]here was clearly a mistake involving this
application," because both the plans submitted by Nextel
and the testimony of Nextel’s witness at the hearing,
referred to an equipment cabinet measuring five feet by
fourteen feet, while the actual cabinet was "far larger." The
letter closed by stating that if Nextel chose not to appear,
"the Board has the authority to reopen this matter on its
own." The day of the rehearing, Nextel brought this action

                                5


in the district court, asserting that, among other things, the
Zoning Board was discriminating against Nextel, prohibiting
Nextel from providing services, and attempting to regulate
placement of Nextel’s equipment on the basis of concerns
over radio frequency emissions, all in contravention of the
Telecommunications Act of 1996.2 The telecommunications
facility on top of Margate Towers remains up and running.
_________________________________________________________________

2. The Telecommunications Act of 1996 provides in relevant part:

       (7) Preservation of local zoning authority
       (A) General authority

       Except 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 modification of personal wireless service facilities.

       (B) Limitations

       (i) The 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.

       (ii) A State or local government or instrumentality thereof shall act
       on any request for authorization to place, construct, or modify
       personal wireless service facilities within a reasonable period of time
       after the request is duly filed with such government or
       instrumentality, taking into account the nature and scope of such
       request.

       (iii) Any decision by a State or local government or instrumentality
       thereof to deny a request to place, construct, or modify personal
       wireless service facilities shall be in writing and supported by
       substantial evidence contained in a written record.

       (iv) No state or local government or instrumentality thereof may
       regulate the placement, construction, and modification of personal
       wireless service facilities on the basis of the environmental effects of
       radio frequency emissions to the extent that such facilities comply
       with the Commission’s regulations concerning such emissions.

       (v) Any person adversely affected by any final action or failure to act
       by a State or local government or any instrumentality thereof that

                                6


I.

In Felmeister v. Office of Attorney Ethics, 856 F.2d 529
(3d Cir. 1988), we recognized that "[t]he ripeness doctrine,
like other justiciability doctrines, derives ultimately from
the requirement in Article III of the United States
Constitution that federal courts are only empowered to
decide cases and controversies. ‘Even when the
constitutional minimum has been met, however, prudential
considerations may still counsel judicial restraint.’ " Id. at
535 (quoting Action Alliance of Senior Citizens v. Heckler,
789 F.2d 931, 940 n.12 (D.C. Cir. 1986)). Ripeness is an
issue we must raise sua sponte if the parties do not raise
it, id., and is applicable to cases involving motions for
preliminary injunction, see Acierno v. Mitchell , 6 F.3d 970,
973 (3d Cir. 1993).
The Supreme Court has explained that the basic
rationale of the ripeness doctrine "is to prevent the courts,
through avoidance of premature adjudication, from
entangling themselves in abstract disagreements over
administrative policies, and also to protect the agencies
from judicial interference until an administrative decision
has been formalized and its effects felt in a concrete way by
the challenging parties." Abbott Lab. v. Gardner, 387 U.S.
136, 148-49 (1967). In analyzing ripeness we "evaluate both
the fitness of the issues for judicial decision and the
hardship to the parties of withholding court consideration."
Id. at 149.

As to an issue’s fitness for judicial review, we have
previously stated that:

       Whether a question is fit for judicial review depends
       upon factors such as whether the agency action is
_________________________________________________________________

       is inconsistent with this subparagraph may, within 30 days after
       such action or failure to act, commence an action in any court of
       competent jurisdiction. The court shall hear and decide such action
       on an expedited basis. Any person adversely affected by an act or
       failure to act by a State or local government or any instrumentality
       thereof that is inconsistent with clause (iv) may petition the
       Commission for relief.

47 U.S.C. S 332(c)(7).

                                7


       final; whether the issue presented for decision is one of
       law which requires no additional factual development;
       and whether further administrative action is needed to
       clarify the agency’s position, for example, when the
       challenged prescription is discretionary so that it is
       unclear if, when or how the agency will employ it.

Felmeister, 856 at 535-36 (internal quotation marks
omitted) (quoting Action Alliance, 789 F.2d at 940). Applying
those factors to the case before us here, we conclude the
issues raised by Nextel are not fit for judicial review at this
time.

To begin with, the process that Nextel challenges is not
final. "[T]he finality requirement is concerned with whether
the initial decisionmaker has arrived at a definitive position
on the issue that inflicts an actual, concrete injury . . . ."
Williamson County Reg. Planning Comm’n v. Hamilton Bank,
473 U.S. 172, 193 (1985). Here, the equipment cabinet
remains up and running. While it is true that there was
already one hearing resulting in a Resolution and that the
Zoning Board has refused to approve the "as built" plans at
this time, the possibility remains that the Zoning Board will
approve the equipment cabinet as built following the
rehearing. Cf. id. at 193-94 ("The Commission’s refusal to
approve the preliminary plat does not determine that issue;
it prevents respondent from developing its subdivision
without obtaining the necessary variances, but leaves open
the possibility that respondent may develop the subdivision
according to its plat after obtaining the variances. In short,
the Commission’s denial of approval does not conclusively
determine whether respondent will be denied all reasonable
beneficial use of its property, and therefore is not a final,
reviewable decision."); Felmeister, 856 F.2d at 537 ("It may
be that plaintiffs’ proposed advertisements will meet with
the Committee’s approval, and if that were the outcome of
the agency action, there would indeed be no case or
controversy to adjudicate because the concrete effects of
the agency action would be favorable to plaintiffs."); 15
James Wm. Moore et al., Moore’s Federal Practice
S 101.76[1][c] (3d ed. 1997) (stating that one of the
purposes of the rule requiring finality is to ensure"that the
agency is not precluded from correcting any errors before

                                8


rendering a final decision"). Nextel argues it is challenging
the Zoning Board’s authority to reopen the hearings, but
merely reopening the hearings, without more, does not
violate the Telecommunications Act of 1996, and violation
of the Telecommunications Act of 1996 forms the basis of
our jurisdiction here.

In Felmeister we concluded the second and third factors
in the fitness analysis weighed in favor of allowing the
administrative process to go forward because "the case
presented by plaintiffs not only requires additional factual
development, but the Committee has not been given the
opportunity to clarify its position in this case." 856 F.2d at
537. The same is true here. Should the Zoning Board
interfere with the operation of Nextel’s previously approved
telecommunications facility, Nextel may well have claims
arising under the Telecommunications Act of 1996 and
perhaps incur significant damages. However, this can only
be determined after the Zoning Board reaches its ultimate
decision. Cf. id. ("[W]ithout administrative action by the
Committee regarding the specific advertisements proposed
by the plaintiffs, the Committee’s position is not only
unclear, it is purely hypothetical.").

As to the hardship to the parties of withholding court
consideration, we have stated that "in order for the parties’
hardship to be sufficient to overcome prudential interests in
deferral, that hardship must be both immediate and
significant." Id. Here, as we have stated, Nextel’s
telecommunications facility received the necessary
administrative clearance, in addition to the Zoning Board’s
decision, and remains up and running. Nevertheless, Nextel
claims that allowing the rehearing to go forward exposes it
to hardship in the form of time and expense, as well as the
possibility of further litigation. However, "we do not believe
that such harm . . . is sufficiently strong to outweigh the
unfitness for review we have already described." Id. at 538;
cf. Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726,
735 (1998) ("The ripeness doctrine reflects a judgment that
the disadvantages of a premature review that may prove too
abstract or unnecessary ordinarily outweigh the additional
costs of--even repetitive--postimplementation litigation.").

                                9


II.

In accordance with the above, we vacate the district
court’s order on Nextel’s motion for preliminary injunction
and remand with directions to dismiss Nextel’s claims
without prejudice.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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