                              In the
 United States Court of Appeals
                For the Seventh Circuit
                          ____________

No. 03-2216
SPRINT SPECTRUM L.P.,
                                              Plaintiff-Appellant,
                                 v.


THE CITY OF CARMEL, INDIANA,
THE BOARD OF ZONING APPEALS FOR
THE CITY OF CARMEL AND CLAY TOWNSHIP,
and MICHAEL P. HOLLIBAUGH, in his capacity as
Director of the Department of Community Services,
Carmel, Indiana,
                                  Defendants-Appellees.

                          ____________
            Appeal from the United States District Court
     for the Southern District of Indiana, Indianapolis Division.
           No. IP 02-1133—John Daniel Tinder, Judge.
                          ____________
   ARGUED DECEMBER 8, 2003—DECIDED MARCH 22, 2004
                   ____________


 Before DIANE P. WOOD, EVANS and WILLIAMS, Circuit
Judges.
  EVANS, Circuit Judge. One section of the historical
Telecommunications Act of 1996 gives cellular telephone
service providers the right to challenge local zoning deci-
sions in federal court. 47 U.S.C. § 332(c)(7)(B)(v). While on
its face a simple notion, “this statute fairly bristles with
2                                               No. 03-2216

potential issues . . . .” Cellular Tel. Co. v. Town of Oyster
Bay, 166 F.3d 490, 494 (2nd Cir. 1999). Our case today
concerns one of those issues—when is a land use decision a
“final action” in order to create federal subject matter
jurisdiction. Specifically, we must examine whether the Act
modifies the traditional analysis, enunciated in Williamson
County Regional Planning Commission v. Hamilton Bank,
473 U.S. 172 (1985), for determining when a complaint
challenging a local land use decision is ripe for federal
adjudication.
  In 2001, Sprint, a nationwide provider of wireless tele-
phone services, sought to improve its service in the India-
napolis area. In order to avoid the need to build its own
antenna tower, Sprint entered into a lease with Dr. Edwin
Zamber, a city of Carmel (Indiana) resident, to place an
antenna on his property. Carmel is just a stone’s throw
north of Indianapolis, and Zamber already had an existing
135-foot-high ham radio tower on his property which met
Sprint’s technical criteria.
  Sprint applied to Carmel’s Department of Community
Services for an improvement location permit, which the city
issued. The permit allowed Sprint to install special low-
profile antennas on the sides of Zamber’s existing tower, as
well as to construct a ground-level equipment shelter.
Richard Deer, a neighboring property owner, took exception
to the plan and appealed the issuance of the permit to the
Carmel/Clay (Township) Board of Zoning Appeals (BZA).
Deer alleged that the proposed Sprint antenna was not a
permitted use for residential districts under the existing
zoning ordinance and that a special use permit, or variance,
was required before plans for the tower could proceed.
  Shortly after Sprint began constructing the antenna, the
Carmel building commissioner issued a stop work order on
the project, and Michael Hollibaugh, director of the Depart-
ment of Community Services, sent Sprint a letter revoking
No. 03-2216                                                3

its permit. Hollibaugh stated that, because Sprint was
installing an access road at the Zamber residence, there
needed to be a subdivision and primary plat amendment in
order to validate the new access easement, which had to be
approved by another agency, the Plan Commission. Sprint
appealed to the BZA, arguing that the local ordinances did
not require subdivision plat approvals.
  The BZA initially dismissed Sprint’s subdivision appeal
as untimely, a decision that was reversed by a state court.
Subsequently, the BZA heard both Sprint’s subdivision ap-
peal and the zoning appeal. After multiple public hearings,
the BZA upheld Deer’s objection. It found that the “use for
which the [improvement location permit] was granted (a
commercial antenna and unstaffed, unoccupied commercial
radio equipment shelter) is not a Permitted Use under the
S-1 Residential District and related sections of the
Camel/Clay Zoning Ordinance.” As a result, Sprint was
required to seek a special use permit. Similarly, the BZA
rejected Sprint’s subdivision appeal, holding that Sprint
needed to seek subdivision plat approval from the Plan
Commission.
  Sprint responded to this action with a complaint in fed-
eral court seeking injunctive, declaratory, mandamus, and
other relief. Among other claims, Sprint alleged violations
of the Telecommunications Act, 47 U.S.C. § 332(c)(7)(B),
arguing that the BZA’s decisions were not supported
by substantial evidence and unreasonably discriminated
against Sprint. Specifically, Sprint argued, the local zoning
ordinances do not require it to seek a special use permit or
subdivision plat approval. The district court granted the
defendants’ Rule 12(b)(1) motion and dismissed the case for
lack of subject matter jurisdiction. Relying on Williamson
County, the court concluded that because Sprint could still
apply for a special use permit, the BZA had not yet made a
final decision and the case was not ripe for federal court
4                                                 No. 03-2216

review. Sprint appeals,1 arguing that the court’s reliance on
Williamson County was misplaced, since the Act modified
the relationship between local zoning boards and the
federal courts.
  We review the court’s grant of the Rule 12(b)(1) motion de
novo, accepting the complaint’s well-pleaded factual
allegations as true and drawing reasonable inferences from
those allegations in Sprint’s favor. However, “[w]e presume
that federal courts lack jurisdiction ‘unless the contrary
appears affirmatively from the record.’ ” Renne v. Geary, 501
U.S. 312, 316 (1991) (internal quotations marks and
citations omitted). It is Sprint’s responsibility to clearly
allege facts that invoke federal court jurisdiction.
  In Aegerter v. City of Delafield, Wis., 174 F.3d 886 (7th
Cir. 1999), we examined the relationship between state and
local government’s traditional land use power and the
Telecommunications Act:
    The Act empowers state and local governments to
    regulate the placement of facilities for personal wireless
    services, but their authority is not unfettered. They
    must now support any decision to deny certain requests
    for those facilities with a written opinion that is based
    on substantial evidence in a written record, and they
    may not “unreasonably discriminate among providers of
    functionally equivalent services.” See 47 U.S.C. §
    332(c)(7)(B)(iii) and (B)(i)(I).
Id. at 887-88.
  To enforce these provisions, Congress provided that an
action can be brought in “any court of competent juris-
diction” by “[a]ny person adversely affected by any final


1
  Sprint also raised claims under the Fifth and Fourteenth
Amendments to the Constitution. It does not appeal the district
court’s decision that those claims were not ripe.
No. 03-2216                                                        5

action or failure by a State or local government or any
instrumentality thereof that is inconsistent with
[§ 332(c)(7)] . . . .” 47 U.S.C. § 332(c)(7)(B)(v) (emphasis
added). This case concerns whether the decisions by the
BZA regarding Sprint’s efforts to construct an antenna
constitute a “final action” within the meaning of that
provision.2
  In interpreting the phrase “final action,” we emphasize
that Congress does not write statutes in a vacuum. For one
thing, it is guided by prior judicial decisions, and so it is
well-recognized that “[t]he normal rule of statutory con-
struction is that if Congress intends for legislation to
change the interpretation of a judicially created concept, it
makes that intent specific.” Midlantic Nat’l Bank v. N.J.
Dep’t of E.P., 474 U.S. 494, 501 (1986) (internal citation
omitted). See also Davis v. Michigan Dep’t of Treasury, 489
U.S. 803, 813 (1989) (“When Congress codifies a judicially
defined concept, it is presumed, absent an express state-
ment to the contrary, that Congress intended to adopt the
interpretation placed on that concept by the courts.”).
Therefore, prior to examining the Telecommunications Act,
we begin with the traditional ripeness requirements for
challenges to local land use decisions.
  It is well-established that the existence of a case and
controversy is a prerequisite for the exercise of federal


2
   Significantly, a BZA is the highest administrative authority
under Indiana law to hear appeals of decisions under local zoning
ordinances. Ind. Cod. § 35-7-4-918.1. Indiana law does, however,
provide for review of BZA decisions through the issuance of a writ
of certiorari by the circuit or superior court of the county in which
the affected premises are located. Ind. Code § 36-7-4-1003. Sprint
has not done so. However, the Telecommunications Act does not
require the exhaustion of all state judicial remedies before
bringing suit in federal court. See AT&T Wireless PCS, Inc. v.
Town of Porter, 203 F. Supp. 2d 985, 989 (N.D. Ind. 2002).
6                                                No. 03-2216

judicial power under Article III. One important element of
the “case” or “controversy” is satisfying the ripeness doc-
trine, see Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57
n.18 (1993) (stating that the doctrine derives from both
Article III and from prudential reasons for refusing to
exercise jurisdiction), which determines when a party may
go to court. Ripeness is, essentially, a question of timing.
See Reg’l Rail Reorganization Act Cases, 419 U.S. 102, 140
(1974). The doctrine’s basic rationale “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 Labs. v. Gardner, 387 U.S.
136, 148-49 (1967).
  Based on these principles, the Supreme Court has
adopted specific ripeness requirements for cases challenging
land use decisions. As the Court held in Williamson County,
zoning authorities must be given an opportunity to “arrive[
] at a final, definitive position regarding how it will apply
the regulations at issue to the particular land in question”
before its owner has a ripe challenge. Williamson County,
473 U.S. at 191. The Court has further delineated what
constitutes such a final decision. In Williamson County it
held that the plaintiff’s taking and due process claims were
not ripe because it did not seek a variance. Id. at 193-94. In
MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340,
351-52, the plaintiff’s taking claim was premature because,
even though a planning commission rejected the plaintiff’s
development plan, the plaintiff failed to submit less inten-
sive plans. With these two cases, the Supreme Court
“erected imposing barriers . . . to guard against the federal
courts becoming the Grand Mufti of local zoning boards.”
Hoehne v. County of San Benito, 870 F.2d 529, 532 (9th Cir.
1989).
No. 03-2216                                                  7

  Noticeably, with regard to challenges to land use deci-
sions, “[t]his Circuit has read Williamson broadly . . . .”
Forseth v. Village of Sussex, 199 F.3d 363, 370 (7th Cir.
2000). The one significant exception involves “bona fide
equal protection claims . . . .” Id. However, to demonstrate
an equal protection claim in the land use context, the claim
must involve a fundamental right or suspect class, or the
plaintiff must demonstrate “governmental action wholly
impossible to relate to legitimate governmental objectives.”
Id. at 371 (internal citations omitted). For example, the
claim must be based on “the malicious conduct of a govern-
mental agent, in other words, conduct that evidences a
‘spiteful effort to “get” him for reasons wholly unrelated to
any legitimate state objective[.]’ ” Id. at 371 (quoting Esmail
v. Macrane, 53 F.3d 176, 180 (7th Cir. 1995)). Sprint does
not fall within this limited exception to Williamson County.
Cf. Forseth, 199 F.3d at 371 (president of the village board
denied plaintiff’s equal protection under the law when he
conditioned approval of development plan on his receipt of
“significant personal pecuniary gain”).
  With this background, we turn to the Telecommunications
Act. As we have just discussed, there is a specific ripeness
doctrine for challenges to land use decisions, and we see no
significant difference simply because Sprint’s claim arises
from a statute rather than the Constitution. Therefore, in
analyzing the Act we focus on those cases rather than more
general ripeness standards, see, e.g., Abbott Labs., 387 U.S.
at 148, or requirements arising from other statutes, see,
e.g., Bavido v. Apfel, 215 F.3d 743, 748 (7th Cir. 2000)
(discussing exhaustion requirement in Privacy Act, 5 U.S.C.
§ 552(a)(g)(i ), relied on by Sprint). Nevertheless, Sprint
argues that Williamson County should not be read into the
Telecommunications Act. To do so, Sprint contends, “would
create too many time-consuming procedural hurdles,” which
would defeat the Act’s purpose—to encourage the “rapid
deployment” of wireless communication. 47 U.S.C.
8                                                 No. 03-2216

§ 309(j)(3)(A). Congress specifically enumerated this stated
purpose in three provisions of the Act. First, the Act
requires local authorities to act on requests to “place, con-
struct, or modify personal wireless service facilities within
a reasonable period of time . . . .” 47 U.S.C.
§ 332(c)(7)(B)(ii). Congress, moreover, enacted a 30-day
limitations period in which personal wireless service pro-
viders are to file claims under the Act after there has been
final action. Id. at § 332(c)(7)(B)(v). Finally, Congress
directed federal courts to hear such claims on “an expedited
basis.” Id. Based on these provisions, Sprint argues that the
term “final action” under § 332(c)(7)(B) only requires that
a service provider “obtain a definitive ruling from the local
government solely on the issues presented to the local
authorities.” We disagree. Examining both the language of
the Act as well as its legislative history, we do not believe
that Congress intended to modify the traditional standard
for determining whether a land use dispute is ripe for
federal adjudication.
  To begin, although creating a federal cause of action,
Congress explicitly ensured that the Act would not intrude
upon the traditional authority of local governments over
land use matters. H.R. Conf. Rep. No. 104-458, at 207-08
(1996), reprinted in 1996 U.S.C.C.A.N. 124, 222. As codified,
§ 332(c)(7) is entitled “Preservation of local zoning author-
ity.” 47 U.S.C. § 332(c)(7). That section expressly states that
“[e]xcept as provided in this paragraph, nothing in [the] Act
shall limit or affect the authority of a State or local govern-
ment or instrumentality thereof over decisions regarding
the placement, construction, and modification of personal
wireless service facilities.” Id. at § 332(c)(7)(A). Indeed, the
history behind this provision is significant. As drafted in
the House of Representatives, the Act would have allowed
the FCC total federal preemption of state authority to
regulate tower siting. H.R. Conf. Rep. No. 104-458, at 207
(1996), reprinted in 1996 U.S.C.C.A.N. 124, 221-22. The
No. 03-2216                                                9

Conference Committee, however, rejected this approach,
seeking to leave zoning authority in the hands of state and
local governments. As the Conference Committee explained:
“The conference agreement creates a new [§ 332(c)(7)] which
prevents [FCC] preemption of local and State land use
decisions and preserves the authority of State and local
governments over zoning and land use matters except in
the limited circumstances set forth in the conference
agreement.” Id.
  Other portions of the Act further buttress the conclusion
that Congress did not intend to modify the traditional
ripeness requirements for challenging local land use
decisions. For example, under Williamson County a prop-
erty owner must exhaust all available state remedies for
compensation prior to bringing a taking claim to federal
court. Williamson County, 473 U.S. at 193-94. Congress,
however, explicitly modified this requirement. As Congress
noted, the term “final action” means “final administrative
action at the State or local government level so that a party
can commence action under the [Act] rather than waiting
for the exhaustion of any independent State court remedy
otherwise required. H.R. Conf. Rep. No. 104-458, at 9
(1996), reprinted in 1996 U.S.C.C.A.N. 124, 223. See, e.g.,
AT&T Wireless PCS, Inc. v. Town of Porter, 203 F. Supp. 2d
985, 989 (N.D. Ind. 2002); Laurence Wolf Capital Mgmt.
Trust v. City of Ferndale, 176 F. Supp. 2d 725, 727 (E.D.
Mich. 2000). This exercise clearly teaches that Congress
was aware of Williamson County and knew how to modify
its holding when that is what it wanted to do. Absent
similar explicit language, in either the Act itself or its
legislative history, we will not similarly presume that
Congress intended to modify Supreme Court precedent with
regard to when a challenge to a local land use decision is
ripe for consideration in a federal court.
  Thus, since we hold that the Act did not modify the
traditional analysis regarding whether a land use claim is
10                                               No. 03-2216

ripe, we analyze Sprint’s complaint under the standards
enunciated in Williamson County. In doing so, we agree
with the district court that Sprint’s complaint is not yet ripe
for federal judicial review. The BZA’s decisions do not
completely foreclose Sprint from establishing wireless
telecommunications facilities at the Zamber site. In fact,
those decisions merely map a procedural route that Sprint
must take in order to proceed with its project. It must
submit a plan to the commission and apply for a special use
permit, neither one of which Sprint has done. Indeed, 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.
See 13A C. Wright, A. Miller & E. Cooper, Federal Practice
and Procedure: Jurisdiction 2d § 3532 (In gauging the
fitness of the issues in a case for judicial resolution, courts
are centrally concerned with “whether the case involves
uncertain or contingent future events that may not occur as
anticipated, or indeed may not occur at all.”). The possibil-
ity remains that the city of Carmel will still approve
Sprint’s project. As the Supreme Court has recognized, local
zoning authorities are flexible institutions that may give
back with one hand what they have taken with the other.
MacDonald, 477 U.S. at 350. See also Suitum v. Tahoe Reg’l
Planning Agency, 520 U.S. 725, 738 (1997) (Williamson
County “responds to the high degree of discretion character-
istically possessed by land-use boards in softening the
strictures of the general regulations they administer.”). If
that is indeed the outcome, there would be no case or
controversy to adjudicate because the BZA’s action would be
favorable to Sprint. Although Sprint at some point might
have a mature claim, for now it must allow the local
authorities to act with finality before pursuing a claim in
federal court.
  This case epitomizes the rationale behind the ripeness
doctrine. Sprint argues, for example, that it would be futile
No. 03-2216                                               11

to go back to the zoning board because it is not eligible for
a special use permit or subdivision plat approval. These are
precisely the types of issues that should be presented first
to the local land use authority, which has a better under-
standing of the local ordinances. Sprint contends, moreover,
that returning to the zoning board prior to seeking litiga-
tion would involve “impracticalities, time delays, expense
and other inefficiencies.” Such harm is not, however,
sufficiently strong to outweigh the unfitness for review
embodied in the ripeness doctrine. See 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 unneces-
sary ordinarily outweigh the additional costs . . . .”).
  Finally, Sprint contends that requiring it to apply for a
variance would estop it from arguing in the future that it
was entitled to the location improvement permit as a
matter of right. Indiana courts, however, have not so held.
See, e.g., Metropolitan Bd. of Zoning Appeals v. Avis, 575
N.E.2d 33, 37 (Ind. App. 1991) (party requesting zoning
variance is not estopped from later arguing the variance
was not necessary); Metropolitan Dev. Comm’n of Marion
County v. Hari, 505 N.E.2d 116, 120 (Ind. App. 1987)
(petitioners’ variance request did not preclude them from
claiming in litigation that their properties came within the
nonconforming use exception to the zoning ordinance).
Furthermore, the City of Carmel concedes that Sprint has
preserved its right to challenge the plat and the special use
requirement.
  The judgment of the district court is AFFIRMED.
12                                        No. 03-2216

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—3-22-04
