Posted by: Patricia Salkin | January 27, 2019

Third Circuit Court of Appeals Decides that Oral Zoning Decision Isn’t a Final Action under the TCA

This post was authored by Amy Lavine, Esq.
The Third Circuit held in a January that a written decision is necessary to constitute a final action under the Telecommunications Act (TCA). Accordingly, T-Mobile’s challenge was found to be unripe when the only permit denial it had received was an oral decision from the zoning board. The court found that it was error to dismiss T-Mobile’s supplemental complaint as untimely, however, because the 30-day time period for bringing appeals wasn’t jurisdictional and the relation-back doctrine allowed later filings to cure its initial ripeness defect.

T-Mobile filed the lawsuit in this case in response to an oral decision on its permit application from the zoning board in the City of Wilmington, Delaware. The district court held that T-Mobile’s initial complaint was irreparably unripe, and the Third Circuit agreed on appeal that only a written decision denying a permit application can establish a final action under the TCA. The court emphasized, in particular, that the TCA requires zoning decisions to be in writing, and that under Delaware law a zoning board action only becomes final upon the filing of a written determination. Requiring a written decision also had practical value, the court explained:
Requiring a written decision focuses review on a particular, documented statement of reasons. It also prevents ambiguity with respect to when a claim can be brought. As the District Court here stated, to hold otherwise ‘would promote a pernicious ambiguity as to when that short period of time begins to run.’ And it promotes uniformity of federal procedures by clarifying when, across all jurisdictions, an action becomes final.
The court additionally noted that requiring a written decision to satisfy the finality requirement was consistent with the Supreme Court’s decision in T-Mobile South, LLC v. City of Roswell, and both the Eighth Circuit and the Eleventh Circuit had also taken the position that only a written decision could constitute a final action. Accordingly, the court clarified as a general rule that a zoning board’s oral decision is not a final action ripe for judicial review under the TCA.

T-Mobile also argued that the city had to issue a written decision soon enough after its oral decision to comply with the FCC’s shot clocks and to preserve its ability to obtain expedited judicial review as provided for in the TCA. As the court explained, however, this argument assumed that an oral permit denial, standing alone, could be a final action for the purposes of the shot clock requirements, and to adopt this view would essentially nullify the TCA’s requirement that a zoning denial be made in writing. The court held instead that the issuance of a written denial was the “action” that had to comply with the shot clocks, as any earlier oral denial was insufficient to constitute a final action. The court also found that T-Mobile’s concerns about the shot clocks were overstated and irrelevant, because the shot clocks begin to run as soon as a wireless provider files its application and “so it is already ticking before any oral decision is made.”

Finally, the court determined based on the text and context of the statute that the TCA’s 30-day time limit for seeking review wasn’t a jurisdictional requirement. As a result, it was error for the district court to have dismissed T-Mobil’s supplemental complaint as untimely, just because it was filed after the 30-day time period had expired. Rather, the supplemental complaint should have been deemed to relate back to the initial complaint and cure T-Mobile’s initial ripeness defect. As the court explained, in determining whether to apply the relation back doctrine, the relevant issue was whether or not there was a “common core of operative facts in the two pleadings.” T-Mobile satisfied this test because both its initial and supplemental complaints relied on the same core facts, and the zoning board’s written denial was merely a certification of its earlier oral decision. “Thus,” the court explained in conclusion, “the only question remaining is whether a complaint that relates back can cure an untimely initial complaint, and the answer is yes. The clear preference embodied in Rule 15 is for merits-based decision making.”

T Mobile Ne. LLC v. City of Wilmington, 913 F.3d 311 (3d Cir. 1/10/19).

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