In a decision that set new precedent, the U.S. Court of Appeals for the Third Circuit has revived T-Mobile’s challenge to a zoning decision that barred the company from building a cell tower in Wilmington, ruling that T-Mobile’s attempt to correct a prematurely filed lawsuit was enough to allow the case to proceed in Delaware federal court.
A three-judge panel of the appeals court Thursday reversed a Delaware district court ruling, which held that T-Mobile Northeast’s complaint was unripe because it was filed before the Wilmington Zoning Board of Adjustment issued a written decision blocking the company’s request to build a cell tower on top of the Claymore Senior Center.
T-Mobile had alleged in its November 2016 complaint that the city had a “pattern and practice” of withholding written decisions in land-use denials until the city is sued. The ZBA later issued a formal, written decision, but T-Mobile waited nearly one year to supplement its original complaint.
U.S. District Court Judge Eduardo C. Robreno in March granted summary judgment in favor of the city, ruling that the original complaint was unripe and that the supplemental complaint could not fix its flaws.
On appeal, Wilmington argued that the remedied complaint could not relate back to the original filing because the problems had already stripped the court of jurisdiction over the case.
Third Circuit Judge Kent A. Jordan on Thursday said that blocking a plaintiff from supplementing its complaint would create an “endless feedback loop” that would bar T-Mobile’s claims from ever being heard.
“If a supplemental complaint cannot cure an unripe complaint, an endless feedback loop would be created whereby the ripeness problem could never be overcome, even though, as here, the dispute later became obviously ripe,” Jordan wrote in a 43-page opinion.
Jordan said the timing of the of the ZBA’s denial had nothing to do with the court’s jurisdiction, and he remanded the case to the district court for further proceedings.
Jordan was joined in the ruling by Judges Richard L. Nygaard and Thomas I. Vanaskie. Vanaskie retired from the appeals court Jan. 1, but still took part in the argument and conference in the case.
An attorney for T-Mobile declined to comment Friday. Counsel for the city did not immediately respond to a call seeking comment on the ruling.
T-Mobile is represented by T. Scott Thompson and Leslie G. Moylan of Davis Wright Tremaine in Washington, D.C., and Jennifer C. Wasson and Alan R. Silverstein of Potter Anderson & Corroon in Wilmington.
The city is represented by Joseph Van Eaton, Gail Karish and Rebecca Andrews of Best, Best & Krieger in Washington, D.C., and attorneys from Wilmington’s law department.
The case is captioned T-Mobile Northeast v. City of Wilmington.