Kinlow v. City of Milwaukee

Citation: 2 F. App'x 581Docket: No. 00-3159

Court: Court of Appeals for the Seventh Circuit; March 15, 2001; Federal Appellate Court

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Mr. Joel Kinlow, an African-American and president of TV-49, Inc., filed a lawsuit under 42 U.S.C. §§ 1981 and 1983 against the City of Milwaukee, alleging racial discrimination in the denial of a building permit for a television tower. The district court granted the City’s motion for summary judgment, which Kinlow and TV-49 appealed, but the decision was affirmed.

Kinlow has operated a television station since 1991 and sought to enhance his competitiveness in the Southeastern Wisconsin market by building a new tower in Milwaukee. Following guidance from Mr. Albert Dzierzak of the City’s Department of Building Inspection (DBI), Kinlow purchased land and secured necessary federal approvals from the FAA and FCC, incurring costs of $10,000 for these permits. After acquiring the property for $210,000, he complied with further requirements from DBI, including obtaining soil samples and tower footing plans, which cost an additional $10,000. 

In April 1997, Kinlow applied for the local construction permit, but due to Dzierzak's absence, Mr. David Kakatch reviewed the application and denied it, citing compliance issues with Milwaukee Code of Ordinances § 295-19-8-a regarding the tower's proximity to adjacent buildings. Kinlow then appealed to the Milwaukee Board of Zoning Appeals (the Board) for a variance, which was necessary due to the tower's height and the closeness of existing structures. A zoning specialist confirmed the need for a variance, noting multiple buildings within the required distance from the proposed tower. The Board held a hearing on the matter, during which a representative from the Department of City Development opposed the variance request.

Several buildings near Mr. Kinlow’s proposed tower are within 20% of its height, and the tower is only 151 feet from an apartment building, violating a Milwaukee ordinance that mandates a 150-foot distance from residences. The DCD representative raised concerns regarding ice falling from the tower during winter, potentially harming residents and patrons of the nearby Pick N Save store. 

During a hearing, the representative noted that the proposed tower does not align with the Transmission Tower Policy Statement established by the Milwaukee Common Council, which serves as a guideline for tower placements. The policy emphasizes the need for towers to accommodate multiple users, be aesthetically pleasing, and not concentrate broadcast towers within the city. Mr. Kinlow’s tower fails to meet these criteria.

Mr. Kinlow was questioned about his unsuccessful attempts to mount his antenna on existing towers and his lack of plans for a multi-user design. He argued for a variance based on assurances from Mr. Dzierzak regarding the permit process, despite not having written confirmation and obtaining FCC and FAA permits prior to applying for the local permit. 

Objections to the tower were raised by a Milwaukee alderman’s representative and nearby property owners, citing safety concerns and potential declines in property value due to the presence of multiple towers, though none of the objectors lived within the 20% height radius or were directly adjacent to Mr. Kinlow's property. 

Ultimately, the Board determined that the proposed tower did not comply with the Tower Policy Statement and that the local property owners would face detriment from safety issues and decreased property values. Although Mr. Kinlow faced a financial hardship from his investments, the Board deemed it self-imposed and insufficient for granting a variance. Consequently, the Board denied the variance, a decision later upheld by the Milwaukee County Circuit Court.

Mr. Kinlow and TV-49 filed a lawsuit claiming that the City denied their permit to construct a tower without due process, violating the 14th Amendment, and alleging race discrimination under 42 U.S.C. § 1981. The City sought summary judgment, which the district court granted, ruling that Mr. Kinlow and TV-49 did not demonstrate a property right to the permit that warranted due process protections. The court also rejected the race discrimination claim, stating they failed to show that other television companies, which received permits, were similarly situated or belonged to a non-protected class. On appeal, Mr. Kinlow and TV-49 did not specify the statutory basis for their race discrimination claim and appeared to shift their argument towards an equal protection claim. However, to succeed on either claim, they needed to provide evidence that similarly situated individuals in an unprotected class were treated differently. The district court noted that other companies were not similarly situated due to different plan examiners and the 1997 transmission tower policy. Mr. Kinlow and TV-49 claimed that Channels 58, 24, and 10-36 were treated differently, but they did not present sufficient evidence to establish that these companies were comparably situated to them. Specifically, the permit granted to Channel 58 was issued before the policy was enacted and included conditions that distinguished it from TV-49's situation. Thus, Mr. Kinlow and TV-49 failed to establish a prima facie case for either claim.

In evaluating whether parties are 'similarly situated,' courts must consider all relevant factors, including adherence to the same standards (Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617). Channels 10-36, part of MATC, was granted a permit to build a tower capable of supporting 100 broadcast stations, based on its compliance with the Transmission Tower Policy Statement aimed at facilitating multiple users. In contrast, Channel 24 (B. F Broadcasting) received a variance for a single antenna tower in 1975, prior to the adoption of the Transmission Tower Policy Statement, which TV-49 and Mr. Kinlow argued was unfair treatment. However, the City demonstrated that the officials who approved Channel 24's variance were not involved in the 1997 denial of Mr. Kinlow's application, highlighting that different decision-makers rarely render decisions that are similarly situated in all respects. Furthermore, the City cited evidence that Channel 12's application, which sought to extend its existing tower's height, was denied based on the Transmission Tower Policy Statement. Mr. Kinlow and TV-49 failed to provide evidence of racially motivated differential treatment, asserting only that they complied with all requirements for a permit. Their claim did not adequately address the City’s evidence that other companies received permits under different conditions or prior to the policy’s implementation. The court's analysis of 'similarly situated' claims aligns with standards used in employment discrimination and equal protection cases. Ultimately, the court upheld the summary judgment in favor of the City. Additionally, Mr. Kinlow and TV-49 cited Freeman v. Burlington Broadcasters, Inc., arguing that federal authorizations preempt the City’s denial, but this did not alter the court's findings.

The Second Circuit’s Freeman decision addresses the federal preemption of local zoning authority regarding the regulation of broadcast tower permits, specifically ruling that local authorities cannot condition these permits on radio frequency interference requirements. However, in Mr. Kinlow's case, the City’s denial of his application was unrelated to radio frequency interference, rendering the Freeman case irrelevant. The court affirmed the district court's summary judgment in favor of the City, noting that Mr. Kinlow and TV-49 failed to prove that they were similarly situated to broadcast companies that received permits. Testimony from Mr. Dzierzak revealed that Mr. Kinlow had not formally applied for the tower permit despite being informed of the necessary steps. Additionally, while Mr. Kinlow's complaint mentioned that Channel 18 was granted a permit, there was insufficient evidence to establish its corporate identity or the timing of its permit, leading the court to consider the issue waived, referencing Pond v. Michelin North America, Inc. for precedent on inadequately developed issues.