DePolo v. Tredyffrin Tp. Bd. of Supervisors, 835 F.3d 381 (3d Cir. 2016). Jeffrey DePolo is a ham radio enthusiast in Pennsylvania. He applied to defendant Zoning Hearing Board of Appeals (“ZHBA”) for a variance that would allow him to place a 180-foot antenna on his property so that he could communicate with other ham radio operators. The municipal zoning ordinance allowed only structures that were up to 35 feet tall. The ZHBA offered to allow a 65-foot high tower. When DePolo rejected that, the ZHBA denied his application.
Instead of appealing that decision through the Pennsylvania state court system, as he had the right to do (similar to the way actions in lieu of prerogative writ, such as this one involving a height variance, are handled in New Jersey), DePolo filed a complaint in federal court. In that lawsuit, he asserted that the municipal ordinance was preempted by a Federal Communications Commission regulation and by a related declaratory ruling by the FCC. The District Court granted a defense motion to dismiss, and DePolo appealed. Today, however, the Third Circuit dismissed his appeal without reaching the merits. Chief Judge McKee wrote the panel’s opinion.
Though most of Chief Judge McKee’s opinion was devoted to recounting the facts and procedural history, and to a discussion of the FCC’s regulation and declaratory ruling, ultimately what mattered was DePolo’s failure to pursue a state court appeal. The final few sentences of the opinion say it all:
“While DePolo was aggrieved by the ZHBA’s decision limiting the variance to 65-feet, he had adequate opportunity to litigate the matter beyond the ZHBA by appealing to the appropriate Court of Common Pleas within thirty days of the ZHBA’s decision. Rather than do that, DePolo filed this suit in the District Court,and allowed the thirty-day appeal period under state law to expire. This was fatal to his ability to obtain federal review of his claim. DePolo actually withdrew his request for a variance before the ZHBA and then failed to challenge its factual findings or legal conclusions in the forum provided under state law. He is therefore now bound by the final judgment of the ZHBA. Its ruling is a final judgment on the merits that is entitled to preclusive effect in federal court.”
In a footnote, Chief Judge McKee noted that the panel’s decision “leaves amateur radio enthusiasts with limited avenues into federal court.” He noted that DePolo could have file an appeal in state court and then moved to stay that appeal so that he could proceed in federal court. There was no discussion of whether DePolo could have invoked the FCC regulation and declaratory ruling in a state court appeal, though there seems no reason why he could not have done that. His failure to file a state court appeal, however, barred him from doing that in federal court. Chief Judge McKee therefore dismissed his appeal.