WASHINGTON _ The Supreme Court has spared municipalities from the threat of paying attorneys fees awards for improperly blocking construction of cellphone towers.
The unanimous ruling blocked Mark Abrams, a solo telecommunications entrepreneur, from using a broad federal civil rights statute to seek damages and attorneys fees from the City of Rancho Palos Verdes for denying Abrams a permit to construct a second cellphone tower on his property.
Instead, the court ruled in the March 22 decision, Abrams could sue only under the Telecommunications Act of 1996, a law generally aimed at reducing regulatory barriers to new communications technologies, including wireless services. That law allows private suits for improper denials of permits for wireless facilities, but sets a short, 30-day deadline for bringing such suits and does not authorize attorneys fees awards.
Writing for the court, Justice Antonin Scalia said the specific provisions of the 1996 act “precluded” suit under the broad federal civil rights, 42 U.S.C. § 1983. That act gives individuals a right to sue local governments for “deprivation” of any federal constitutional or statutory right and permits a court to award compensatory damages and attorneys fees.
Scalia said that enforcement of the telecommunications law through § 1983 “would distort the scheme of expedited judicial review and limited remedies” established by the Telecommunications Act. He also said that attorneys fees awards in suits brought by “large commercial interests” such as wireless companies could have “a particularly severe impact” on local governments.
A Washington lawyer who filed an amicus brief for the League of California Cities, the California State Association of Counties and others called the decision “a great relief.”
“Had the case come out the other way, it would have been very expensive for municipal governments every time they guessed wrong with respect to a cellphone tower,” attorney Roy Englert said. “And because it would have been so potentially expensive to deny a permit, it would have tilted the playing field toward granting the permit in cases where they shouldn't be granted.”
Abrams, who lives in a low-density residential neighborhood near the peak of the Rancho Palos Verdes peninsula, got into trouble with the city and his neighbors when he sought permission in 1998 to construct a second cellphone tower on his property. He had built a 52-foot-tall tower under a permit granted in 1989 and over the years added several smaller tripod antennas.
The city's zoning ordinance allowed noncommercial uses only, but Abrams was also providing two-way radio and signal enhancement services on a commercial basis. After discovery of the apparent violation, the city in July 1999 conducted a public hearing, where several neighbors voiced strong opposition. The city denied the permit.
A year later, Abrams filed suit in U.S. District Court in Los Angeles, citing both the 1996 communications law and the broader civil rights statute. Judge Stephen Wilson ruled the city had no basis for blocking the second tower. He called the decision “an act of spite by the community” and issued an injunction ordering the city to grant Abrams a construction permit.
Wilson held, however, that the communications law provided the “exclusive” remedy for violations and barred Abrams' request for damages or attorneys fees under the civil rights statute. On appeal, the Ninth Circuit disagreed and sent the case back to the trial court to calculate damages (see CP&DR Legal Digest, March 2004). Backed by an array of municipal government groups, Rancho Palos Verdes appealed to the Supreme Court.
In his opinion, Scalia noted that lower courts were divided on the issue of whether compensatory damages were available under the Telecommunications Act. He left the issue unresolved. Seven justices joined his opinion.
In a separate concurrence, Justice John Paul Stevens agreed that the remedies under the communications act were “fundamentally incompatible” with § 1983, but disagreed slightly with Scalia's method of reaching that decision. Englert called the differences in the two opinions “entirely academic.”
Rancho Palos Verdes City Attorney Carol Lynch said the decision was good news for all municipalities. Lynch, of Richards, Watson and Gershon in Los Angeles, said she read the decision as eliminating Abrams' opportunity for seeking damages under both the civil rights law and the telecommunications statute, which specifically reserved state land use authority.
“We think it [the ruling] is incredibly important because there are many applications being filed in cities and counties throughout the country by a variety of telecommunications providers, usually for cellphone towers,” Lynch said. Faced with the threat of having to pay damages, jurisdictions have simply approved some applications rather than deal with the merits, she said.
Press reports, however, have quoted Abrams as saying that he would pursue damages under the Telecommunications Act.
The Case:
City of Rancho Palos Verdes v. Abrams, No. 03-1601, 2005 DJDAR 3348. Filed March 22, 2005.
The attorneys:
For the city: Jeffrey A. Lamken, (202) 639-7700.
For Abrams: Seth P. Waxman, (202) 663-6000.
Contributing Editor Kenneth Jost, a former editor of the Los Angeles Daily Journal, is Supreme Court editor for CQ Press.
