Amicus Curiae Brief — Rancho Palos Verdes v. Abrams

RECEIVED yy 93.1601 | remceo

NOV 222008 tue me aps

E ChERK

Supreme Court of the Anited Spenenee

CITY OF RANCHO PALOS VERDES, et al.,

Petitioners,

V.

MARK J. ABRAMS,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE NATIONAL LEAGUE OF CITIES,

NATIONAL ASSOCIATION OF COUNTIES,

INTERNATIONAL CITY/COUNTY MANAGEMENT

ASSOCIATION, NATIONAL CONFERENCE OF

STATE LEGISLATURES, COUNCIL OF STATE

GOVERNMENTS, INTERNATIONAL MUNICIPAL

LAWYERS ASSOCIATION, AND U.S. CONFERENCE

OF MAYORS, JOINED BY THE NATIONAL

ASSOCIATION OF TELECOMMUNICATIONS

OFFICERS AND ADVISORS AND THE AMERICAN

PLANNING ASSOCIATION, AS AMICI CURIAE

SUPPORTING PETITIONERS

ROBERT A. LONG RICHARD RUDA*

HEIDI C. DOERHOFF Chief Counsel

COVINGTON & BURLING JAMES I. CROWLEY

1201 Pennsylvania Avenue, N.W. STATE AND LOCAL LEGAL

Washington, D.C. 20004 CENTER

(202) 662-6000 444 North Capitol Street, N.W.

Suite 309

Comes Washington, D.C. 20091

(202) 434-4850

* Counsel of Record for the

Amici Curiae

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D. C. 20001

QUESTION PRESENTED

Whether the limits on state and local zoning and land-use

authority established by 47 U.S.C. § 332(c\(7)(B) can be

enforced through an action for damages and attorney’s fees

under 42 U.S.C. §§ 1983 and 1988.

TABLE OF CONTENTS

QUESTION PRESENTED........ccssscccsssssecsssssecessssveesense

TABLE OF AU TIBOR TIES .....cccccccccsccsssccccscccsssccessooses

INTEREST OF THE AMICI CURIAE ..........ccccceeeeeseees

SUMMARY OF ARGUMENT..............cccssssssssseeseeeeees

IT erpretsansencetonscnnenincenssecsonénsnsseenstensesseaneonanense

I.

SECTION 332(c)(7)(B) PROVIDES FOR

JUDICIAL REVIEW OF WIRELESS FACIL-

ITY ZONING DECISIONS THAT IS

ANALOGOUS TO THE REVIEW TRADI-

TIONALLY AVAILABLE FOR STATE

AND LOCAL ZONING DECISIONS...............

A. Congress Patterned § 332(7)(B) After State

Review Mechanisi,.................c.c.ccccsccsssssscseee

1. Section 332 (c)(7)(B)(v) follows the

lead of most States and the Standard

State Zoning Enabling Act in re-

stricting the time for seeking judicial

TEVIEW tO 30 dayS.........ceseecerereenereeneneees

2. Section 332(c)(7)(B)(v)’s requirement

that State or local government action

be “final” as a condition of review

accords with typical state requirements

for zoning decision review ..............00

3. Section 332(c)(7)(B)(iil)’s require-

ment that decisions denying requests

be “in writing and supported by sub-

stantial evidence contained in a written

record” replicate zoning review stand-

ards used throughout the States .............

(iii)

10

iV

TABLE OF CONTENTS—Continued

B. Section 332(c)(7)(B)(v) Allows Private

Parties To Obtain Federal Remedies That

Are Consistent With Congressional Intent ..

l.

Declaratory and injunctive relief are

available in actions brought under

Bt, _____, SSIES vr enero

Damages and attorney’s fees are

not “appropriate relief’ under

§ 332(c)(7)(B)(v) and would contra-

vene Congress’ unambiguous intent not

to modify, impair, or supersede state

and local immunity laws........... SER

INTERPRETING THE 1996 ACT TO

ALLOW SUITS UNDER § 1983 WOULD

UPSET CONGRESS’ CAREFULLY

CHOSEN ENFORCEMENT SCHEME AND

RUN COUNTER TO SEA CLAMMERS

FR ORE OT cirscsenisisiticciinniiiiiiiantnatiuiiin

A. Section 1983 Actions Are Fundamentally

Inconsistent with the Mechanism for

Judicial Relief That Congress Chose To

I Ge HIE sccstnisenseimnintiniinisiiniasaiiasiahinties

Plaintiffs proceeding under § 1983

could circumvent the 30-day limita-

tions period governing actions under

§ 332(c)(7)(B)(v) and prevent expe-

Gited judicial TEVIEW ..........cccsccrcscssseseeses

Plaintiffs proceeding under § 1983

could subject local governments to

monetary judgments and attorney’s fee

Page

13

13

16

18

19

19

21

Vv

TABLE OF CONTENTS—Continued

Page

B. This Court’s Precedents Further Demon-

strate That § 1983 Remedies Should Not

Be Engrafted Onto The 1996 Act.............+. 23

I IG eicctiieiincesessenissnsnincesnccsssntseniensnienennmsinmen 27

vi

TABLE OF AUTHORITIES

Cases Page

Alyeska Pipeline Serv. Co. v. Wilderness Society,

Se a ccinsnsssdsssiniatebibiiasinileideiniinnadn 17

Barnes v. Gorman, 536 U.S. 181 (2002)..........00... 14,17

Blessing v. Freestone, 520 U.S. 329 (1997)...... 23, 24, 25

Cellular Telegraph Co. v. Town of Oyster Bay,

166 F.3d 490 (2d Cir. 1999) oo... eeccceceeeeeeeeees 19

City of Riverside v. Rivera, 477 U.S. 561 (1986).. 22

Deckert v. Independence Shares Corp., 311 U.S.

STITT niniisciechisteinsiinsnicelenaiaieiniinliestiadsibiinniiiaiias 13-14

Education Dev. Center, Inc. v. West Palm Beach

Zoning Bd.. of Apps., 541 So. 2d 106 (Fla.

SUT hicssdahhinicidinnnienuaddebaaiinapanaibatahaneapenedtdbinaiondinn 13

Franklin v. Gwinett County Pub. Schs., 503 U.S.

STII cssiiedauioseisdihaseisisiadeaiaiandinidiedandaitaninine 3, 13-14, 14

Gebser v. Lago Vista Indep. School Dist., 524

aan aD Tne ET 14,17

Golden State Transit Corp. v. City of Los

Angeles, 493 U.S. 103 (1989)... 23-24, 24-25

Jones v. R.R. Donnelly & Sons Co., 124 S.Ct.

SPITE cisnnscdibtedsdddddebatibaieatesipimncmmmonnniidaiete 20

Livadas v. Bradshaw, 512 U.S. 107 (1994)...0000.... 25

Middlesex County Sewerage Auth. v. National

Sea Clammers Ass'n, 453 U.S. 1 (1981)........... passim

Nevada Contractors v. Washoe Cty., 792 P.2d 31

ne Ee 1]

Nextel Partners, Inc. v. Kingston Township, 286

gt ee, ae 19-20

Pacifica Corp. v. City of Camarillo, 149 Cal.

SD, FES CE GA. FA, Fi i ctinecctecsncscctsicsnnninnnes 13

Smith v. Robinson, 468 U.S. 992 (1984) ........... 18, 25, 26

Torromeo v. Town of Fremont, 813 A.2d 389

a INET nistcssepshiedetenviniieaieinnieicdanbnibanideabdebaniiiandeaies 17

Turner v. Hammond, 310 A.2d 543 (Md. 1973)... 13

Vil

TABLE OF AUTHORITIES—Continued

Statutes

Page

Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498

Ie sncinsenssienintnennsannsecenconmpsenneeeniuesosnenntenttintoriens 24

Wright v. City of Roanoke Redev. and Hous.

Auth., 479 U.S. 418 (1987) .....cccccccseeeeeeeeeeeees 23, 24, 25

Younger v. City of Portland, 752 P.2d 262 (Or.

PIII sxconceccscecsecapassnensoenennsesnnptenssinonsensientneansinns 13

Ride, Gad 6 UDF ePID cccesoreccvesscescevrsvcscossontansesvnese 17

Alaska Stat. § 29.40.060(b) .........:ccccceeseeeeseeeeeees 11

Coal, Gav. Cabo 6 BIG A nccccceseconsssescsscocerscccccssccoseses 17

Cal. Gov. Code § 65009(c)(1)(E) ..........cceeeesenneeees 15

Del. Code Ann. Tit. 10, § 4011(a)(2) ............. eee 17

Del. Code Ann. Tit. 22, § 328(€) .............sseseeeeeeeees 10

Fla. Stat. Ann. § 120.68(2)(€)..........:ccssessesseeeeeeees 10

Haw. Rev. Stat. § 91-14(€) ............ccssccsssseresssereeees 10

55 Ill. Comp. Stat. Ann. § 5/5-12012 ........ccceeeees 10

Idaho Code § 6-904 B(3) ..........cc:cccseeeeeeesseeeereeeeeees 17

Ky. Rev. Stat. § 100.347(1).......cccsccecseereeeeneenenes 10

Mich. Comp. Laws § 125.293a(3)........:ccesseeseeeesees 15

N.C. Gen. Stat. § 160A-381.............ccsssssrrsccsssscoees 10

N.H. Rev. Stat. Ann. § 677:4............cccsseeeeseeeeeeeeees 10

DEG, Beat, Amite, © Fab D cccccccccecccsccccscsevssnnscssscsceses 10

N.M. Stat. Ann. § 39-3-1.1(°D)(2)........ccccceseseeeeeees 11

IY. Frere Leet © 26 FG cccecscccccccsscccsccccccccesesesseneees 10

N.Y. Towni Law § 267-C(4) .......ccscccsesseeessesseeeennees 15

Or. Rev. Stat. § 30.265(3)(C) ........:ccssssssssessrreeeeeees 17

_Or. Rev. Stat. § 197.850(9).........cccssscessssreeeeeseeeees 15

Pa. Stat. Ann. Tit. 53, § 11002-A .0..... cc eeeeeeeeeeees 10

Pa. Stat. Ann. Tit. 53, § 11006-A(a)...........ceceeeeees 15

Pub. L. No. 104-104, § 601, 110 Stat. 143............ 27

R.I. Gen. Laws § 45-24-69(d)........cccccssccseseeereeeees 15

S.C. Code Ann. § 15-78-60(1).........cccccceeeereeeeeeeees 17

Vill

TABLE OF AUTHORITIES—Continued

Page

S.C. Code Ann. § 15-78-60(2)..........c:ccccsscceeesseeeees 17

Tenn. Code Ann. § 27-9-101 ......cccccceccsceceeeeseeeeeees 10

Tenn. Code Ann. § 29-20-20] o0........cccceeceeeeeeeeeees 17

Tex. Local Gov’t Code § 211.01 1(f)........... cee 15

20 U.S.C. §§ 1400 ef Seq. .......cccccccesescsessseseessseeeees 26

Pn Si ITI sciciesicnsicnrneenninnbeunioannnneimelonitiasneaiinbne 4, 20

Se Ht SNEED xtnrenicstncipadenirnamabtioniabumeniemenets passim

Fe ie OF I tntecttetesesecencansnesseii Drscncnneninadonsbniiig passim

a se I citnisininisicsiihiniindianneceianabiibaniint 3,17

OO Gs te ila siciicinciniicasdtsiiadeniienintebiadibiaen 7

BF Seis OF Se ccisrscccsncscnnesennevninteesonensies 5,7

47 U.S.C. § 332(c)(7)(B)(i)(T) ......cececceseceeesseeeseeeees 5

47 U.S.C. § 332(c)(7)(B)()ID 0.0... cccceccceeeeceseeeeeees 5

47 U.S.C. § 332(c)(7)(B)(ii) «0.2.0 ccccccecceeseceeseeeeeeeeees 5

47 U.S.C. § 332(c)(7)(B)(Hii) «00.0... ceececceeeeeeeeeeeeeeees 3, 5,11

47 U.S.C. § 332(CK 7) B)iv) .........ssccccccssccsscscesscees 5

ST UBL, © FSIS TYP ovvcsecescccvcsccsvscosccsccesoess passim

Utah Code Ann. § 10-9-708(6)...........:ccccccceseceseeees 1]

Wash. Rev. Code § 36.70€.140...........cccccceeeeeeees 15

Other Authorities

American Law_lInstitute, A Model Land Devel-

CE GE COO siictescccctcnecissnesenseccivincsosniens passim

W. Blackstone, Commentaries (1783)...........:000 14

Josh Cohen, Supreme Court to Hear City’s

Antenna Case, Palos Verdes Peninsula News,

(Oct. 1, 2004) (available at http://pvnews.

nminews.com/articles/2004/10/01/local_news/

I satiate iiiiicenchectitainiaiatdicitimtaaeiial ilies 22

Nick Green, High Court to Rule on RVP Tower

Issue, The Daily Breeze (Sept. 29, 2004).......... 22

H.R. Conf. Rep. No. 458, 104th Cong., 2d Sess.

PCIE citinsasiciiciiciiibesietihiehiatidenniettniaiiaiadee-iiceiataalaa passim

ix

TABLE OF AUTHORITIES—Continued

Page

Michael Kao, Calculating Lawyers Fees: Theory

and Reality, 51 UCLA L. Rev. 825 (2004) ....... 22

Stuart Meck, Model Planning and Zoning

Enabling Legislation: A Short History, in

American Planning Association, Modernizing

State Planning Statutes (1996) ........:cccssseeeeeeeees

The Municipal Year Book (2004) ........:cccsseeeeeeeees 21

Patrick J. Rohan, Zoning and Land Use Controls

U.S. Dep’t of Commerce, A Standard State

Zoning Enabling Act Under Which Municipali-

ties May Adopt Zoning Regulations (1926)....... 9,14

U.S. Dep’t of Labor, Bureau of Labor Statistics,

Occupational Outlook Handbook (2004) .......... 24

Kenneth H. Young, Anderson's American Law of

Zoning (4th ed. 1997 & 2004 Supp.)....... 10, 11, 12, 16

INTEREST OF THE AMICI CURIAE

Amici National League of Cities, National Association of

Counties, International City/County Management Associa-

tion, National Conference of State Legislatures, Council of

State Governments, International Municipal Lawyers As-

sociation, and U.S. Conference of Mayors are organi-

zations whose members include state, county, and municipa!

governments and officials throughout the United States.’

Amicus National Association of Telecommunications Offi-

cers and Advisors (NATOA) has represented the telecommu-

nications needs and interests of local governments for over

20 years. NATOA advises individuals and organizations

responsible for telecommunications policies and services in

local governments throughout the country.

Amicus American Planning Association (APA) is a non-

profit public interest and research organization founded in

1978 to advance the art and science of planning at the iocal,

regional, state, and national levels. With more than 34,000

members nationwide, APA has a longstanding policy interest

and involvement in the federal legislative debate concerning

the Telecommunications Act to ensure that communities re-

main empowered to make appropriate, necessary, and citizen-

driven decisions about telecommunications infrastructure.

All of the amici have a compelling interest in the issue

presented in this case: whether Congress intended that the

remedy provided in 47 U.S.C. § 332(c)(7)(B)(v) for chal-

lenging wireless facility zoning or permitting decisions that

allegedly violate § 332 be exclusive or whether such chal-

lenges can be brought under 42 U.S.C. § 1983..While Con-

' The parties have consented to the filing of amicus curiae briefs in this

case and have filed blanket consent letters with the Clerk of ihe Court.

This brief was not authored in whole or in part by counsel for a party, and

no person or entity other than amici or their members has made a

monetary contribution to the preparation or submission of this brief.

2

gress imposed certain federal standards on wireless facility

zoning and permitting decisions, it did so in a manner that is

highly deferential to state and local government review

processes. For example, while-Congress created a right of

judicial review, it imposed the same 30-day limitations period

that exists in most States. Moreover, Congress adopted the

same standard of judicial review that is used by state courts

reviewing local land use decisions. Section 1983 suits are

fundamentally incompatible with the remedial scheme

Congress created in § 332(c)(7)(B).

The court of appeals’ holding that § 1983 suits none-

theless are available to challenge local wireless facility

zoning and permitting decisions undermines the scheme

Congress created in § 332(c)(7)(B) and will disrupt the state

and local zoning review process. Amici accordingly submit

this brief to assist the Court in its resolution of the case.

SUMMARY OF ARGUMENT

1. Section 332(c)(7), entitled “Preservation of local zoning

authority,” is designed to facilitate the rollout of wireless

service in a way that is respectful of existing state and local

zoning processes. Congress achieved this balance by adopt-

ing traditional state-law principles and limitations governing

judicial review of zoning determinations. For example,

Congress provided that a person seeking judicial review of

any final action or failure to act by a state or local gov-

ernment must commence an action “within 30 days.” 47

U.S.C. § 332(c)(7)(B)(v). This 30-day limitation is derived

from the Standard State Zoning Enabling Act of 1926, which

was adopted by all 50 States and remains in effect in

modified form in 47 States. Most States impose a relatively

short time limit on persons seeking judicial review of zoning

decisions, and 30 days is the most common state-imposed

limit. Congress determined that the same 30-day require-

3

ment should apply when a challenge to a local zoning or

permitting decision is based on the federal standards of

§ 332(C)(7)(B).

The provision of § 332(c)(7)(B)(v) that judicial review is

available for “final” actions of state or local governments

parallels similar “final agency action” requirements for judi-

cial review of zoning decisions under state law. Likewise, the

requirement that zoning decisions be “in writing and

supported by substantial evidence contained in a written

record,” 47 U.S.C. § 332(c)(7)(B)(iii), also follows typical

state-law requirements governing judicial review of zoning

decisions. ia

The Court has recognized that when « federal statute does

not expressly authorize particular remedies, it is presumed

that court are authorized to award any appropriate relief.

Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 73

(1992). Congress’ decision to adopt the existing framework

for state judicial review of zoning decisions strongly indicates

that the appropriate remedies for violations of the standards

of § 332(c)(7)(B) are those generally available when a court

reviews a zoning decision under state law. Consistent with

traditional appellate review of agency action, those remedies

may include injunctive or declaratory relief setting aside or

modifying the administrative decision, but not damages or

attorney’s fees. Indeed, most States grant local governments

and municipalities immunity from damages liability for zon-

ing decisions. Those grants of immunity should be respected

under the 1996 Act’s saving clause, which provides that the

Act “shall not be construed to modify, impair, or supersede

Federal, State, or local law unless expressly so provided... .”

47 U.S.C. § 152 (note).

2. Allowing suits under 42 U.S.C. § 1983 would upset the

careful balance struck by Congress in the 1996 Act. If

§ 1983 actions are available to redress violations of the

federal standards of § 332(c)(7)(B), then the 30-day limi-

4

tations period is ineffective, because plaintiffs would have up

to four years to commence an action under § 1983. See 28

U.S.C. § 1658. In addition, if § 1983 actions are available

private parties may obtain damages and attorney’s fees

awards under 42 U.S.C. § 1988, neither of which are avail-

able under § 332(c)(7)(B)(v). There is persuasive evidence

that Congress did not intend to saddle local and state gov-

ernments with this liability.

The practical consequences of allowing § 1983 actions

could be significant. There are thousands of counties, munic-

ipalities, and townships in the United States, including many

with few inhabitants, limited financial resources, and no full-

time counsel. Faced with the threat of large claims for

attorney’s fees and damages by well-financed corporations

represented by high-priced counsel, local governments may

be deterred from vigorously protecting visual, aesthetic, and

safety concerns. Such a result would defeat Congress’ inten-

tion to allow local governments to retain “the flexibility to

treat facilities that create different visual, aesthetic, or safety

concerns differently to the extent permitted under generally

applicable zoning requirements.” H.R. Conf. Rep. No. 458,

104th Cong., 2d Sess. 208 (1996).

This Court’s decisions point towards reversal of the court

of appeals’ decision in this case. Where this Court has held

that § 1983 actions are available, the federal statute that

creates the federal rights at issue has not expressly provided

individuals with a private right of action to vindicate those

rights. In contrast, where Congress has expressly provided

for a private right of action in the statute that creates the

federal rights at issue, this Court has held that actions under

§ 1983 are foreclosed. In enacting § 332(c)(7), Congress

created an express private right of action that parallels the

judicial review of zoning and permitting decisions that is

traditionally available under state law. In these circum-

stances, allowing resort to § 1983 would contravene the intent

of Congress.

5

ARGUMENT

In the Telecommunications Act of 1996, Congress imposed

federal standards on local zoning authorities’ “decisions

regarding the placement, construction, and modification

of personal wireless service facilities.” 47 U.S.C.

§ 332(c)(7)(A). | Substantively, Congress prohibited local

zoning authorities (1) from “unreasonably discriminat[ing]

among providers of functionally equivalents services” (id.

§ 332(c)(7)(B)(i)(1)); (2) from “prohibit[ing] . . . the provision

of personal wireless services” (id. § 332(c)(7)(B)(i)(I])); and

(3) from regulating the placement, construction, and

modification of personal wireless service facilities based on

“the environmental effects of radio frequency emissions to

the extent that such facilities comply with the [FCC’s]

regulations” (id. § 332(c)(7)(B)(iv)). Procedurally, Congress

required zoning authorities (1) to “act on any request for

authorization to place, construct, or modify personal wireless

service facilities within a reasonable period of time, .. .

taking into account the nature and scope of the request” (id.

§ 332(c)(7)(B)(ii)) and (2) to ensure that decisions “deny[ing]

a request . . . be in writing and supported by substan-

tial evidence contained in a _ written record” (id.

§ 332(c)(7)(B)(iii)).

The 1996 Act expressly provides private parties with “a

mechanism for judicial relief from zoning decisions that fail

to comply with” these requirements. H.R. Conf. Rep. No.

458, 104th Cong., 2d Sess. 20% (1996). Specifically, 47

U.S.C. § 332(c)(7)(B)(v) allows “[a]ny person adversely

affected by any final action or failure to act by a State or local

government . . . that is inconsistent with [the federal standards

listed above], within 30 days after such action or failure to

act, [to] commence an action in any court of competent

jurisdiction.” Congress viewed such actions as “appeal[s]” of

“final” zoning and permitting decisions (H.R. Conf. Rep. No.

6

458, supra, at 209), and-+required courts to “hear and decide

[them] on an expedited basis” (47 U.S.C. § 332(c)(7)(B)(v)).”

Despite Congress’ decision to provide a specific avenue for

private parties to seek judicial enforcement of these federal

standards via § 332(c)(7)(B)(v), the court of appeals held that

private parties can enforce the same federal standards under

42 U.S.C. § 1983 as well. The court ruled that § 1983 actions

are cognizable (and § 1983 remedies are available) because

§ 332(c)(7)(B)(v)—the very “mechanism for judicial relief”

(H.R. Conf. Rep. No. 458, supra, at 208) that Congress chose

to include in the 1996 Act—‘“does not explicitly provide for

any types of remedies such as damages, injunctions, attor-

ney’s fees, or costs[,]” and “grants no remedies beyond pro-

cedural rights.” Pet. App. at Sa, 6a. The court further

reasoned that § 332(c)(7)(B)(v)’s 30-day limitations period

“imposes a burden on an aggrieved plaintiff, not a benefit”

and that “[t]he only benefit to an aggrieved plaintiff is

expedited judicial review,” which “does nothing to remedy a

TCA violation in itself.” /d. at 8a-9a.

In so holding, the court of appeals misconstrued the scope

and effect of § 332(c)(7)(B)(v), as well as Congress’ intent in

the 1996 Act to minimize disruption to state and local zoning

decisions. As amici will show, the judgment below should be

reversed for two reasons. First, examination of the text,

structure, and legislative history of the Act confirms that

Congress designed § 332(c)(7)(B)(v) to provide for judicial

review of wireless facility zoning and permitting decisions

that parallels, in terms of timing, scope, and remedies, the

review that is available in nearly every State for zoning and

permitting decisions. Contrary to the views of the court of

* The Act further allows persons who claim a local zoning authority’s

decision was impermissibly based on radio frequency emissions the

option of petitioning the Federal Communications Commission or a court

for relief. 47 U.S.C. § 332(cK 7K BX vy).

7

appeals, § 332(c)(7)(B)(v) authorizes courts to order appro-

priate remedies, such as declaratory and injunctive relief,

upon a determination that a local zoning authority’s decision

fell afoul of the 1996 Act’s requirements. Second, allowing

private parties to sue under § 1983, and thereby circumvent

the prescribed limits on § 332(c)(7)(B)(v) actions, upsets

Congress’ carefully designed scheme; could have significant,

negative consequences for local governments that Congress

sought to avoid; and is contrary to this Court’s precedents on

the availability of § 1983 remedies.

I. SECTION 332(C)(7)(B)(V) PROVIDES FOR

JUDICIAL REVIEW OF WIRELESS FACILITY

ZONING DECISIONS THAT IS ANALOGOUS

TO THE REVIEW TRADITIONALLY AVAIL-

ABLE FOR STATE AND LOCAL ZONING

DECISIONS.

With § 332(c)(7)(B), Congress sought to facilitate the

rollout of wireless service in a manner that is respectful of

existing state and local zoning processes. Section 332(c)(7) is

entitled “Preservation of local zoning authority.” See also

H.R. Conf. Rep. No. 458, supra, at 208 (Congress did not

intend “to give preferential treatment to the personal wireless

service industry in the processing of requests, or to subject

their requests to any but the generally applicable time

frames for zoning decisions.”). Other than the non-

discrimination and procedural requirements that are set forth

in § 332(c)(7)(B) and described above, Congress disavowed

any intent to “limit or affect the authority of a State or local

government or instrumentality thereof over decisions regard-

ing the placement, construction, and modification of personal

wireless service facilities.” 47 U.S.C. § 332(c)(7)(A); H.R.

Conf. Rep. No. 458, supra, at 207-08 (1996 Act “preserves

the authority of State and local governments over zoning and

8

land use matters except in the limited circumstances set forth”

in § 332).°

A. Congress Patterned § 332(7)(B)(v) After State

Review Mechanisms.

The judicial review provision of § 332(c)(7)(B)(v) reflects

Congress’ deferential stance toward state and local zoning

processes. Strikingly, both it and § 332(c)(7)(B)(iii)’s re-

quirement that zoning decisions be “in writing and sup-

ported by substantial evidence contained in a written record”

parallel requirements contained in state enabling acts that

create, and define the scope of, private parties’ rights to

obtain judicial review of zoning determinations in state court.

1. Section 332(c)(7)(B)(v) follows the lead of

most States and the Standard State Zoning

Enabling Act in restricting the time for

seeking judicial review to 30 days.

The court of appeals characterized § 332(c)(7)(B)(v) as

establishing a “short” statute of limitations for review of local

zoning authority decisions. Pet. App. 5a. But Congress did

not select the 30-day limitations period from thin air. Thirty-

day limits have a venerable provenance in early zoning

law and continue to be widely used in state zoning law re-

view schemes.

“Statutes and ordinances prescribing the time limitations to

initiate judicial review are often patterned after the Standard

State Zoning Enabling Act,” which was adopted in final form

* A House amendment to the bill would have required the FCC to issue

specified siting regulations and to create a “negotiated rulemaking

committee comprised of State and local governments, public safety

agencies and the affected industries . . . to have attempted to develop a

uniform policy to propose to the Commission for the siting of wireless

tower sites.” H.R. Conf. Rep. No. 458, supra, at 207. This amendment

was rejected by the conferees in favor § 332’s more deferential approach

to existing land use processes. /d.

9

in 1926 and published by the U.S. Department of Commerce.

8 Patrick J. Rohan, Zoning and Land Use Controls § 52.04[2]

(2004) (footnote omitted).* Section 7 of the Zoning Enabling

Act authorized the appointment of boards of adjustment to

decide such matters as appeals from administrative orders and

requests for special exceptions and variances. See U.S. Dep’t

of Commerce, A Standard State Zoning Enabling Act, supra,

at 9-11. Section 7 provided that “[a]ny person . . . aggrieved

by any decision of the board of adjustment . . . may present to

a court of record a petition . . . setting forth that such decision

is illegal . . . . Such petition shall be presented to the court

within 30 days after the filing of the decision in the office of

the board.” Id. at 11 (emphasis added).

The Zoning Enabling Act was subsequently “adopted by all

50 states and is still in effect, in modified form, in 47 states.”

Stuart Meck, Model Planning and Zoning Enabling Legis-

lation: A Short History 3, in 1 American Planning Asso-

ciation, Modernizing State Planning Statutes 3 (1996). When

the American Law Institute published its Model Land Devel-

opment Code, it

“suggest[ed] 4 weeks as a reasonable time in which to

commence legal proceedings to challenge the validity of

orders issued by a Land Development Agency. Most

states that currently provide for statutory judicial review

* The Act was the product of a committee of leading lawyers, en-

gineers, and housing and planning experts, which was appointed by then

Secretary of Commerce Herbert Hoover. See U.S. Dep’t of Commerce, A

Standard State Zoning Enabling Act Under Which Municipalities May

Adopt Zoning Regulations (1926). The Act’s principal drafter was

Edward M. Bassett, an attorney who was instrumental in the creation of

New York City’s “pioneering zoning code in 1916.” Stuart Meck, Model

Planning and Zoning Enabling Legislation: A Short History 1, in

1 American Planning Association, Modernizing State Planning Statutes

1 (1996).

10

of local administrative zoning decisions prescribe a 30

day time period for such actions to be initiated.”

Model Land Dev. Code § 9-107, at 423 (Reporters Note)

(1975). See also id. § 9-107(1), at 422 (“The validity of an

order of a Land Development Agency granting or denying

development permission or an enforcement order shall not be

questioned in any legal proceeding commenced more than [4

weeks] after notice of the order was given. .. .”). Even today,

while “[t]he time restrictions range from 10 to 60 days, most

require[e] that proceedings be commenced within 30 days of

the decision in issue.” 4 Kenneth H. Young, Anderson's

American Law of Zoning § 27.24, at 572 (4"" ed. 1997 & 2004

Supp.). See, e.g., Del. Code Ann. Tit. 22, § 328(a) (30 days);

Fla. Stat. Ann. § 120.68(2)(a) (same); N.Y. Town Law § 267-

c (same); N.C. Gen. Stat. § 160A-381 (same); Pa. Stat. Ann.

Tit. 53, § 11002-A (same).

2. Section 332(c)(7)(B)(v)’s requirement that

State or local government action be “final”

as a condition of review accords with

typical state requirements for zoning decision

review.

Similarly, Congress’ decision to restrict judicial review to

“final” state or local government decisions emulates state

judicial review provisions. Nearly every state review scheme

is identical, in that virtually all allow parties “aggrieved” or

“affected” by a “final” state administrative zoning or per-

mitting decision to challenge the decision in court. See, e.g.,

Haw. Rev. Stat. § 91-14(a); 55 Ill. Comp. Stat. Ann. § 5/5-

12012; Ky. Rev. Stat. § 100.347(1); N.H. Rev. Stat. Ann.

§ 677:4; N.M. Stat. Ann. § 3-21-9; Tenn. Code Ann. § 27-9-

101. That Congress chose to follow the state-law model for

challenges to wireless facilities zoning decisions demon-

strates its intent to preserve the integrity of local zoning and

permitting processes, while ensuring that private parties have

an effective method of securing compliance with federal

11

standards through judicial actions under § 332(c)(7)(B)(v).

The particular balance Congress struck in this regard was

carefully considered. See H.R. Conf. Rep. No. 458, supra, at

208 (rejecting alternative that aggrieved parties must exhaust

any “independent State court remed{ies],” in addition to

obtaining “final administrative action at the State or local

government level” before commencing an action under

§ 332(c)(7)(B)(v)) (emphasis added).

3. Section 332(c)(7)(B)(iii)’s requirement that

decisions denying requests be “in writing and

supported by substantial evidence contained

in a written record” replicate zoning review

standards used throughout the States.

Congress’ decision to require that zoning decisions be “in

writing and supported by substantial evidence contained in a

written record” (47 U.S.C. § 332(c)(7)(B)(iii)) also follows

typical state review mechanisms. Most States apply the same

standard. See, e.g., Alaska Stat. § 29.40.060(b); N.M. Stat.

Ann. § 39-3-1.1(D)(2); Utah Code Ann. § 10-9-708(6); see

also Nevada Contractors v. Washoe Cty., 792 P.2d 31, 33

(Nev. 1990) (substantial evidence test).

The Conference Report for the 1996 Act confirms that

Congress intended the “phrase ‘substantial evidence con-

‘ tained in a written record’” to be construed as “the traditional

standard used for judicial review of agency actions.” H.R.

Conf. Rep. No. 458, supra, at 208. See also id. at 209

(describing § 332(c)(7)(B)(v) action as an “appeal” of state or

local administrative decision). As contemplated by Congress,

the scope of judicial review under § 332(c)(7)(B)(v) parallels

certiorari review of administrative zoning boards in state

courts. See Anderson’s American Law Of Zoning, supra,

§ 27.07, at 507 (The “writ is traditionally confined to the

review by a judicial tribunal of a decision of an inferior

tribunal, on the record made by the latter.”). As another

authority explains, “[a] challenge to a quasi-judicial deter-

12

mination brought by way of certiorari or appeal is similar to

the appeal of a judicial decision to a higher court. The

appellate court will, of course, correct any errors of law by

the lower tribunal.” Rohan, Zoning & Land Use Controls,

supra, § 52.05[3].

Moreover, the appellate court will overturn a board’s

decision where it “has failed to follow procedures required by

State statutes or its own prescribed procedures.” /d. (footnote

omitted). A reviewing court, however, “will not weigh the

evidence but will examine the record to determine whether

there is any legal or competent evidence in the record to

support the decision.” Anderson's American Law Of Zoning,

supra, § 27.30, at 614 (footnotes omitted). As a leading

authority explains:

In the instance that the board’s decision is supported by

‘substantial evidence’ the board will be generally up-

held. .... [A]s a rule the courts limit their inquiry of the

administrative record to ascertain that the zoning board

decision was neither irrational nor clearly erroneous. It

is in fact error for the trial court to amplify its review

beyond such findings.

Rohan, Zoning & Land Use Controls, supra, § 52.05{2]

(footnotes omitted). See also Anderson’s American Law Of

Zoning, supra, § 27.30, at 610-11 & n.45 (“While a court

reviewing a decision of a board of adjustment may not

substitute its judgment for that of the board, it will examine

the record upon which the board’s decision is based to

determine whether the findings of the board are supported by

substantial evidence.”) (footnotes omitted); Model Land De-

velopment Code, § 9-110(1) & (f), at 422 (A “court may

declare the order . . . invalid . . . if it determines that . . . the

order is not based on findings of fact which are supported by

substantial evidence.”).

Likewise, the commentary to the Model Land Develop-

ment Code explains, “[i]f findings of fact were made by a

13

prior administrative agency, the courts are not free to dis-

regard the weight given the evidence by the agency.” Jd. at

433. Accord Pacifica Corp v. City of Camarillo, 149 Cal.

App.3d 168, 178 (Ct. App. 1983); Education Dev. Center,

Inc. v. West Palm Beach Zoning Bd. of Apps., 541 So.2d 106,

108 (Fla. 1989); Turner v. Hammond, 310 A.2d 543, 553

(Md. 1973); Younger v. City of Portland, 752 P.2d 262, 263

(Or. 1988).

B. Section 332(c)(7)(B)(v) Allows Private Parties

To Obtain Federal Remedies That Are Con-

sistent With Congressional Intent.

As the foregoing discussion demonstrates, Congress

provided for judicial review in § 332(c)(7)(B)(v) that mirrors

the review process for zoning decisions that is widely used

throughout the States. The court of appeals acknowledged

that § 332(c)(7)(B)(v) “provides for a private right of action

by allowing aggrieved plaintiffs the right to bring an action in

any court of competent jurisdiction.” Pet. App. 6a. But the

court nonetheless concluded that § 332(c)(7)(B)(v) “does not

provide for any type of relief.” /d. at 7a. In its view, “[t]he

only benefit to an aggrieved plaintiff [in § 332(c)(7)(B)(v)] is

expedited judicial review,” which “does nothing to remedy a

TCA violation in itself.” Jd. at 8a-9a. The lower court’s

interpretation of § 332(c)(7)(B)(v) is contrary to all indicia of

congressional intent and common sense.

1. Declaratory and _ injunctive relief are

available in actions brought under

§ 332(c)(7)(B)(v).

Contrary to the view of the court of appeals, it is of no

consequence that § 332(c)(7)(B)(v) does not itemize the

remedies available to private parties for a violation of federal

standards. As this Court has long recognized, “[t]hat a statute

does not authorize the remedy at issue ‘in so many words is

no more significant than the fact that it does not in terms

14

authorize execution to issue on a judgment.’” Franklin v.

Gwinett County Pub. Schs., 503 U.S. 60, 68 (1992) (quoting

Deckert v. Independence Shares Corp., 311 U.S. 282, 288

(1940)). Rather, there is a “traditional presumpiion in favor

of any appropriate relief for violation of a federal right.”

Franklin, 503 U.S. at 73 (emphasis added). See also 3 W.

Blackstone, Commentaries 23 (1783) (quoted in Franklin,

503 U.S. at 66) (It is “‘a general and indisputable rule, that

where there is a legal right, there is also a legal remedy, by

suit or action at law, whenever that right is invaded.’”)).

999

“[A]ppropriate relief,” within the meaning of Franklin,

includes “forms of relief traditionally available in [analogous]

suits.” Barnes v. Gorman, 536 U.S. 181, 187 (2002).

Congressional intent remains the touchstone for determining

what relief is “appropriate.” See Gebser v. Lago Vista Indep.

School Dist., 524 U.S. 274, 285 (1998) (general rule that all

“appropriate relief” is available “must be reconciled with

congressional purpose” of the statute); id. at 284 (consid-

eration of “the statutory structure and purpose” is “pertinent .

. . to [determination of] the scope of the available remedies”).

Errors in state zoning decisions are typically remedied by

relief setting aside or modifying the order of the lower

tribunal. The Model Land Development Code states:

“(T]he Court may, in a proceeding involving an order,

affirm the decisions of the agency, set-aside the order,

remand the matter for further proceedings before the

agency in accordance with directions contained in the

opinion or order of the Court, or enter an order that

might have been entered by the agency issuing the order

and that the court could order the agency to issue.”

Model Land Dev. Code, supra, § 9-111(2), at 434. See

Standard State Zoning Enabling Act, supra, § 7, at 12 (“The

court may reverse or affirm, wholly or partly, or may modify

the decision brought up for review.”); Rohan, Zoning & Land

U'se Controls, supra, § 52.05[3] (“A court will overturn a

15

zoning determination which is beyond the ambit of the

board’s legislatively prescribed powers . . ., or where the

lower tribunal has failed to follow procedures required by

state statutes or its own prescribed procedures.”) (footnotes

omitted).

Nearly every state zoning review scheme provides for the

same specific remedies.” Given Congress’ decision to pattern

§ 332(c)(7)(B)(v) after these state models, § 332(c)(7)(B)(v)

clearly embraces these traditional remedies.

Indeed, the district court had little problem fashioning a

comprehensive remedy for the violation of federal right

which it found to have occurred in this case. Respondent

obtained complete relief when the district court enjoined the

city council “to set aside its earlier resolution denying

[respondent’s] application” and ordered it “to adopt a new

* See, e.g., Cal. Gov. Code § 65009(c)(1(E) (authorizing suit “[t]o

attack, review, set aside, void, or annul any decision” on applications for

conditional use permits and variances made by a zoning board of

adjustment or zoning board of appeals, “or to determine the reason-

ableness, legality, or validity of any condition attached to a variance,

conditional use permit, or any other permit”); Mich. Comp. Laws

§ 125.293a(3) (“the court may affirm, reverse, or modify the decision of

the board of appeals”); N.Y. Town Law § 267-c(4) (“The court may

reverse or affirm, wholly or partly, or may modify the decision brought up

for review determining all questions which may be presented for

determination.”); Or. Rev. Stat. § 197.850(9) (“The court may affirm,

reverse or remand the order.”); Pa. Stat. Ann. Tit. 53, § 11006-A(a) (“In a

land use appeal, the court shall have power to declare any ordinance or

map invalid and set aside or modify any action, decision or order of the

governing body, agency or officer of the municipality brought up on

appeal.”); R.I. Gen. Laws § 45-24-69(d) (“The court may affirm the

decision of the zoning board of review or remand the case for further

proceedings, or may reverse or modify the decision. . . .”); Tex. Local

Gov’t Code § 211.011(f) (“The ccurt may reverse or affirm, in whole or in

part, or modify the decision that is appealed.”); Wash. Rev. Code

§ 36.70C.140 (“The court may affirm or reverse the land use decision

under review or remand it for modification or further proceedings.”).

16

resolution granting ... a Conditional Use Permit” subject

to “reasonable conditions.” Pet. App. 14a. A federal court

order that sets aside a local government’s zoning deter-

mination on the ground that it violates federal law and further

commands local officials to grant a conditional use permit

subject to certain conditions is not merely “procedural.” /d.

at 9a (Ct. App. Op). Quite the opposite, the district court’s

order “remed[ies] a TCA violation in itself.” Jd. at 8a-9a

2. Damages and attorney’s fees are not

“appropriate relief” under § 332(c)(7)(B)(v)

and would contravene Congress’ unam-

biguous intent not to modify, impair, or

supersede state and local immunity laws.

Violations of § 332(c)(7)(B) occur as a result of the

exercise of a quasi-judicial function. See Rohan, Zoning &

Land Use Controls, supra, at § 52.01 (noting “the adjudi-

catory power to enforce [zoning] ordinances and to grant or

deny, on an individual basis, permits, exceptions, non-

conforming uses and variances under the ordinances”). As

explained above, see supra pp. 11-12, “[a]ppeal and certiorari

are the usual avenues of review open to a party aggrieved by

the quasi-judicial decision of zoning boards.” Rohan, Zoning

& Land Use Contols, supra, § 52.05[1]. See also Anderson's

American Law Of Zoning, supra, § 27.07, at 507 (“the writ of

certiorari is probably the most common device for reviewing

the decisions of administrative boards”); id. at 27.06, at 504

(“The courts are in apparent agreement that a decision of a

legislative body is subject to review by certiorari or appeal

where such decision is an administrative or quasi-judicial

one.”). Moreover, “[a] challenge to a quasi-judicial board

determination brought by way of certiorari or appeal is

similar to the appeal of a judicial decision to a higher court.”

Rohan, Zoning & Land Use Controls, supra, at § 52.05[3].

Just as a trial court’s ruling that violates a party’s rights

does not give rise to damages when it is overturned on appeal,

17

damages are traditionally unavailable where a board of

adjustment or city council has incorrectly denied a permit,

special use exception or request for a variance. See, e.g.,

Torromeo v. Town of Fremont, 813 A.2d 389, 392 (N.H.

2002). (“[Q]uasi-judicial . . . acts of a town ordinarily do not

subject it to claims for damages. ... [P]laintiffs are not

entitled to damages, and . . . iheir only remedy is issuance of

the erroneously-denied building permits.”) (internal quotation

and citation omitted). Consistent with the “American Rule,”

see Alyeska Pipeline Service Co. v. Wilderness Society, 421

U.S. 240, 247 (1975), attorney’s fees generally are not recov-

erable either. Consequently, neither damages nor attorney’s

fees would constitute “appropriate relief” in actions brought

under § 332(c)(7)(B)(v). See Barnes, 536 U.S. at 187;

Gebser, 524 U.S. at 285.

Interpreting § 332(c)(7)(B)(v) not to allow damages and

attorney’s fee recoveries is also required by Section 601(c)(1)

of the 1996 Act. See 47 U.S.C. § 152 (reprinting Section

601(c)(1) in histerical and statutory notes). In that provision,

Congress admonished that the 1996 Act “shall not be

construed to modify, impair, or supersede Federal, State, or

local law unless expressly so provided. . . .” Most States by

statute grant local governments immunity from damages

liability for zoning decisions.° If damages and fee-shifting

were deemed available under § 332(c)(7)(B)(v), those “State

[and] local law{s]” would, contrary to Section 601(c)(1), be

“impair[ed] or supersed[ed]” by the 1996 Act in the absence

of an “express[]” provision. ’

° See, e.g., Ala. Code § 11-47-190; Cal. Gov. Code § 818.4; Del. Code

Ann. Tit. 10, § 4011(a)(2); Idaho Code § 6-904B(3); Or. Rev. Stat.

§ 30.265(3)(c); S.C. Code Ann. § 15-78-J0(1) & (2); Tenn. Code Ann.

§ 29-20-201.

’ Any conclusion that damages and attorney’s fees are appropriate

relief under § 332(c)(7(B)(V) would rest on the implausible premise that

18

Il. INTERPRETING THE 1996 ACT TO ALLOW

SUITS UNDER § 1983 WOULD UPSET CON-

GRESS’ CAREFULLY CHOSEN ENFORCE-

MENT SCHEME AND RUN COUNTER TO SEA

CLAMMERS AND ITS PROGENY.

The Ninth Circuit reasoned that actions to enforce

§ 332(c)(7)(B)’s requirements with respect to zoning

decisions are cognizable under § 1983 because

§ 332(c)(7)(B)(v)’s enforcement provisions do not contain a

sufficiently “comprehensive” remedial scheme to overcome

the “presumption” that respondent is entitled to § 1983

remedies. Pet. App. 4a-Sa. In reaching this conclusion, the

Ninth Circuit lost sight of the “crucial consideration” this

Court has identified for determining whether § 1983 actions

are available—‘what Congress intended.” Smith v. Robinson,

468 U.S. 992, 1012 (1984). Allowing private parties to assert

claims under § 1983 to enforce federal standards for wireless

zoning and permitting decisions is fundamentally

incompatible with Congress’ desire to preserve existing state

and local zoning processes and place limits on enforcement

actions brought under § 332(c)(7)(B)(v). Cases such as

Middlesex County Sewerage Auth. v. National Sea Clammers

Ass'n, 453 U.S. 1 (1981), further support the conclusion that

§ 1983 actions are unavailable under § 332(c)(7).

Congress—while deferring to the traditional authority of state and local

governments over zoning matters—nonetheless intended to subject their

decisionmaking process to the extraordinary and unprecedented prospect

of damages suits and fee shifting for merely misapplying federal law.

Being subject to damages suits and fee shifting would create a strong

incentive for local governments to abdicate their authority over the zoning

and permitting of wireless facilities. Given the continued need of wireless

service providers to expand their networks and build additional towers,

the liability could be substantial in comparison to typical municipal

budgets. See, infra, pp. 21-23 (discussing budgetary consequences for

local governments of damages and fee awards).

19

A. Section 1983 Actions Are Fundamentally In-

consistent with the Mechanism for Judicial

Relief That Congress Chose To Include in 1996

Act.

As discussed supra, pp. 8-13, Congress patterned

§ 332(c)(7)(B)(v)’s review provisions after those typically

available under state law as part of its effort to facilitate

provision of wireless services while minimizing disruption to

existing zoning processes. If the door to § 1983 actions is

opened to private parties that challenge wireless zoning and

permitting decisions, important limits or § 332(c)(7)(B)(v)

review would be circumvented, thereby frustrating con-

gressional intent.

1. Plaintiffs proceeding under § 1983 could

circumvent the 30-day limitations period

governing actions under § 332(c)(7)(B)W)

and prevent expedited judicial review.

A key feature of § 332(c)(7)(B)(v) review is its 30-day

limitations period. See supra pp. 8-10 (discussing the zoning

law origins of the 30-day limit). This short limitations period

reduces the amount of time local governments need worry

about whether a particular zoning decision will be challenged

and helps bring about swifter resolution of disputes. It is

particularly beneficial to local governments as they deal with

the proliferation of litigation concerning the scope of

§ 332(c)(7)’s substantive requirements. Lower courts have

recognized that the statute “fairly bristles with potential

issues.” Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d

490, 494 (2d Cir. 1999). As wireless networks continue to

expand in terms of geographic reach and competitors, the

number of disputes continue to rise. See Pet. 26-28

(describing explosion of § 332(c)(7) litigation).

If § 1983 actions are available, however, plaintiffs “would

be freed of the short 30-day limitations period and would

20

instead presumably have four years to commence the action.”

Nextel Partners, Inc. v. Kingston Township, 286 F.3d 687,

695 (3d Cir. 2002) (citing 28 U.S.C. § 1658).° In this same

vein, it should be noted that parties to a § 1983 suit, unlike

those in a § 332(c)(7)(B)(v) appeal, would not be entitled to

have courts “hear and decide [the] action on an expedited

basis.” 47 U.S.C. § 332(c)(7)(B)(v). The consequences

would be significant. Permitting challenges to zoning deci-

sions to be filed up to four years after the fact and dispensing

with expedited review would deprive local governments of

the certainty afforded by § 332(c)(7)(B)(v)’s speedier proc-

esses. Furthermore, it would delay local zoning authorities’

receipt of timely, much-needed guidance from courts about

how to comply with § 332(c)(7). If private parties can invoke

§ 1983’s generous time-frame, local government decision-

makers may not learn that they have a good-faith but

erroneous view of § 332(c)(7) until many years, and many

other similarly mistaken decisions, later.

Resulting delays in obtaining final judgments—whether

from a longer limitations period or slower judicial decision-

making—can harm local governments and the public. Such

delays will slow the roll-out of personal wireless facilities and

increase the adverse fiscal consequences that § 1983 damages

and § 1988 attorney’s fee liability poses to local governments.

* Section 1658 provides that “[e]xcept as otherwise provided by law, a

civil action arising under an Act of Congress enacted after [December 1,

1990] may not be commenced later than 4 years after the cause of action

accrues.” Last Term, this Court held that “a cause of action ‘aris{es]

under an Act of Congress enacted’ after December 1, 1990—and therefore

is governed by § 1658’s 4-year statute of limitations period—if the

plaintiff's claim was made possible by a post-1990 enactment.” Jones v.

R.R. Donnelly & Sons Co., 124 S. Ct. 1836, 1845 (2004). A § 1983 action

brought to enforce rights secured by § 332(c)(7)(B) is “made possible by”

§ 332(c\7)(B), a post-1990 enactment.

21

2. Plaintiffs proceeding under § 1983 could

subject local governments to monetary

judgments and attorney’s fee awards.

Allowing private parties to bring § 1983 suits to enforce

§ 332(c)(7) would also allow litigants to seek monetary

damages and attorney’s fee awards, neither of which are

available under § 332(c)(7)(B)(v). As discussed above, all

available indicia of legislative intent strongly suggest that

Congress affirmatively did mot wish to saddle local

governments with potential liability for damages and

attorney’s fees for zoning and permitting decisions. In

addition to these indicia of congressional intent, it is worth

considering the real-world consequences that are likely to

follow from a judicial decision to expose local governments

to liability for damages and attorney’s fees under §§ 1983

and 1988.

There are thousands of local governments that potentially

would be affected by a decision holding them liable under

§ 1983 for violations of zoning and permitting requirements

under the 1996 Act. See The Municipal Year Book xi (2004)

(reprinting 2002 U.S. census data regarding number of county

and municipal governments). The vast majority of these

jurisdictions have less than 50,000 inhabitants. /d. at xii-xiii.

Many do not have full-time counsel or significant financial

resources.

Damages and attorney’s fees awarded under § 1983 would

reduce the amouni these local governments otherwise would

spend on services for their communities, such as police and

fire protection, infrastructure, and general services. Govern-

ments would pay either directly, from their general revenue,

or indirectly, through increased insurance premiums or

contributions to insurance alternatives, such as municipal

liability pools.

A recent survey of attorney’s fee awards in California civil

rights cases found that federal courts awarded attorney’s fees

22

at an average billable rate of $253.44 per hour. Michael Kao,

Calculating Lawyers Fees: Theory and Reality, 51 U.C.L.A.

L. Rev. 825, 841 (2004). Moreover, in four of the sixteen

federal cases reviewed in the survey, the fee award exceeded

$290,000. Jd. at 840-41. Attorney’s fees in civil rights

cases can substantially exceed the monetary damages

awarded to plaintiffs. See City of Riverside v. Rivera, 477

U.S. 561, 564-65 (1986) (upholding fee award of $245,456

where plaintiff recovered total damages of $33,350). Sub-

stantial attorney’s fees are also awarded in cases involving

declaratory and injunctive relief.”

If anything, these figures likely understate the potential

amounts involved in § 332(c)(7) disputes. Typical plaintiffs

in these suits are large telecommunications companies who

hire sophisticated counsel and have the resources to litigate

aggressively. Even though Respondent does not fit this mold,

the potential damage and fee amounts in this case are

staggering. See Josh Cohen, Supreme Court to Hear City’s

Antenna Case, Palos Verdes Peninsula News, Oct. 1, 2004,

(Respondent “told the News that ‘based upon attorney’s

fees, court costs and the loss of my revenue,’ the court could

grant him upward of $15 million”), available at

http://pvnews.nminews.com/articles/2004/10/01/local_news/n

ews|.txt. See also Nick Green, High Court to Rule on RVP

Tower Issue, The Daily Breeze, Sept. 29, 2004, at 1

(reporting that Respondent “said he is seeking more than

$3 million”).

Given their often razor-thin budgets, many local gov-

ernments may conclude that visual, aesthetic, and safety

* To place such awards in context, police officers and sheriff's deputies

had median annual base earnings of $42,270 in 2002, and firefighters

approximately $36,000 during the same time period. See U.S. Dep’t

of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook,

(2004), available at http://stats.bls.gov/oco/ocos!60.htm & http://stats.

bls.gov/oco/ocos158.htm.

23

concerns are not worth fighting for in view of the threat of a

damages or fee award being entered against them. Such a

result would undermine Congress’ intent to leave authority

for local zoning decisions in the hands of state and local

governments and compromise local governments’ ability to

protect their citizens. Cf H.R. Conf. Rep. No. 458, supra, at

208 (expressing intent that municipalities retain “the flexi-

bility to treat facilities that create different visual, aesthetic,

or safety concerns differently to the extent permitted under

generally applicable zoning requirements”).

B. This Court’s Precedents Further Demonstrate

That § 1983 Remedies Should Not Be En-—

grafted Onto The 1996 Act.

The court of appeals interpreted this Court’s decisions in

cases such as Wright v. City of Roanoke Redev. and Hous.

Auth., 479 U.S. 418 (1987), Blessing v. Freestone, 520 U.S.

329 (1997), and Middlesex County Sewerage Auth. v.

National Sea Clammers Ass'n, 453 U.S. 1 (1981), to support

its conclusion that § 1983 remedies were available. See Pet.

App. 3a-12a. In fact, this Court’s decisions support the

opposite result. In no case where Congress expressly created

a private right of action against state officials has the Court

held that a § 1983 remedy is available.

Most of this Court’s cases addressing whether private par-

ties have a cause of action under § 1983 did not involve

statutory schemes closely analogous to the scheme at issue

here. In several cases, the Court examined statutes that

created enforceable federal rights, but did not, in contrast to

§ 332(c)(7)(B\(v), expressly provide individuals with the

means to vindicate those rights in court. In each of these

cases, the Court concluded that “‘the availability of admin-

istrative mechanisms to protect the plaintiff's interests’ ” did

not defeat the plaintiff's ability to seek judicial review

via § 1983. Blessing, 520 U.S. at 347 (quoting Golden

24

State Transit Corp. v. City of Los Angeles, 493 U.S. 103,

106 (1989)).

For example, Wright examined an amendment to the

United States Housing Act that gave petitioners, tenants

living in low income housing, an enforceable right to pay rent

commensurate with their income, but did not expressly

provide petitioners with a cause of action to enforce the

Statutory limit. The court of appeals had inferred that

Congress’ failure to include a specific provision giving

petitioners access to court while investing the Department of

Housing and Urban Development with audit and budgeting

authority indicated that petitioners had to rely on the

Secretary to ensure compliance. See 479 U.S. at 428. This

Court reversed, holding that provisions granting an

administrator “generalized [auditing and oversight] powers

[were] insufficient to indicate a congressional intention to

foreclose § 1983 remedies.” /d. at 428.

Likewise, Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498,

521 (1990), examined the Medicaid Act, which “contain[ed]

no . . . provision for private judicial or administrative

enforcement” of a hospital’s statutory right to reasonable and

adequate reimbursement rates. Again, the Court concluded

that statutory provisions granting the Secretary of Health and

Human Services general budget and oversight authority and

requiring States to adopt certain administrative review

schemes were not “sufficiently comprehensive to demonstrate

a congressional intent to withdraw the private remedy of

§ 1983.” Jd. at 522. Blessing similarly held that provisions

of Title IV-D of the Social Security Act that granted the

Secretary limited powers to audit and cut federal funding, but

did not provide private parties with a private cause of action,

did not create a remedial scheme “comprehensive enough to

close the door on § 1983 liability” for violations of rights that

were secured by the statute. 520 U.S. at 348. Accord Golden

State, 493 U.S. at 108-09 (§ 1983 action available where

25

National Labor Relations Board “ha[d] no authority to ad-

dress conduct protected by the NLRA against governmental

interference” and no provision of the NLRA authorized

private suits for that purpose); Livadas v. Bradshaw, 512 U.S.

107 (1994) (same).

In stark contrast to Wright, Wilder, and Blessing are cases

such as Sea Clammers and Smith v. Robinson, 468 U.S. 992

(1984). Both examined whether § 1983 remedies remained

available to plaintiffs where the statutory scheme at issue, like

§ 332(c)(7) of the 1996 Act, expressly provided for a right of

action to enforce federally-secured rights. In both cases, this

Court found § 1983 actions foreclosed. See also Wright, 479

U.S. at 427 (“congressional intent to supplant the § 1983

remedy” is evidenced where “the statute[] at issue... . pro-

vide[s] for private judicial remedies”).

In Sea Clammers, plaintiff-respondent, an association of

commercial fishermen, claimed that the Environmental

Protection Agency and the Army Corps of Engineers allowed

defendant-petitioners to dump pollutants in violation of

Federal Water Pollution Control Act and Marine Protection,

Research, and Sanctuaries Act of 1972 and caused its mem-

bers to suffer $250 million in damages. See 453 US. at 5.

Both “Acts containfed] unusually elaborate enforcement

provisions” that allowed “private citizens” to “seek judicial

review . . . of various particular actions by the Administrator,

including establishment of effluent standards and issuance of

permits for discharge of pollutants,” and “citizen-suit pro-

visions authoriz[ing] private persons to sue for injunctions,”

but not damages. /d. at 13-14 & n.24.

Looking at the statutory remedies as a whole, the Court

“found it ‘hard to believe that Congress intended to preserve

the § 1983 right of action when it created so many specific

statutory remedies, including the two citizen-suit provi-

sions.”” Blessing, 520 U.S. at 347 (quoting 453 U.S. at 200).

26

It “therefore concluded that the existence of these express

remedies demonstrate[ed] . . . that [Congress] intended to

supplant any remedy that otherwise would be available under

§ 1983” to enforce federal statutory claims. Sea Clammers,

453 U.S. at 21. As in this case, the absence of a provision

expressly authorizing private parties to recover damages did

not warrant a different result.

In Smith the Court confronted a similar issue: whether the

existence of a statutory enforcement provision under the

Education of the Handicapped Act (EHA) (20 U.S.C. §§ 1400

et seq.) precluded petitioners from seeking relief under

§ 1983 for a “constitutional deprivation[]” that was “virtually

identical” to statutory claims redressable under the EHA. /d.

at 1008-09. Although the EHA’s judicial review provision

did not state that it foreclosed § 1983 actions, the Smith Court

nonetheless had “little difficulty concluding that Congress

intended the EHA to be the exclusive avenue” for enforce-

ment of claims “to a publicly financed special education.” /d.

at 1009. The Court’s holding was based on the recognition

that allowing § 1983 suits to proceed would bypass the

carefully tailored statutory scheme Congress intended to

ensure that children receive a free appropriate public

education. See id. at 1011.

This case falls squarely within the Sea Clammers-Smith

line of decisions. In enacting § 332(c)(7), Congress did not

simply leave it to federal administrative officials to enforce

its provisions. Rather, Congress expressly created a private

right of action to challenge zoning decisions that violate the

federal standards set forth in § 332(c)(7)(B). Congress’

decision to provide in § 332(c)(7)/B) a “mechanism for

judicial relief,” H.R. Conf. Rep. No. 458, supra, at 208, that

parallels, in terms of timing, scope, and remedies, the review

that is available in nearly every State for zoning and

27

permitting decisions is conclusive evidence of its intent to

foreclose resort to § 1983.'°

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted,

ROBERT A. LONG RICHARD RUDA*

HEIDI C. DOERHOFF Chief Counsel

COVINGTON & BURLING JAMES I. CROWLEY

1201 Pennsylvania Avenue, N.W. STATE AND LOCAL LEGAL

Washington, D.C. 20004 CENTER

(202) 662-6000 444 North Capitol Street, N.W.

C ] Suite 309

toes Washington, D.C. 20001

(202) 434-4850

* Counsel of Record for the

Amici Curiae

'°For the numerous reasons explained above, Congress intended

that § 332(c)7B\v) provide the exclusive remedy for violations of

§§ 332(c7)\B) (i)-(iv). There is thus no merit to the court of appeals’

contention that the savings clause of the 1996 Act (Pub. L. No. 104-104,

§ 601, 110 Stat. 143, reprinted in 47 U.S.C. § 152 {note)) evidences

congressional intent to preserve § 1983 remedies for violations of

§ 332(ch(7)(B). See Pet. App. 10a-12a. Recognizing the exclusivity of the

§ 332 remedy does not impair § 1983, as the latter remains available to

redress violations of federal rights whenever Congress did not intend to

foreclose its use. And as explained above at p. 17, authorizing damages

actions for violations of § 332 would impair state laws denying damages

liability and attorney’s fees for erroneous zoning and permitting decisions.