# Amicus Curiae Brief — Rancho Palos Verdes v. Abrams

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0003%3A19

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 544 U.S. 113

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0003%3A19. Public record. Not legal advice.