WASHINGTON-The U.S. Supreme Court Wednesday is expected to hear oral argument as it decides whether a city has to pay attorney fees if it loses a tower-siting case.
Mark Abrams, an SMR operator, wanted to use a 54-foot antenna on his property for commercial purposes but the permit was denied by Rancho Palos Verdes, Calif. Abrams sued and won in federal court in 2002. Since then Abrams has been trying to get attorney’s fees and other monetary compensation. Earlier this year, the U.S. Court of Appeals for the 9th Circuit ruled in Abrams’ favor.
“Local officials have every incentive to deny permits for antennas that are unpopular with local residents, even if those denials are later overturned (without a damages remedy). The Supreme Court’s cases have long established that municipalities may be liable for damages for violations of federal rights, even if the rights are embedded in complex statutory regimes and benefit entrepreneurs,” reads Abrams’ Supreme Court brief.
CTIA has entered the case on Abrams’ behalf.
“The award of damages and attorney’s fees is appropriate where injunctive relief alone cannot vindicate federal rights and local zoning authorities engage in willful disregard of federal rights or administrative chicanery that frustrates their vindication,” said CTIA.
When the Supreme Court agreed to review the 9th Circuit’s decision, Carol Lynch, city attorney for Rancho Palos Verdes, said it is a case of quality of life.
“With the unprecedented number of cellular antennas sprouting up in our communities, the decision that the Supreme Court hands down on this matter will have financial as well as quality-of-life ramifications for city and county governments across the nation,” said Lynch.
Rancho Palos Verdes’ mayor pro tem was even more emphatic. “Rancho Palos Verdes, with its prime location atop a hill, is especially vulnerable to being transformed from a community known for its breathtaking vistas of the ocean and inviting open spaces to a semi-industrial antennae farm,” said Terry Clark.
Abrams’ tower dispute began when he attempted to build a second tower on his property. After several back-and-forth attempts at the local level, Rancho Palos Verdes denied Abrams’ request. He then sued, citing Section 704 of the Telecommunications Act of 1996.
In passing Section 704, Congress allowed tower owners to go to court if a locality was holding up a siting or if it did not support its decision in writing.
A federal judge, after waiting more than a year to deliver a decision, sided with Abrams but said he was not entitled to damages. It was this decision that was overturned by the 9th Circuit and is being appealed by Rancho Palos Verdes.
“Congress acted to remove entrenched local obstacles to wireless services. It did so by protecting wireless service providers from local governments’ arbitrary and unsupported denials of permits for the antennas on which wireless services depend. It also made clear that any person aggrieved by such arbitrary action could seek relief in the courts, without any limitation as to the remedies that might be awarded. The right to be free from an arbitrary and unsupported denial of a permit may be remedied by an award of compensatory damages as well as a discretionary award of attorney’s fees,” said Abrams’ brief.
