DAILY BREEZE

January 20, 2005

Supreme Court weighs damages in RPV case
Man tells justices that the city owes him millions for trying to bar the commercial use of an antenna on his residential land.

By Toby Eckert
Copley News Service

WASHINGTON -- Several U.S. Supreme Court justices appeared skeptical of a Rancho Palos Verdes resident's argument Wednesday that the city owes him millions of dollars for trying to block commercial use of an antenna on his property.

Justice Anthony Kennedy expressed concern that allowing such a claim could unleash expensive litigation against cities nationwide.

"Even the smallest municipalities could be liable for hundreds of thousands of dollars in attorney fees, plus damages," he said during oral arguments in the case.

That echoed worries raised by attorneys for Rancho Palos Verdes, who said the amount of money sought by Mark Abrams could bankrupt the upscale Palos Verdes Peninsula community.

But Abrams' attorney, Seth Waxman, argued that federal law provides an "expansive right" to pursue damages when a person's federal rights have been violated. Abrams was "subject to what the record shows is prolonged and entrenched intransigence by this municipality," Waxman said.

Abrams believes he can prove $3 million to $5 million in damages from the city, figures he believes a court could triple.

But Councilman Doug Stern, an attorney who paid his own way to the nation's capital to attend the hearing, said he was encouraged with what he heard.

"The justices seemed very concerned with the implications of imposing damages and attorneys fees on municipalities," he said.

At issue is whether Congress intended to rule out the collection of monetary damages and attorney fees under provisions of the 1996 Telecommunications Act that imposed some limits on local governments' ability to block the siting of wireless communications towers.

In separate cases involving cellular phone companies, two federal courts ruled that the act precluded such penalties. But the U.S. 9th Circuit Court of Appeals in California ruled in Abrams' favor, prompting the U.S. Supreme Court to consider the issue.

The case, which began as a local zoning dispute, has national implications. It is being closely watched by the telecommunications industry and municipalities, which are often at odds over the construction of cellular phone towers and other wireless facilities.

The Justice Department also intervened in the case, on the side of Rancho Palos Verdes.

Abrams, an amateur or "ham" radio enthusiast, originally received permission from the city to erect his antenna in 1990. The permit "expressly prohibited commercial use," the city said.

Several years later, after disputes arose between Abrams and his neighbors, the city discovered that Abrams was using the 52.5-foot-high antenna for his company, Mobile Relay Associates, which provides dispatch services for local taxis, school buses and police and fire departments.

City officials alleged that the antenna and a second mobile antenna Abrams subsequently brought onto his property violated zoning laws because they were being used for commercial purposes.

The Los Angeles County Superior Court ordered Abrams to remove the mobile antenna and to stop using the other antenna for his business. Abrams then applied for a commercial use permit. The city denied the permit, saying a commercial antenna conflicted with the neighborhood's residential zoning, was a visual nuisance and could set a precedent for the construction of other antennas in the picturesque area.

Abrams filed suit against the city in U.S. District Court, arguing that the denial violated the Telecommunications Act. He also sought the payment of damages and legal fees by the city under federal civil rights law.

A federal court in Los Angeles ruled in Abrams' favor on the antenna in 2002. But it rejected his claim for a monetary judgment, ruling that the only remedy available to him was an expedited court review of his complaint under the federal Telecommunications Act.

Abrams appealed the latter decision to the San Francisco-based appeals court, which ruled in his favor. The court concluded that the Telecommunications Act "does not provide for any type of relief" and that Abrams could seek a monetary award under the civil rights law for the city's violation of his federal rights.

Most of the arguments presented to the Supreme Court on Wednesday centered on Congress' intent when it passed the Telecommunications Act and how strictly to interpret the remedies it provided for violations of the law.

"The act provides an elaborate process for application of the federal law," Jeffrey A. Lamken, an attorney for Rancho Palos Verdes, told the court. "This act does not provide damages."

James A. Feldman, an assistant solicitor general at the Justice Department, agreed. "The law is 100 percent clear," he said.

But Waxman argued that the conflicting court rulings on the issue "certainly show that Congress did not speak expressly" in the law.

"There is always a presumption that (relief under the civil rights law) will be available unless it is explicitly prohibited," he said.

Justice David Souter suggested that an attempt to win monetary damages was "incompatible" with the Telecommunications Act's guarantee of a quick court review of alleged violations.

"The one thing you can guarantee is (a suit for damages) is not going to be over expeditiously," he said.

Justice Antonin Scalia added, "I can't imagine that Congress wanted to impose damages and attorney fees on municipalities without giving the municipalities an opportunity to remedy their mistakes."

Justice Sandra Day O'Connor seemed more sympathetic to Abrams' argument.

"The statute is silent on the question of damages and attorney fees," she said.

O'Connor also wondered whether the Telecommunications Act would preclude monetary damages in a case where racial discrimination was alleged in a decision involving an antenna.

A ruling in the case is expected this spring.

Staff writer Nick Green contributed to this article.