The Southern District of California recently found a San Diego area municipality liable under 42 U.S.C. § 1983 for denying a conditional use permit for placement of an antenna site in violation of federal law. In lieu of the court assessing damages and attorney’s fees, the city has settled with the carrier for $250,000.
The district court’s order on § 1983 came on the heels of the Ninth Circuit’s decision in Abrams v. City of Rancho Palos Verdes, 354 F.3d 1094 (9th Cir. 2004), which determined that remedies under Section 1983, such as damages and attorneys’ fees, were available to wireless carriers for municipal violations of the Telecommunications Act.
The district court relied in part on the Abrams decision, but also ruled squarely in favor of the carrier on the question of whether a municipality can be found liable under § 1983 for denial of a single permit. However, the court moved beyond Abrams on a number of important legal fronts. The court expressly determined that § 332 of the TCA creates federally protected legal rights and held that a carrier could predicate a § 1983 claim on a violation of the Equal Protection Clause.
The court’s most important holding concerned the availability of § 1983 relief for the denial of a single permit. Under prior Supreme Court precedent, municipal liability under § 1983 required that the city engage in a “custom” or “policy” of violating federal rights. Although the Supreme Court clearly held that a single permit denial might constitute evidence of an “official policy” sufficient to warrant liability, no other federal court had applied that analysis to § 332 claims.
Following the Court’s order, the city reversed its decision on the antenna site. The city also withdrew its appeal and settled with the carrier as described above.
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