As you may have seen in Steel in the Air’s newsletter this week, the US Supreme Court took up the case of City Rancho Palos Verdes vs. Abrams. Although the plaintiff of the case was a ham radio operator who was erroneously denied a tower, the ruling on this case will extend to cell towers as well. At issue is whether or not federal law authorizes damage suits against cities over the building of cell towers.
The cell tower industry of course supports the authorization of damages. Publicly, the industry hopes that this will assist them in developing the national wireless network they claim that Congress envisioned when it enacted the Telecom Act of 1996. Privately, they hope that it will force cities to abandon rejecting cell towers out of fear of potential damage suits.
Lawyers for the city argued that Congress never intended for the provision of damages and that cities should not be potentially liable for attorney’s fees and damages due to one mistake.
In actuality, those of us who work in the industry zoning and permitting towers know that these are not always “one mistake” situations. There are many communities that will deny every application for a cell tower, believing that they are “serving” their citizens by making the industry litigate every cell tower application. Some communities actually budget for the legal fees of these lawsuits. The City Commissioners can then state that they “fought” the evil cell tower companies- it was not their fault they were overturned by the overzealous courts.
Nonetheless, I don’t believe that cities should be exposed to damages for improperly denying a cell tower- once. I went against a small town in Missouri during a tower project and basically ended up using my attorney to threaten to invalidate their entire zoning code if they did not approve our tower. In the end, they caved because they could not afford the time to reinstiture their code if we were right. But they were not wrong in denying our cell tower, they were just small and wrong in how they went about it. And I don’t believe that should expose them to liability and possibly deplete their meager coffers. The power to litigate the improper denial is strong enough. (Ironically enough, the city’s attorney was my high school business education teacher).
However, if it could be proven that the city systematically denies applications, then I do believe they should be liable for damages and attorney’s fees.
If you have opinions on this matter- please feel free to share them.