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48 Planning June 2005 NEWS AND DEPARTMEN'IS . Rancho Palos Verdes v. Abrams, the court held that a party cannot collect damages and attorney's fees aftet successfully challenging a denied permit to locate personal communica- tions facilities, Mark Abrams's house on Rancho Palos Verdes Peninsula, south of Los Angeles, is ideally located for radio transmission because of its elevation and unobstructed views. In 1989, the city issued Abrams a permit for a 52.5-foot-tall amateur radio antenna for his personal use. He sought no permits for smaller antennas that he erected later and used to provide two-way radio communications and signal repeater service to customers. In 1998, Abrams sought a permit to build a second antenna tower. The city discovered that Abrams had been using his antennas commercially, which requires a conditional use permit. The city determined Abrams had .late~ th.e zoning ordinance and got an W-lllCtlOn In state court. Abrams applied for the conditional use permit. The planning commission denied it, claiming that approval would continue "ad- verse visual impacts" from the existing anten- nas-a chief concern of neighbors-and es- tablish a precedent for similar projects in residential areas. The city council upheld the ruling. Abrams sued in federal court, arguing that the city's action violated the federal Tele- communications Act of 1996. He claimed that the permit denial discriminated against the provision of mobile relay services and was not supported by substantial evidence in the record. In addition to an injunction, Abrams sought damages and attorney's fees under Section 1983 of the 1988 Civil Rights Act. The trial court agreed with the permit denial, but re- jected Abrams's damages claim. The 9th U.S. Circuit Court of Appeals reversed on the damages issue. Limited remedy Section 1983 of the 1988 Civil Rights Act permits parties to bring suits against govern- ments and other entities in order to enforce individual rights under federal statutes and the U.S. Constitution, the Supreme Court observed. However, that does not mean that a person has a right to relief every time a state actor or local government violates a federal law. A claimant must show that the federal statute creates "an individually enforceable right in the class of the beneficiaries to which he belongs." Even then, "there is only a rebut- table presumption that the right is enforce- able under Section 1983." A defendant may defeat that presumption by showing that Congress did not intend to provide that remedy for a newly created statu- tory right. Evidence of congressional intent, the Court noted, may be found within the statute itself or may be inferred if the law's comprehensive enforcement scheme is incom- patible with ~ 1983, the Court said. Ordinarily, the Court continued, the pro- vision of a private remedy within the statut~ indicates that Congress did not intend to leave open the broader remedy under ~ 1983. The city and the U.S. government (in an amicus curiae brief) advocated for that inter- pretation, arguing that the availability of a private judicial remedy conclusively est~b- lishes congressional intent to preclude ~ 1983 relief. The Court declined to adopt that posi- tion, however. It noted that the ordinary inference that the statutory remedy is ex- clusive can be overcome by textual implica- tion to the contrary. In this case, however, there is no such contraty indication in the text of the TCA, the Court said. It adds no remedies to those available under ~ 1983 and limits relief in ways that ~1983 does not. Moreover, the TCA remedies available may not include com- pensatory damages and certainly do not in- clude attorney's fees and costs. The crux ofits decision, the Supreme Court said, was that the TCA's enforcement provi- sions had no effect whatsoever on the opera- tion of ~ 1983, and Abrams, therefore, was not entitled to damages. AP A' s amicus committee joined several other organizations, including the National League of Cities, the Council of State Governments, the U.S. Conference of Mayors, the Interna- tional City/County Management Association and the National Association ofTelecommu- nications Officers and Advisors, in filing a friend-of-the-court brief supporting the city. James Lawlor