Howard v. City of Burlingame

• Decision Date: 29 August 1989
• Docket Number: No. C-87-5329 EFL.,C-87-5329 EFL.
• Citation: 726 F. Supp. 770
• Parties: Vernon HOWARD, Plaintiff, v. CITY OF BURLINGAME, Defendant.
• Court: U.S. District Court — Northern District of California

726 F. Supp. 770

Vernon HOWARD, Plaintiff, v. CITY OF BURLINGAME, Defendant.

No. C-87-5329 EFL.

United States District Court, N.D. California.

August 29, 1989.

Harold D. Caplener, San Jose, Cal., for plaintiff.

Natalie E. West, Meyers, Nave, Riback & West, San Leandro, Cal., for defendant.

ORDER

LYNCH, District Judge.

This case is before the Court on plaintiff's motion for reinstatement of his eighth claim for relief. Plaintiff's motion is denied for the reasons stated below.

FACTS

Plaintiff is a resident of the City of Burlingame and an amateur or "ham" radio operator licensed by the Federal Communications Commission ("FCC"). He wished to construct a retractable antenna tower on his property measuring twenty-one feet high when retracted and fifty-one feet high when fully extended. In June of 1987, as required by local ordinance, plaintiff applied for a special permit authorizing the erection of an antenna exceeding twenty-five feet in height. Although the City Planning Commission approved the application, the City Council subsequently denied it.

Plaintiff then filed suit in this Court asserting eight causes of action. In July of 1988, the Court ruled on the parties' cross-motions for summary judgment. At that time, the Court determined the thrust of plaintiff's lawsuit to be that the City's ordinances were preempted on their face and as applied by federal law regulating amateur radio use, as explained by a 1985 FCC declaratory ruling entitled "Federal Preemption of State and Local Regulations Pertaining to Amateur Radio Facilities." 101 F.C.C.2d 952, 50 Fed.Reg. 38,813 (1985) (hereinafter "PRB-1").

In an order dated July 29, 1988, 1988 WL 169074, this Court granted plaintiff's motion for summary judgment on his supremacy clause claims, finding that defendant was required to "reasonably accommodate Howard's radio activities and tailor its regulation to create the minimum interference with those activities consonant with promotion of the legitimate local interest at stake." The Court granted defendant's motion for summary judgment on the second through eighth causes of action. Plaintiff's eighth cause of action asserted a violation of 42 U.S.C. section 1983:

Defendant City did, under color of state law, deny plaintiff his constitutional right to a fair hearing and deprive plaintiff of rights and privileges secured to him by the First and Fourteenth Amendments to the United States Constitution and by statute.

Plaintiff's Complaint, Para. 52 (emphasis added). The parties briefed and argued the eighth cause of action solely on the constitutional grounds. This Court found that neither the local regulations themselves nor their application to plaintiff violated any constitutional provisions other than the supremacy clause (plaintiff's first cause of action).

Subsequently, the City Council, weighing the time and expense that would be required to continue litigation against the other demands on the City's limited resources, approved plaintiff's application. See, Resolution No. 24-89, City Council of Burlingame, Exhibit A to Motion for Reconsideration.¹

Plaintiff now seeks reinstatement of his eighth cause of action, arguing that his statutory, as opposed to constitutional, rights were violated. Apparently, at this late date and after having acquiesced for some time to the Court's constitutional interpretation of the eighth cause of action, plaintiff attempts to reinstate his section 1983 cause of action so that he may seek attorney fees under section 1988. Plaintiff has never before argued to the Court that his section 1983 claim asserts a violation of his statutory rights.

DISCUSSION

Plaintiff claims that he holds a license pursuant to regulations promulgated under the enabling provisions of the Federal Communications Act of 1934, 47 U.S.C. section 151 et seq. ("FCA"). He asserts that his operator's license, granted pursuant to 47 C.F.R. sections 97.5 and 97.7, affords him various "rights," particularly the right to pursue world-wide communication through the operation of an antenna tower at his licensed station at a height of fifty-one feet. This height is allowable under the relevant regulations, i.e., 47 C.F.R. section 97.45. He argues that the City's application of its zoning laws deprived him of this statutory and regulatory right and, therefore, he can proceed as an aggrieved party under section 1983.

42 U.S.C. section 1983 provides a cause of action for violation of a federal statute under color of state law. Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 2504, 65 L.Ed.2d 555 (1980); Boatowners and Tenants Association v. Port of Seattle, 716 F.2d 669, 671 (9th Cir.1983). Although the language of Maine v. Thiboutot appeared to grant broad rights, that language has been limited by subsequent cases. Section 1983 does not provide a remedy for every statutory violation. See, Boatowners, 716 F.2d at 671.

There are two exceptions to the application of section 1983 to remedy statutory violations: (1) where Congress has foreclosed private enforcement in the statute itself, and (2) where the statute at issue is not "the kind that created enforceable `rights' under section 1983." Middlesex County Sewerage Authority v. National Sea Clammers Assoc., 453 U.S. 1, 19, 101 S.Ct. 2615, 2626, 69 L.Ed.2d 435 (1981); Boatowners, 716 F.2d at 671.

A. First Exception: Comprehensive Scheme

To determine whether the first exception, the existence of a comprehensive scheme, precludes resort to section 1983, courts look to the language of the statute and other indicia of congressional intent. Coos Bay Care Center v. State of Oregon, Dept. of Human Resources, 803 F.2d 1060 (9th Cir.1986), vacated on other grounds, 484 U.S. 806, 108 S.Ct. 52, 98 L.Ed.2d 17 (1987) (remanded for consideration of mootness issue). The focus is on the "comprehensiveness" of the statute's remedial scheme; specific and detailed procedures for administrative and judicial review are likely to foreclose or preclude recourse to section 1983.²

Once it has been established that the state has deprived a plaintiff of a "right" secured by federal statute (see discussion of second exception, supra), section 1983 provides a remedial cause of action unless the state actor demonstrates by express provision or other specific evidence from the statute itself that Congress intended to foreclose such private enforcement. Wright v. Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 423, 107 S.Ct. 766, 770, 93 L.Ed.2d 781 (1987).

The parties agree that the statutory scheme in the case at bar does not preclude the possibility of private enforcement under section 1983 under the first exception. The statute provides absolutely no enforcement scheme for the type of rights asserted by plaintiff. Accordingly, it does not contain the type of comprehensive scheme which has been found to preclude a section 1983 action.

B. Second Exception: "Enforceable Rights"

This Court must now determine whether the statute at issue creates "rights" enforceable under section 1983. Plaintiff contends that his right to operate a tower arises out of both the FCA and the regulations promulgated thereunder. Regulations have the force of law and can give rise to rights enforceable under section 1983. Wright v. Roanoke, 479 U.S. 418, 431, 107 S.Ct. 766, 775, 93 L.Ed.2d 781 (1987).

In determining whether statutes and/or regulations create federal rights enforceable under section 1983, the key to the inquiry is the intent of the legislature. Id. at 433, 107 S.Ct. at 775. The Ninth Circuit has pointed out that there are three different approaches which have been taken in making this determination. Boatowners, 716 F.2d at 671-72. The first focuses on the existence of a jointly operated federal-state program. The second focuses on the nature of the rights asserted and requires that the rights asserted be in the nature of civil or personal rights, "including fundamental human, highly personal rights." The third, that adopted by the Ninth Circuit, uses the Cort v. Ash test for determining if a federal right has been created.

The Ninth Circuit is consistent with the Supreme Court in borrowing from the analysis established in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), for determining whether a private right of action in a statute exists. See, Wright v. Roanoke, 479 U.S. at 433, 107 S.Ct. at 775; Boatowners, 716 F.2d at 672 (explaining the difference in analysis between section 1983 and private right of action under a statute). In particular, the first prong of the Cort v. Ash test concerns the creation of a federal right. The Court must determine: (1) is plaintiff a member of the class for whose especial benefit the statute was enacted, and (2) did Congress intend to confer federal rights upon those beneficiaries. Id. In determining Congressional intent, the Court looks to the language of the statute. Smith v. Kirk, 821 F.2d 980, 982 (4th Cir.1987).

1. Does the Federal Communications Act Create a Specially Benefitted Class of Ham Radio Operators?

The Ninth Circuit has held that the special benefit test is satisfied where the statute places "unmistakable focus on the benefitted class." Boatowners, 716 F.2d at 673, n. 5 (citing Limongelli v. Postmaster General, 707 F.2d 368, 371 (9th Cir.1983)). In making this determination, courts may look to the language and stated purpose of the legislature and the legislative history of the statute.³

The purpose of the FCA is specifically set forth:

For the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio communication, and for the

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