Neufeld v. City of Baltimore

• Citation: 863 F. Supp. 255
• Decision Date: 14 April 1994
• Docket Number: No. 87-1383.,87-1383.
• Parties: Leon NEUFELD v. The CITY OF BALTIMORE, et al.
• Court: U.S. District Court — District of Maryland

863 F. Supp. 255

Leon NEUFELD v. The CITY OF BALTIMORE, et al.

No. 87-1383.

United States District Court, D. Maryland.

April 14, 1994.

William E. Seekford, Towson, MD, for plaintiff.

Michael G. Raimondi, Baltimore, MD, for defendant.

MEMORANDUM

HERBERT F. MURRAY, Senior District Judge.

The plaintiff, Leon Neufeld, erected a solid, ten-feet-wide receive-only satellite dish in his front yard. Thereafter, the plaintiff's satellite dish was found to violate the thirty feet front yard setback provision and an ordinance requiring a special permit to install the dish. Neufeld instituted the present suit after receiving eleven criminal convictions for these violations. In Neufeld v. City of Baltimore, 820 F.Supp. 963 (D.Md.1993), this Court held that Ordinance 266, as to the size restrictions for satellite dishes, was preempted by regulations of the Federal Communications Commission ("FCC"). Presently before this Court is defendants' motion for summary judgment, plaintiff's motion for reconsideration and plaintiff's motion for summary judgment on the remaining issues.

I. FACTUAL BACKGROUND

Neufeld resides in a single family residence (designated as R-1 district) in Baltimore City ("the City"). On March 31, 1984, Neufeld installed a satellite dish on a pole, fifty-five feet in front of his house. At that time, the erection of a satellite dish qualified as a "conditional use" in need of a special permit authorized by the Board of Municipal and Zoning Appeals of Baltimore City ("the Board"). See Baltimore City, Md., Code art. 30, § 4.1-1c (1983). In addition, the zoning regulations for the R-1 district require, unless specifically allowed, a setback of thirty feet of unobstructed yards from the ground level to the sky from the front lot line. Id. at § 4.0-2b, 4.1-2b. On April 11, 1984, Neufeld received a "Notice of Zoning Violation" for installing a satellite antenna within the setback provision without the required permit. Subsequently, Neufeld requested a variance from this zoning violation to the Board. However, this request was denied. He appealed this decision but the Circuit Court of Baltimore City affirmed it. Neufeld did not dismantle his dish and on October 8, 1985, the City filed criminal charges against him for violating the zoning ordinances. He was convicted and fined $100.00. After ten more convictions, Neufeld dismantled his dish and filed the instant suit.

Later that year, the City enacted Ordinance 266 which imposed an even more restrictive set of regulations upon the size, height, and placement of satellite dish antennas. Ordinance 266 limits satellite dishes to 4 feet in diameter if of solid construction, as plaintiff's, and 6 feet in diameter if constructed of mesh or wire. Id. at § 4.1-1b.1a (Supp.1993). The size limitation is six feet for accessory free standing satellite dishes constructed of mesh or wire screen. Id. at § 4.1-1b.1b (Supp.1993). However, the Ordinance allows for radio and other non-satellite television antenna of any size as "accessory uses" up to twelve feet above the building they are mounted on. Id. at 4.1-1b.1 (Supp. 1993).

In Neufeld, 820 F.Supp. at 963, this Court denied defendants' motion to dismiss and granted in part and denied in part, plaintiff's motion for partial summary judgment. This Court held that:

based on the reasoning in Olsen v. City of Baltimore, 321 Md. 324, 582 A.2d 1225 (1990), this Court concludes that Neufeld lacks standing to challenge his convictions under the satellite dish zoning ordinance, because his satellite dish independently violated the setback ordinance. Therefore, this Court will deny the motion of the plaintiff for partial summary judgment (1) on the request for a declaratory judgment (a) that the satellite dish zoning ordinance at issue was unconstitutional on any ground as applied to him, (b) that the defendants deprived him of his rights under the laws and Constitution of the United States, and (c) that he may install his satellite dish in his front yard; (2) on his request for an injunction ordering restitution by the defendants of all fines paid by him; and (3) on his request for summary judgment on his claims under 42 U.S.C. § 1983 on the issue of liability.

In sum, whether or not the satellite dish antenna zoning ordinance, before or after amendment in January 1985, validly applied to the satellite dish in the plaintiff's front yard makes no difference. Neufeld's antenna violated the setback ordinance, § 4.1-2b, and therefore the Board could require Neufeld to dismantle it without depriving him of any of his civil rights. Of course, in the absence of liability under § 1983, this Court may not award attorneys' fees under § 1988. See Hanrahan v. Hampton, 446 U.S. 754, 756 100 S.Ct. 1987, 1988, 64 L.Ed.2d 670 (1980) ("the statute ... permits the award of attorney's fees only to a `prevailing party'").

Id. at 968.

This decision had the effect of precluding all of Neufeld's claims except the one requesting declaratory judgment that the zoning ordinance is unconstitutional on its face. As to this claim, this Court held that Ordinance 266, to the extent that it prevented individuals living in residential (R-1) districts from installing satellite receive-only antennas between eight and twelve feet in diameter, it imposed an unreasonable limitation on, or prevented, reception of satellite delivered signals by satellite receive-only antennas. Therefore, this ordinance was preempted by 47 C.F.R. § 25.104, a regulation of the FCC.

II. MOTION TO RECONSIDER

Plaintiff contends that the Court erred in ruling on the preemption issue without deciding whether Ordinance 266 contained a reasonable and clearly defined health, safety, or aesthetic objective. Ordinances which differentiate between satellite receive-only antennas and other types of antennas are preempted by FCC regulations unless such regulations have a reasonable health, safety, and aesthetic objective and they do not impose an unreasonable limitation or cost to the user. 47 C.F.R. § 25.104 (1986). Both criteria must be met in order to avoid preemption of a zoning regulation that differentiates between satellite receive-only antennas and other types of antennas. The second criterion was not met since this Court found that Ordinance 266 imposed an unreasonable limitation as to the reception if the size was restricted to less than an eight foot wide satellite dish antenna. It was therefore unnecessary for this Court to review whether the ordinance had a reasonable objective.

This Court finds no merit in the remainder of Neufeld's arguments in support of this motion, since they are, in essence, the same arguments made by him in his motion for partial summary judgment. The Court will therefore not depart from or otherwise amend any of its prior rulings.

III. MOTION FOR SUMMARY JUDGMENT

A motion for summary judgment should be granted only if there is "no genuine issue as to any material fact, and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Summary judgment should be granted only when it is clear that there is no dispute concerning either the facts of the controversy or the inferences to be drawn from those facts. Morrison v. Nissan Motor Co., 601 F.2d 139, 141 (4th Cir.1979); Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir.1950). Nevertheless, a "mere scintilla of evidence" in favor of the non-moving party will not suffice to raise a genuine issue of material fact. Anderson, 477 U.S. at 252, 106 S.Ct. at 2512. For the purpose of deciding a motion for summary judgment, this Court must construe all facts and reasonable inferences in favor of the non-moving party on each count. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Gill v. Rollins Protective Services Co., 773 F.2d 592, 595 (4th Cir.1985).

Defendants' motion for summary judgment¹ seeks to close the instant case as a result of this Court's decision in Neufeld, 820 F.Supp. at 963. Defendants argue that all the issues in the complaint were resolved by this decision. Although this Court held that Neufeld does not have standing to bring any claims relating to his criminal violations because he violated the neutral setback provision, this Court will address plaintiff's claims related to his request for declaratory judgment that Baltimore City's zoning ordinance affecting satellite dishes is unconstitutional of its face.²

In his opposition, plaintiff advances the following arguments. First, Neufeld argues that the statute is unconstitutional on its face and preempted by federal regulation because it differentiates as to size, construction, and placement of satellite dishes and other types of antennas.³ In addition, he contends that FCC regulations preempt the setback ordinance as it applies to satellite dishes, since setback ordinances vary among the various zoning districts. Plaintiff now raises the issue that his lot extends to the center of the fifty foot wide front roadway. As a result, Neufeld alleges that his satellite dish, at its original site, would have been within the thirty feet setback provision. This Court will address each argument in turn.

As to the placement of satellite dishes, zoning regulations state that "all required yards shall be unobstructed from ground level to the sky, except as allowed in Section 2.08m." Baltimore City, Md., Code art. 30, § 4.0-2b (1983). Local zoning ordinance 4.1-2b.1 regulates the erection of structures on the front lawn of R-1 property. Id. at § 4.1-2b.1. The front yard setback provision for the R-1 district is 30 feet. Id. Any solid satellite dish less than 4 feet in diameter or any mesh or wire screen satellite antenna less than 6 feet in diameter has to be attached to the rear half of the roof of the principal building at least five feet beyond the center line of the roof....