Agenda - Planning Commission - 07/05/1995

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[ Z.B. : June 15, 1995 Page 3 Ordinance +- Did FCC Regs Preempt Ordinance's Restrictions on Satellite Dish? Loschiaoo v. City of Dearborn, 33 E3d 548 (Michigan) 1994 In his backyard in Dearborn, Mich., Loschiavo installed a 10-foot-wide, receive-onl~ satellite dish antenna that sat on a 20-foot mast. Three days later, he got a notice that the dish violated the city's zoning ordinance, which required residents to ,get a permit for any antenna with a diameter of more than 3 feet. The ordinance also prohibited installation of any antenna with a diameter big- ger than 8 f~et Or more than 12 feet tail. Loschiavo appIied for a variance, but the city den{ed it and ordered him to remove the antenna. Loschia~o sued the city, arguing that the ordinance Violated his federal constitutional rights and was preempted by a Federal Communications Com- mission regulation. The FCC regulation prohibited zoning ordinances that inter- fered excessively with satellite antenna installation. In addition to seeking an order that wbuld allow him to keep his antenna, Loschiavo said the rights cre- ated by the ~cC regulation gave him the right to sue for damages under Section 1983 of the ~federal Civil Rights Act of 1964. The cou~'t granted the city judgment without a trial on the constitutional claims. It found that the local ordinance did not violate Loschiavo's Constitu- tionaI right~, and Loschiavo had no right to sue for damages under Section 1983. Howeyer, after a trial regarding Loschiavo's preemption claim, the court agreed that t.:he FCC regulation preempted the ordinance. Therefore, the court barred the city from enforcing it. Both patties appealed. DECISION~ Reversed in part and returned to the trial court. The cityi's judgment was reversed, and the case was returned to the trial court for fuSher proceedings. The court properly granted Loschiavo an order on the preemption c/aim. Loschiavo could seek damages under Section 1983 for violations of his rights under the FCC regulation. The regulation created an enforceable federal right that benefited Loschiavo and bound the city. Sutter v. ¢rtist M., 112 S. Ct. 1360 (1992). Wilder ~, Virginia HospitalAssociation, 496 U.S. 498, 110 S. Ct. 2510, 110 L.Ed. 2d 455 (1990). Code ~ Ci.ty Charter on Rezoning Conflicts With State Law Whitake~' v. City of Springfield, 889 S. W..2d 869 (Missouri) 1994 In 1988~ the state of Missouri changed a law which allowed citizens to protest rezoOing petitions. Under the law, people who owned a certain percent- age of land Within or immediately neighboring the area to be rezoned could protest. The.'! 1988 amendment increased the ownership percentage from 10 percent to 30 percent. The amendment also reduced the size of the vote required for a municipal legislature to approve a zoning change when a protest was made (with01ut a protest, a petition needed a simple majority vote). Before 1988, a challenged petition needed a three-fourths vote; after 1988, it needed a two- thirds vote. ?he law applied to all cities, towns, and villages in Missouri.