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tional right white acting "under color" of state
<br />law. More importantly, § t983 provides money
<br />damages and § ~988 provides attorneys fees
<br />to the successful litigant, which is different
<br />from the American Rule where litigants gener-
<br />ally cover their own liti§ation costs.
<br /> Section ~983 was passed by Congress
<br />in ~87t but was rarely used unti~ nearly
<br />9o years later, when the U.S. Supreme Court
<br />gave private litigants a federal court remedy
<br />as a first resort rather than only in default of
<br />(or after) state action [Monroe v. Pope, 365
<br />U.S. ~67 (1961)]. Today, § t.983 actions most
<br />commonly involve First Amendment issues
<br />like freedom of speech; Fourth Amendment
<br />issues like search and seizure or use of force;
<br />Eighth Amendment issues like cruel and
<br />unusual'punishment; and Fourteenth
<br />Amendment claims of due process violations.
<br />8ut in this case, the Supreme Court was
<br />asked to decide whether Abrams was entitted
<br />(o a § t983 remedy for aviotation of. the
<br />Telecommunications Act.
<br />
<br />of the State and Loca~ Legal Center in
<br />Washin§ton, D.C.
<br />
<br /> "There are thousands of counties, munici-
<br /> palities, and townships in the United States,
<br /> including many with few inhabitants, timited
<br /> resources, and no full-time counsel, Faced
<br /> with the threat of large claims for attorneys
<br /> fees and damages by wei(-financed corpora-
<br /> tions represented by high-paced counsel,
<br /> local governments may be deterred f(om
<br /> orously protecting visual, aesthetic, and
<br /> safety concerns, Such a resu(t would defeat
<br /> Congress's intention to aiJow {ace{ govern-
<br /> ments to retain 'the flexibility to treat facflF
<br /> ties that create different visual, aesthetic, or
<br /> safely concerns differently to the extent per-
<br /> mitted under genera{(y app(icable zoning
<br /> requirements' (H,R. Conf. Rep. No. 4S8,
<br /> to4th Cong., zd Sess. 208 ~996)."
<br />
<br /> In addition to the potential serious fiscal
<br />impacts, APA noted that the rCA provides a
<br />swift review of potential violations (30 days)
<br />while property owners would presumably have
<br />,"our years to btm g a claim for damages under
<br />§ t983. Congress oatterned the rCA remedies
<br />
<br /> ARGUED BY APA
<br /> The American Planning Association joined
<br /> many other organizations, including National
<br /> League of Cities, National Association of
<br />· Counties, International Cib//County Manage-
<br />ment Association, and others to show the
<br />Court the potentially serious impacts to IDeal
<br />governments if properly owners could claim
<br />money damages and attorneys fees for via{a-
<br />rians'of the TEA, APA's amicus brief was
<br />drafted by Richard Rude and James I. Crowley
<br />
<br />after the state review mechanisms and took
<br />a deferential stance toward state and local
<br />zonin§ proce.sses. APA discussed the State
<br />Zoning Enabling Act in detail to show the
<br />Court why Congress drafted the TCA the way
<br />it did,
<br />
<br /> "Resulting delays in obtaining final iudg-
<br /> ments--whether from a longer limitations
<br /> period or slower judicial decision-making--
<br /> can harm local governments and the public·
<br /> Such delays wilt slow the roll.out of personal
<br />
<br />wireless facilities and increase the adverse
<br />fiscal consequences that § ~983 damages
<br />and § ~988 attorneys fee liability poses to
<br />(DCa( governments."
<br />
<br />THE COURT'S DECISION
<br />in a unanimous decision written by Justice
<br />Antonio Scalia, the Supreme Court concluded
<br />that Congress did nat intend for the judicial
<br />remedy provided by § 332(c)(7) to coexist with
<br />an alternative remedy available in a § z983
<br />action. This is a good decision for local gov-
<br />ernments and for planners becauseit means
<br />property owners who successfully challenge
<br />municipalities and counties on violations'of
<br />the TCA can ask the court to ;'emedy the viola-
<br />tion and issue the permit but cannot obtain ·
<br />money damages and attorneys fees.
<br />
<br />SAN REMO
<br />Which court should decide what? And when?
<br />That was the conundrum presented to the U,S.
<br />Suoreme Court in San Roma Hotel, L.P. v, City
<br />and Count~ o/San Francisco [t25 S. Ct, 249t
<br />Oune zo, zoos)].
<br /> To set the stage, one must remember
<br />that the American judicial system is made up
<br />of both the fedora[ courts (which include trio[
<br />ancl'appe)late courts divided into 13 circuits)
<br />and the state courts (which also include trial
<br />and appellate courts and the state supreme
<br />courts). Above it all is the United States
<br />Supreme Court.
<br /> Generally, the federal courts handle
<br />cases involving federal laws and the U,5,
<br />Constitution while the .state courts handle
<br />cases involving state laws and the state con-
<br />stitutions. Decisions from a trial court might
<br />be appealed to an appellate court so there is
<br />an opportunity to review and correct mistakes.
<br />8ut imagine the chaos tha~ would ensue if a
<br />litigant, dissatisfied with the decision from
<br />one court, could simply take her case to
<br />another court, not to review the first court's
<br />decision, but to make her arguments anew.
<br />What a boon for the lawyers, but a mess for
<br />everyone else who want some do.sure and
<br />finality to these disputes.
<br /> The Founding Fathers anticipated such -
<br />mischief when they included the "full faith
<br />and credit clause" in the U.S. Constitution.
<br />Article IV, § z demands that
<br />
<br /> "Full Faith and Credit shall be given in
<br /> each State to the public Acts. Records, and
<br /> iudicial Proceedings of every other State.
<br /> And the Congress may by general Laws pre-
<br />
<br />232
<br />
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<br />AMERICAN pLANNiNG ASSOCIAnON [ page
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