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Info-Hams Digest            Fri, 11 Jan 91       Volume 91 : Issue  54

Today's Topics:
                                PRBWON

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----------------------------------------------------------------------

Date: (null)
From: (null)
Subject: PRBWON
    This file was created by W A 8 Z H N, J.D. (Jim) MacMILLAN
    2760 Gibson Dr.  Rocky River, OH 44116

    NOTE: the symbol for section is not compatable in plain ascii and
        will be shown as (sect.) in 19 places

    NOTE: underlining is a function of hardware or software and is omitted

    A great effort was made to properly format and correct the
    errors made when this document after the printed copy was
    scanned into this ASCII format.
^L



                        filed 90 sept 21 am11:26
                        clerk U.S. court
                        northern ohio district
                            cleveland

                UNITED STATES DISTRICT COURT

                NORTHERN DISTRICT OF OHIO

                 EASTERN DIVISION

    JAMES D. MacMILLAN,          )        1:87,CV 2820
                                 )
    Plaintiff,                   )
                                 )
       - vs -                    )                ORDER
                                 )
    CITY OF ROCKY RIVER, et al., )
                                 )
    Defendants.                  )


    Battisti, J.


    Before the court is Defendants' Motion to Dismiss and/

    or for Summary Judgment.  Also before the court is Plaintiff's

    Motion for Partial Summary Judgment on Counts I and III of his

    Complaint.

         Plaintiff James D.  MacMillan ("MacMillan"), an amateur

    radio operator, licensed by the Federal Communication

    Commission, brings this action against the City of Rocky

    River, the Building Commissioner for the City of Rocky River

    ("Commissioner"), in his individual and official capacities,

    and the members of the Board or Zoning and Building Appeals

    of the City of Rocky River ("Board"), individually and in

    their official capacities, for denying, pursuant to certain

    City ordinances, his application to construct a thirty foot

    radio antenna system at his Rocky River residence.  MacMillan

    seeks a declaratory judgment, injunctive relief and damages,

    based upon alleged violations of his rights under the United

                1
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    States Constitution and relevant federal statutory law (1)

         Jurisdiction in the federal district court is predicated

    upon these alleged violations of the United States

    Constitution and federal statutory law.  28 U.S.C. (sect.)(sect.) 1331,

    1337 and 1343 (1982).




    I. FACTS

         On or about January 20, 1987, Plaintiff applied to the

    City of Rocky River for a building permit to construct a

    thirty (30) foot antenna system at his residence on Gibson

    Drive in Rocky River.  On June 5, 1987, the Commissioner

    notified the Plaintiff in writing that his application for a

    building permit was denied based upon three grounds.  First,

    the Plaintiff's proposed radio tower would exceed the maximum

    height allowance under section 1143.10(b) of the Codified

    Ordinances of the City of Rocky River.  Section 1143.10(b)

    states in relevant part that:


        "broadcasting towers, radio... antennae... may
        be erected above the height limit for the district,
        subject to the following constraints:

            (1) The height from the base of such
            structure, or the uppermost point at which such
            structure is attached to a building, to the top
            of such structure shall not be greater than the
            horizontal distance from the base of the
            structure to the nearest adjoining property

    --------------
         (1)Specifically, as an amateur radio operator, Plaintiff
    claims violations of his rights under the Communications Act
    of 1934, 47 U.S.C. (sect.) 151, et seq., and the rules and
    regulations of the Federal Communications Commission ("FCC")
    promulgated thereunder, 47 C.F.R. , Part 97.

                2
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        line.

        Codified Ordinances of the City of Rocky River (sect.)
        1143.10 (Ord.  59-73, Passed July 23, 1973) (1985).

    In addition, the Commissioner stated that Plaintiff failed to

    provide certain technical information necessary to reviewing

    the permit application.  Finally, the Commissioner stated that

    the proposed radio tower was not necessary for the development

    of Plaintiff's property and would result in a substantial

    impairment of neighboring real estate values, thus justifying

    denial of the permit pursuant to section 1333.02 of the

    Codified Ordinance of the City of Rocky River.  Section

    1333.02 states that:

        Whenever application is made for a permit to
        construct or alter a building or structure within
        this City, and the Building Commissioner finds that
        the proposed building or structure is of such value,
        design, material or location that it will result in
        a substantial impairment or destruction of value in
        neighboring real estate, and if he further finds
        that the use of the particular design, material or
        location proposed, or substantially similar ones,
        is not reasonably essential to the development of
        the property proposed to be built or altered, the
        Building Commissioner shall refuse to issue the
        permit.  He shall within five days notify the
        applicant of such refusal and the reason thereof.

        Codified Ordinances of the City of Rocky River
        (sect.)1333.02 (Ord.  3077, passed November 14,
        1955) (1985).

         Plaintiff appealed this determination to the Board.  On

    or about August 13, 1987, the Board approved the

    Commissioner's decision to refuse Plaintiff's application for

    a building permit.


                    3
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    On or about August 27, 1987 Plaintiff appealed the

    Board's decision to the Cuyahoga County Court of Common Pleas,

    pursuant to Ohio Rev.  Code Ann.  (sect.) 2506.01 (Anderson 1981 &

    Supp.  1989).(2) See James D.  Macmillan, et al.  v.  the City of

    Rocky River, Ohio, et al. , Case No.  135089.  On or about

    October 6, 1987, Plaintiff filed a Motion for Enlargement of

    Time with the Cuyahoga County Court of Common Pleas,

    requesting an extension until October 27, 1987, to file a Brief

    in Support of his Appeal.  On or about October 27, 1987,

    Plaintiff filed a Motion to Stay Proceedings in that Appeal.

    On November 9, 1987, Defendants filed a Brief in Opposition

    to Plaintiff's Motion to Stay Proceedings in the Court of

    Common Pleas.  Apparently, Plaintiff has, to date, filed no

    brief in support of his appeal in the court of common pleas.

         On October 27, 1987, the same day Plaintiff filed his

    motion to stay proceedings in the court of common pleas,

    Plaintiff also filed the complaint in the instant case in

    federal court.

         The complaint alleges six claims against the City, the

    Commissioner and the Board:


    -----------------
    (2)  (sect.) 2506.01 states that:

        Every... decision of any... board... or any
        political subdivision of the state may be reviewed by the
        common pleas court of the county in which the principal
        office of the political subdivision is located...






                    4
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        Count I --- Sections 1331.01, 1333.02, and 1143.11(b) of

    the City Ordinances contravene federal law on their face and

    as applied to Plaintiff, thereby violating Art.  VI (sect.) 2 of the

    United States Constitution.

         Count II --- Sections 1331.01, 1333.02, and 1143.11(b)

    are unconstitutional on their face and as applied, in that

    they unreasonably burden radio communications and interstate

    commerce, thereby violating Art.  I  (sect.) 8.

         Count III --- sections 1331.01, 1333.02, and 1143.11(b)

    are impermissibly vague and overbroad, thereby violating the

    First and Fourteenth Amendments. In addition, Defendants

    failure to promulgate reasonable rules relating to the grant

    of permits deprives Plaintiff of equal protection and due

    process, in violation of the Fourteenth Amendment.

         Count IV --- Sections 1331.01, 1333.02, and 1143.11(b)

    are void and unconstitutional on their face and as applied

    insofar as they constitute an invalid exercise of state police

    power.

         Count V --- sections 1331.01, 1333.02, and 1143.11(b) are

    void and unconstitutional on their face and as applied in that

    they deprive Plaintiff of equal protection in the exercise of

    his constitutional rights, guaranteed by the Fourteenth

    Amendment.

         Count VI --- Defendant commissioner and Board members

    conspired to and did, under color of State law, deny plaintiff

    his constitutional right to a fair hearing and of his rights


                    5
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    and privileges under the First and Fourteenth Amendments and

    by statute.

         Plaintiff seeks declaratory and injunctive relief, as

    well as damages.  The suit names as defendants the City of

    Rocky River, the Commissioner in his official and individual

    capacity, and the Board members in their official and

    individual capacities.

         Defendants argue that the court should invoke the

    doctrine of abstention and decline to exercise jurisdiction.

    Alternatively, Defendants argue that Plaintiff's complaint

    should be dismissed in its entirety for failure to state a

    claim upon which relief can be granted, and/ or Defendants

    should be awarded summary judgement as a matter of law.

    Defendants also argue that the Commissioner and the Board

    members are protected from civil liability by qualified

    immunity, and therefore, the complaint against them in their

    individual capacity should be dismissed.  Finally, Defendants

    argue that the Board members are not proper parties to the

    lawsuit, and thus, the court should dismiss all claims alleged

    against the members of the Board in their official capacity.

         Plaintiff has moved for partial summary judgement on

    counts I and III.


    II.  ABSTENTION

         The court finds no reason to abstain in the instant case.

    Noting that "[a]bstention from the exercise of federal

                    6
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    jurisdiction is the exception, not the rule," Colorado River

    Water Conservation Dist.  v.  United States, 424 U.S.  800, 813

    (1976) and that absent "exceptional circumstances," County of

    Alleqheny v. Frank Mashuda Co. , 360 U.S.  185, 189 (1959),

    federal courts have "the virtually unflagging obligation..

    . to exercise the jurisdiction given them, " Colorado River,

    424 U.S.  at 817, the Supreme Court has confined the

    circumstances appropriate for abstention to three general

    categories: (1) those that present "a federal constitutional

    issue which might be mooted or presented in a different

    posture by a state court determination of pertinent state law"

    ("Pullman" abstention) ; (2) those that present "difficult

    questions of state law bearing on policy problems of

    substantial public import whose importance transcends the

    result in the case then at bar" ("Burford" abstention) ; and,

    (3) those in which "absent bad faith, harassment, or patently

    invalid state statute, federal jurisdiction has been invoked

    for the purpose of restraining state criminal proceedings"

    ("Younqer" abstention). Colorado River, 424 U.S.  at 815-816.

         Defendants' brief argues that this court should abstain

    from ruling on Plaintiff's constitutional allegations under

    the Pullman line of cases.  This argument, however,

    demonstrates a misunderstanding of the nature of that

    doctrine.  Defendants claim that this court should withhold

    judgement until the Ohio courts have an opportunity to rule

    on the preemptive effect of the Federal Communications

                    7
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    Commission's Memorandum Opinion and Order In the Matter of

    Federal Preemption of State and Local Regulations Pertaining

    to Amateur Radio Facilities, 50 Fed.  Reg.  38813 (adopted

    September 16, 1985) (hereinafter referred to as "PRB-l").

         While the preemptive effect of PRB-l will be discussed

    herein, it is enough to note at this time that preemption is

    not an unresolved question of state law of the type envisioned

    in the Pullman line of cases.  Preemptive effect is, instead,

    a question of federal law, and thus, not a proper ground for

    Pullman abstention.

         In addition, a federal court should only abstain under

    the Pullman doctrine where the state statute in question is

    uncertain.  Babbitt v.  United Farm Workers National Union, 442

    U.S.  289, 306 (1979).  In this instance, defendant has failed

    to indicate any way in which the relevant ordinances could be

    interpreted by Ohio state courts to avoid the constitutional

    questions raised in this action.

         Burford abstention is also inappropriate in this case,

    as the state interest in local land use policy is insufficient

    to overcome the strong federal interest in promoting amateur

    radio operations.  The Supreme Court stated in the Colorado

    river case that "the presence of a federal basis for

    jurisdiction may raise the level of justification needed for

    abstention." 424 U.S.  at 815 n.2l.  In issuing PRB-l, the

    FCC created "a limited preemption of state and local

    regulations which preclude amateur communications." 50

                8
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    F.Reg.  38813.  PRB-l states that:

        The ruling is necessary so that amateurs and local
        governing bodies alike will be aware of the strong
        federal interest in promoting amateur communication.
        The effect of the ruling is to give local
        communities and amateur operators a clear statement
        of the federal interest in amateur communications.

        Id.  (emphasis added).

    In addition, the ruling states that local ordinances "must be

    crafted to accommodate reasonably amateur communications" and

    to "represent the minimum practicable regulation to accomplish

    the local authority's legitimate purpose.  " Id.  at 38816.

    In light of this clear federal interest and the presence of

    at least partial preemption of local ordinances, it would be

    inappropriate for this court to abstain.

         Several other federal courts have refused to abstain

    in cases similar to the one at hand.  In Izzo v.  Borough of

    River Edge, 843 F.2d 765 (3rd Cir.  1988), the plaintiff, an

    amateur radio operator licensed by the FCC, applied to the

    borough planning board for a variance to construct a forty

    foot transmission tower at his residence.  After a hearing,

    the board denied the variance, and the applicant filed a

    complaint in district court alleging constitutional violations

    and an invalid exercise of the borough's police power.  The

    court stated that while " [f]ederal courts have expressly

    disavowed any desire to sit as a statewide board of zoning

    appeals hearing challenges to actions of municipalities..

    ., [t]he special circumstances here require that the district

                    9
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    court retain jurisdiction and adjudicate its dispute." Id.

    at 769.  Among those "special circumstances" was that "an

    express, narrow, and quite specific federal provision

    threatens, at most, only a minimal disruption of a broad state

    policy." Id.  See also Bodony v.  Incorporated Village of

    Sands Point, 681 F.Supp.  1009, 1014 (E.D.N.Y.  1987) (finding

    abstention in such cases "inappropriate").

         Accordingly, abstention is not warranted in the instant

    case.



    III.  STANDARD OF REVIEW

         Defendants argue that this action should be dismissed

    pursuant to Fed.  R.  Civ.  Proc.  l2(b) (6) for failure to state

    a claim upon which relief can be granted or alternatively that

    summary judgment should be granted.  The court will treat

    Defendant's motion as one for summary judgment, as matters

    outside the pleadings are presented to and not excluded by

    the court.  Fed. R.  Civ.  P.  12 (b). The granting of summary

    judgment is proper "if the pleadings, depositions, answers to

    interrogatories, and admissions on file, together with the

    affidavits, if any, show that there is no genuine issue as

    to any material fact and that the moving party is entitled to a

    judgment as a matter of law." Fed.  R.  Civ.  P.  56(c) ; see

    Celotex Corp.  v.  Catrett, 477 U.S.  317 (1986). In considering

    the propriety of a motion for summary judgment, the court must

    view all facts and inferences in a light most favorable to the

                    10
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    nonmoving party.  Securities and Exchange Commission v.  Blavin,

    760 F.2d 706, 710 (6th Cir.  1985).

         "The moving party has the burden of showing the absence

    of genuine disputes over facts which, under the substantive

    law governing the issue, might affect the outcome of the

    action." Harris v.  Adams, 873 F.2d 929, 931 (6th Cir.  1989)

    (citing Anderson v.  Liberty Lobby, Inc. ., 477 U.S.  242

    (1986)). The nonmoving party, on the other hand, "is required

    to present some significant probative evidence which makes it

    necessary to resolve the parties' differing versions of the

    dispute at trial." 60 Ivy Street Corp.  v.  Alexander, 822 F.2d

    1432, 1435 (6th Cir.  1987) (citing First Nat'l Bank of Arizona

    v.  Cities Serv.  Co., 391 U.S.  253, 288-89 (1968)).  The

    nonmoving party must go beyond the pleadings "and by her own

    affidavits, or by the depositions, answers to

    interrogatories, and admissions on file, ' designate specific

    fact showing that there is a genuine issue for trial."

    Celotex Corp. , 477 U.S.  at 324.


    III.  PRECLUSION

         Plaintiff seeks summary judgement in this case on the

    ground that the local ordinances in question, both as written

    and applied, are preempted by PRB-l, and thus, may not be

    enforced without violating the Supremacy Clause of Article IV,

    section 2 of the United States Constitution.  "Federal

    preemption is premised on the Supremacy Clause and

                    11
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    manifestation of Congressional intent to exclude state law."

    Bulchis v. City of Edmonds, 671 F.  Supp.  1270, 1273 (W.D.  Wash

    1987) (citing Chicago & North Western Transportation Co.  v.

    Kalo Brick & Tile Co., 450 U.S.  311, 317 (1981)).  As

    "[f]ederal regulations have no less preemptive effect than

    federal statutes, " Fidelity Fed.  Sav.  & Loan Ass'n v.  De La

    Cuesta, 458 U.S.  141, 153 (1982), the FCC has the power to

    preempt local ordinances which conflict with federal policies.

    The FCC issued PRB-l pursuant to its power to "make such rules

    and regulations, and issue such orders, not inconsistent with

    this chapter, as may be necessary in the execution of its

    functions.  " 47 U.S.C.  (sect.) 154(i).

         It must be noted initially that this court need not even

    consider the possible preemption of (sect.) 1143.11(b), as it is the

    court's opinion that there is no violation of that ordinance

    as drafted.  Where a "state's highest court has not spoken to

    the question in controversy, the federal court must discern

    how the state courts would respond if confronted with the

    question.  " Hartford Fire Ins.  Co.  v.  Lawrence, Dykes,

    Goodenberger, Bower & Clancy, 740 F.2d 1362, 1365 (6th Cir.

    1984). Neither party has identified any instance in which the

    Supreme Court of Ohio has had the opportunity to interpret

    (sect.) 1143.11(b).  Certainly, defendant has shown no state court

    support for the Commissioner's interpretation of the

    ordinance.  See Deposition of Kevin Beirne, at 78-83.  "Under

    Ohio law, " [i]t is a cardinal rule that a court must first

                    12
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    look to the language of the statute itself to determine the

    legislative intent. ... If that inquiry reveals that the

    statute conveys a meaning which is clear, unequivocal and

    definite, at that point the interpretive effort is at an end

    and the statute must be applied accordingly.  ' " Id.  at 1365

    (citing Provident Bank v.  Wood, 36 Ohio St.2d 101, 105-06, 304

    N.E.2d 378 (1973)).

         The Sixth Circuit has also stated that in the absence of

    state authority, federal courts must be "guided by applicable

    principles of state law and by relevant decisions of other

    jurisdictions." Aims v.  State Farm Fire & Casualty Co. , 731

    F.2d 1245 (1984).  The Supreme Court of Ohio has stated:

            This court has long held that statutes imposing
            restrictions on the use of private property must be
            strictly construed. ... All doubts should be
            resolved in favor of the free use of private
            property rather than in favor of restrictions on
            such use.

            Gennari v.  Andres-Tucker Funeral Home, Inc. , 21 Ohio St.
            3d 102, 488 N.E.2d 174, 177 (1986).


        See also Pinnacle Woods Survival Game, Inc.  v.  Hambden

        Township Zoning Inspector, 33 Ohio App.  3d 139, 514 N.E.2d

        906, 908 (1986) (stating that "[s]tatutes or ordinances which

        impose restrictions upon the use of private property will be

        strictly construed and their scope cannot be extended to

        include limitations not therein clearly proscribed") ; and

        Cicerella, Inc.  v.  Jerusalem Township Bd.  of Zoning Appeals,

        59 Ohio App.  2d 31, 392 N.E.2d 574, 577 (1978) (stating that

        "[i]n determining the permitted use of property under a zoning


                                     13
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    Classification in which terms and language therein are not

    otherwise defined, the common and ordinary meaning of these

    terms and language must be considered, liberally construing

    the terms and language in favor of the permitted use so as not

    to extend the restrictions to any limitation of use not

    therein clearly prescribed").

         The plain language of the   (sect.) 1143.11(b) allows for two

    methods of measuring antenna height.  An antenna may either

    be measured from its base to its top, or from the uppermost

    point at which it is attached to a building to its top.  As

    long as either of these measurements is shorter than the

    distance from the base of the antenna to the nearest adjoining

    property line , there is no violation of the ordinance.

    Plaintiff's thirty foot antenna will be attached to the

    building at a height of twelve feet and will be between

    twenty-seven and thirty feet from the nearest adjoining

    property line.  Since there is no violation of the ordinance

    as drafted this court need not examine the question of

    preemption.

         The court now turns to the possible preemption of (sect.)

    1333.02.(3)   In issuing PRB-l, the FCC attempted to reach an

    Accommodation between the federal interest in regulating

    amateur radio operators and the state interest in regulating

    --------------

    (3)    The court will not consider plaintiff's challenge
        of (sect.)1331.01. Since plaintiff appealed the decision of the
        Commissioner, he was properly before the Board regardless of
        the filing of a protest under  (sect.) 1331.01.

                14
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    land use.  PRB-l describes the conflict as follows:

        Few matters coming before us present such a clear
        dichotomy of viewpoint as does the instant issue.
        The cities, counties, local communities and housing
        associations see an obligation to all of their
        citizens and try to address their concerns.  This
        is accomplished through regulations, ordinances or
        covenants oriented toward the health, safety and
        general welfare of those they regulate.  At the
        opposite pole are the individual amateur operators
        and their support groups who are troubled by local
        regulations which may inhibit the use of amateur
        stations or, in some instances ,totally preclude
        amateur communications.

        50 Fed.Reg.  at 38815.

    PRB-l determines that a limited preemption policy is

    warranted, and states:

        Because amateur station communications are only as
        effective as the antennas employed, antenna height
        restrictions directly affect the effectiveness of
        amateur communications.  Some amateur antenna
        configurations require more substantial
        installations than others if they are to provide the
        amateur operator with the communications that he/she
        desires to engage in. . ..  We will not, however
        specify any particular height limitations below
        which a local government may not regulate, nor will
        we suggest the precise language that must be
        contained in local ordinances, such as mechanisms
        for special exceptions, variances, or conditional
        use permits.  Nevertheless, local regulations which
        involve placement, screening, or height of antennas
        based on health, safety, or aesthetic considerations
        must be crafted to accommodate reasonably amateur
        communications, and to represent the minimum
        practicable regulation to accomplish the local
        authority's legitimate purpose.

        Id.  at 38816.

         The court concludes that (sect.) 1333.02 is not facially

    invalid since it provides a sufficient structure for balancing

    state and federal interests as required by PRB-l.  By its

                15
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    terms the ordinance provides for a balancing of the effect of

    an improvement on neighboring property values against the

    reasonable need for the improvement to develop the property.

    As interpreted by Defendant, however, reasonable need in this

    situation involves reasonable need for the particular antenna

    to carry on effective communication of the type desired.  See

    Defendant' Brief in Opposition to Plaintiff's Motion for

    Partial Summary Judgement, at 16.  Interpreted as such, the

    ordinance could be applied to give reasonable consideration

    to both the city's local interests and Plaintiff's federally

    protected interest in amateur radio operation.

         The court concludes, however, that the City of Rocky

    River did not apply the ordinance in such a way as to provide

    for the reasonable accommodation of amateur radio

    communications, and therefore, its ability to apply (sect.) 1333.02

    as it did in this action is preempted by PRB-l.

         It is only too clear from the depositions of Building

    commissioner Beirne and Gordon Stofer, a member of the Board

    of Zoning and Building Appeals, that neither the Commissioner,

    nor the Board had more than a cursory understanding of PRB-l

    and its requirements.  Despite this, the City's actions might

    still be held legitimate if the decision making process

    included a reasonable accommodation of the federal

    government ' s interest in amateur radio communications.

    Evidence of such an accommodation, however, is totally

    lacking.

                16
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         The Commissioner's letter of June 5, 1987 denying

    Plaintiff's application for a building permit was largely

    conclusory.  There was no indication in the letter that the

    Plaintiff's needs for adequate communication had been

    adequately considered.  This combined with the Commissioner's

    obvious lack of understanding of radio communications at the

    time of his deposition indicates that concerns over property

    values and neighbors protests may have predominated in the

    decision making process.(4)  The Board ' s verbal affirmance of the

    Commissioner's decision, unsupported as it is by any written

    opinion, fails to show any attempt to accommodate federal

    interests.  Quite simply, there is nothing in the record to

    indicate that federal interests in amateur radio operation

    were sufficiently considered, or for that matter even

    adequately understood, by either the Commissioner or the

    Board.

         Due to the court's holding on preemption, the plaintiff's

    second ground for summary judgement need not be considered.

    ------------------

         4    The third ground for the Commissioner's denial of
    a building permit was the Plaintiff's failure to submit
    certain technical documents.  While the City of Rocky River
    clearly has the right to require applicants for building
    permits to submit all necessary technical documents, the
    Plaintiff has raised the point that the Commissioner's first
    mention of some of these documents was in the letter denying
    the permit.  It is somewhat unclear from the record the extent
    to which the Plaintiff met the statutory requirement for a
    permit.  It is unnecessary, however, for the court to reach
    this point, since the Board's verbal affirmance of the
    Commissioner's decision was based upon the effect of the
    antenna on property values and the Plaintiff's need for the
    antenna.

                17
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    The only issue remaining is that of damages.




    IV.  DAMAGES

         Defendant claims that due to the availability of

    qualified immunity all claims for damages against the

    Commissioner and members of the Board in their individual

    capacities should be dismissed.  The Supreme Court of the

    United States has recognized that "permitting damages suits

    against government officials can entail substantial social

    costs, including the risk that fear of personal monetary

    liability and harassing litigation will unduly inhibit

    officials in the discharge of their duties." Anderson v.

    Creighton, 483 U.S.  635, 638 (1987).  In light of this danger,

    he Court has "generally provid[ed] government officials

    performing discretionary functions with a qualified immunity,

    shielding them from civil damages liability as long as

    their actions could reasonably have been thought consistent with

    the rights they are alleged to have violated." Id.  (citing

    Malley v.  Briggs, 475 U.S.  335, 344-45 (1986), for the

    proposition that "qualified immunity protects all but the


    plainly incompetent or those who knowingly violate the law ' " ).

         The applicability of qualified immunity turns on the

    "objective legal reasonableness" of the government official's

    action "assessed in light of the legal rules that were clearly

    established' at the time it was taken.  " Id.  (citations

    omitted). "On summary judgement, the judge appropriately may

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    determine, not only the currently applicable law, but whether

    that law was clearly established at the time an action

    occurred.  If the law at that time was not clearly

    established, an official could not reasonably be expected to

    anticipate subsequent legal developments, nor could he fairly

    be said to know' that the law forbade conduct not previously

    identified as unlawful." Harlow v.  Fitzgerald, 457 U.S.  800,

    818 (1982) (footnote omitted).

    As noted previously, the case at hand turns largely on

    the extent to which PRB-l preempts enforcement of the local

    ordinances in question.  While PRB-l indicated that local

    regulations "must be crafted to accommodate reasonably amateur

    communications, and to represent the minimum practicable

    regulation, " it also refused to "specify any particular height

    limitation below which a local government may not regulate"

    and declined to "suggest the precise language that must be

    contained in local ordinances." 50 Fed.  Reg.  at 38816.

         In light of this vague language, the court holds that

    Plaintiff's rights under PRB-l were not sufficiently clear

    that a reasonable government official should have known that

    enforcement of the ordinances in question would be violative

    of those rights.  The conduct of the Commissioner and the

    members of the Board is held to be objectively reasonable,

    thus entitling them to qualified immunity from damages.

         Plaintiff is instructed to submit a brief within twenty

    days of the entry of this order detailing the grounds and

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    Basis for any further claims for monetary damages.  Defendant

    may respond within ten days thereafter.


    IV.  CONCLUSION

         Accordingly, Defendant's motion for summary judgement is

    GRANTED to the extent that (sect.) 1333. 02 and 1143. 10 (b) are held

    to be facially valid, and the Commissioner and members of the

    Board are found to have qualified immunity from damages.

    Plaintiff's motion for summary judgement is GRANTED to the

    extent that the process employed by the City in denying his

    application to erect his antenna is declared invalid.

         IT IS SO ORDERED.









Frank J. Battisti
United States District Judge

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End of Info-Hams Digest
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