Kay v. Rancho Palos Verdes ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES A. KAY, JR., individually 
and d/b/a LUCKY’S TWO WAY
RADIO; COMMUNICATIONS RELAY
CORPORATION, a California
corporation,
Plaintiffs-Appellants,
v.
CITY OF RANCHO PALOS VERDES, a No. 05-56149
municipality; RANCHO PALOS
VERDES PLANNING COMMISSION, and  D.C. No.
CV-02-03922-DSF
its members; FRANK LYON; LARRY
CLARK; JON CARTWRIGHT; THOMAS OPINION
LONG; CRAIG MUELLER; THEODORE
PAULSON; DONALD VANNORSDALL;
CITY OF RANCHO PALOS VERDES
CITY COUNCIL, and its members;
JOHN MCTAGGART; DOUGLAS STERN;
PETER GARDINER; BARBARA
FERRARO,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted
May 7, 2007—Pasadena, California
Filed September 21, 2007
Before: Barry G. Silverman, Kim McLane Wardlaw, and
Jay S. Bybee, Circuit Judges.
12901
12902 KAY v. CITY OF RANCHO PALOS VERDES
Opinion by Judge Wardlaw
12904 KAY v. CITY OF RANCHO PALOS VERDES
COUNSEL
C. D. Michel, Glenn S. McRoberts, and Thomas E. Macie-
jewski of Trutanich Michel LLP, Long Beach, California, for
the plaintiffs-appellants.
Carol W. Lynch, City Attorney, Rancho Palos Verdes, Cali-
fornia, for the defendants-appellees.
T. Peter Pierce and David G. Alderson of Richards, Watson
& Gerson, Los Angeles, California, for the defendants-
appellees.
KAY v. CITY OF RANCHO PALOS VERDES 12905
OPINION
WARDLAW, Circuit Judge:
James A. Kay, Jr. wanted to use the pre-existing amateur
antennae on the roof of a house in the City of Rancho Palos
Verdes (“the City”) for commercial wireless transmissions.
The City denied him a conditional use permit (“CUP”), and
Kay filed suit. The district court dismissed three of his claims,
but ruled in his favor on his Telecommunications Act
(“TCA”) and California state law claims. Although the district
court granted injunctive relief, it found that the City enjoys
immunity from damages, and denied Kay’s request for com-
pensatory damages. Kay appeals the dismissal of three of his
claims, the denial of damages, and seeks reassignment to a
different judge on remand. We have jurisdiction pursuant to
28 U.S.C. § 1291. We hold that the dismissed claims are now
barred by the doctrine of res judicata, and that the City is
immune from damages under controlling California law.
Finally, we hold that compensatory damages are not available
under the TCA, 47 U.S.C. § 332,1 and affirm the district court.
I. BACKGROUND
Kay is an FCC-licensed amateur and commercial broad-
caster who operates commercial two-way radio systems. Kay
operates transmission facilities throughout Southern Califor-
nia. In 1994 he purchased a single-family residence located in
Rancho Palos Verdes, California. The house had two pre-
existing vertical radio antennae mounted on the roof.2 It has
remained unoccupied since 1994. In January 1997, the City
sent Kay a notice of violation claiming that he was using his
1
Section 332(c)(7) was added to the Telecommunications Act of 1934
by § 704 of the Telecommunications Act of 1996. To avoid confusion, we
use the shorthand “TCA” to refer to the 1934 Act as amended by the 1996
Act. We do not use the section numbering from the 1996 Act.
2
The antennae can be used both for amateur and commercial purposes.
12906 KAY v. CITY OF RANCHO PALOS VERDES
rooftop antennae for commercial purposes. Kay denied using
the rooftop antennae commercially. But, in April 1998, he
installed antennae for commercial use inside an upstairs bed-
room of the house. Then, at some point, Kay installed three
more vertical antennae on the roof. On August 5, 1998, Kay
filed an application with the City seeking approval for non-
commercial use of the antennae on the roof. On July 7, 1999,
the City notified Kay that his five antennae were exempt from
regulation because they were intended for amateur use.
On April 14, 2000, the City filed suit against Kay in state
court, seeking an injunction compelling him to obey the
City’s municipal code and requiring him to obtain approval
from the City before using any of his antennae for commercial
purposes. On February 25, 2002, the state court entered a per-
manent injunction in favor of the City. It held that the interior
antennae operated on commercial frequencies and “that the
use of any antenna for commercial purposes without having
first obtained City approval, including but not limited to a
conditional use permit, was a public nuisance per se.” The
state court enjoined Kay from erecting any new antennae or
using his existing antennae for commercial purposes without
City approval. This decision was affirmed by the California
Court of Appeal in an unpublished opinion on December 30,
2003.
On June 21, 2001, Kay applied to the City for a conditional
use permit to allow commercial use of the existing five anten-
nae. In an October 23, 2001 report, City planning staff recom-
mended a conditional grant of his application. At a City
Planning Commission meeting on the same day, the commis-
sioners determined that Kay had lied about his past commer-
cial use of the antennae, but took no further action on the
application. In a November 13, 2001 report, City planning
staff again recommended granting Kay’s application. The
report also noted that after the application was filed, more
antennae were added to the roof of the house. A draft resolu-
tion granting Kay’s application for only the five antennae was
KAY v. CITY OF RANCHO PALOS VERDES 12907
proposed. On November 15, 2001, the City Planning Com-
mission issued a resolution denying commercial use of the
rooftop antennae, requiring removal of three of the five anten-
nae, and allowing commercial use of only the internal anten-
nae.
Kay appealed to the City Council. Before his appeal could
be heard, a district court decision on another challenge to the
City’s commercial broadcast policies caused the City to
amend its antenna regulations.3 On March 19, 2002, City
planning staff again recommended that all five antennae be
approved for commercial use. Finally, on April 16, 2002, the
City Council approved a resolution granting Kay the right to
commercially broadcast from only two of the rooftop anten-
nae. This approval was conditioned on, inter alia, Kay’s
removal of the other three antennae.
Kay filed suit in the United States District Court for the
Central District of California seeking an order that would
vacate the City’s conditional use permit decision and compel
it to allow him to broadcast commercially from all five anten-
nae. He invoked both the TCA and California state law. He
also asserted a number of other claims in the complaint, three
of which were dismissed by the district court. Kay sought
remedies including an injunction, a writ of mandate, damages
resulting from the partial denial of the conditional use permit,
and attorney’s fees under 42 U.S.C. § 1988(b). The district
court analyzed the City’s CUP decision and determined that
it was not supported by substantial evidence as required by
the TCA, 47 U.S.C. § 332(c)(7)(B)(iii), and California law. It
issued a writ of mandate requiring that the City permit com-
mercial use of all five of Kay’s antennae. The district court
3
That case eventually led to the Supreme Court’s first decision related
to the enforcement of and remedies under § 332. See Abrams v. City of
Rancho Palos Verdes, No. 00-9071SVW (RNBX), 2002 WL 34100670
(C.D. Cal. Mar. 18, 2002), rev’d, 354 F.3d 1094 (9th Cir. 2004), rev’d,
544 U.S. 113 (2005).
12908 KAY v. CITY OF RANCHO PALOS VERDES
denied damages under both California and federal law. Kay
appeals the dismissal of three claims, the denial of damages
under the TCA and state law, and asks that a new judge be
assigned on remand.
II. DISCUSSION
1. Dismissed Claims
Kay argues that the district court erred by dismissing three
of his claims without prejudice, rather than staying them
under Younger v. Harris, 401 U.S. 37 (1971).4 “Abstention by
a district court is required under Younger when three criteria
are satisfied: (1) State judicial proceedings are ongoing; (2)
The proceedings implicate important state interests; and (3)
The state proceedings provide an adequate opportunity to
raise federal questions.” Commc’ns Telesys. Int’l v. Cal. Pub.
Util. Comm’n, 196 F.3d 1011, 1015 (9th Cir. 1999). The par-
ties do not dispute the district court’s determination that
Younger applies to Kay’s claims. Nor do they disagree that
“[w]hen damages are at issue, and comity dictates, courts
should defer” by staying, rather than dismissing, under Youn-
ger. Gilbertson v. Albright, 381 F.3d 965, 982 (9th Cir. 2004)
(en banc). We agree that the district court should have stayed
the claims, but conclude that the dismissed claims are now
barred as a result of the state proceedings that precipitated the
district court’s abstention.
[1] “[A] federal court must give to a state-court judgment
the same preclusive effect as would be given that judgment
under the law of the State in which the judgment was ren-
dered.” Migra v. Warren City Sch. Dist. Bd. of Educ., 465
U.S. 75, 81 (1984). Thus, to determine the preclusive effect
4
The three claims are: (1) that the conditional use permit procedures
violate the First Amendment; (2) for violation of California constitutional
guarantees of free expression, due process, and equal protection; and (3)
that the City’s antenna regulations violate the First Amendment.
KAY v. CITY OF RANCHO PALOS VERDES 12909
of the California state court decision, we apply California law.
“The application of claim preclusion in California focuses on
three questions: (1) was the previous adjudication on the mer-
its, (2) was it final, and (3) does the current dispute involve
the same ‘claim’ or ‘cause of action’?” Robi v. Five Platters,
Inc., 838 F.2d 318, 324 (9th Cir. 1988) (citing Slater v. Black-
wood, 15 Cal. 3d 791, 795 (1975)).
[2] In City of Rancho Palos Verdes v. Kay, No. B157393,
2003 WL 23025571 (Cal. Ct. App. Dec. 30, 2003), the Cali-
fornia Court of Appeal squarely addressed the merits of the
three claims dismissed by the district court.5 It held that nei-
ther the City’s conditional use permit rules nor its antenna
ordinance runs afoul of the First Amendment or of the Cali-
fornia Constitution. Id. at *7-*8. The decision is also final.
“Unlike the federal rule and that of several states, in Califor-
nia the rule is that the finality required to invoke the preclu-
sive bar of res judicata is not achieved until an appeal from
the trial court judgment has been exhausted or the time to
appeal has expired.” Franklin & Franklin v. 7-Eleven Owners
for Fair Franchising, 85 Cal. App. 4th 1168, 1174 (Ct. App.
2000) (citation omitted). The California Court of Appeal
issued the remittitur in Kay’s case on March 4, 2004. The
issuance of the remittitur indicates that the appellate process,
including a potential petition for review to the California
Supreme Court has been exhausted—and thus that the deci-
sion has become final. See Rare Coin Galleries, Inc. v. A-
Mark Coin Co., 202 Cal. App. 3d 330, 335-36 (Ct. App.
1988) (discussing remittitur in the context of tolling the stat-
ute of limitations).
The first two requirements for claim preclusion are clearly
satisfied, leaving the third and final question: whether the
state case involved the same claim or cause of action. In this
vein, “California has consistently applied the ‘primary rights’
5
Although the Court of Appeal’s decision is unpublished, it may be
cited and relied on for claim preclusion purposes. Cal. R. Ct. 8.1115(b)(1).
12910 KAY v. CITY OF RANCHO PALOS VERDES
theory, under which the invasion of one primary right gives
rise to a single cause of action. As we recently observed, Cali-
fornia’s ‘primary rights’ theory does not mean that different
causes of action are involved just because relief may be
obtained under . . . either of two legal theories.” Robi, 838
F.2d at 324 (citations and quotation omitted). “Res judicata
[claim preclusion] prevents litigation of all grounds for, or
defenses to, recovery that were previously available to the
parties, regardless of whether they were asserted or deter-
mined in the prior proceeding.” Id. (quoting State Bd. of
Equalization v. Superior Court, 39 Cal. 3d 633, 641 (1985))
(emphasis and alteration in original).
[3] The primary right at issue here is Kay’s right to be free
of unconstitutional restrictions imposed on his free speech by
the City through its regulation of antennae and the conditional
use permit process. In rejecting Kay’s claims, the California
Court of Appeal addressed various theories by which the City
might be liable for violation of Kay’s First Amendment and
California Constitutional rights. Kay alleged violations of
those same rights in his federal complaint, thus implicating
the same primary right. To the extent that the dismissed
causes of action here could be creatively construed to be dif-
ferent from those that were addressed in Kay’s state action,
the claims could and should have been raised by Kay in that
action. Thus, we hold that Kay is now barred from asserting
his three dismissed claims before the federal courts.
2. Damages under California Law
[4] Kay submits that the district court erred by holding that
he was not entitled to compensatory damages under California
law. The district court granted Kay only injunctive relief in
the form of a peremptory mandate commanding the City to
“adopt a new resolution allowing Kay to use his five mast
antenna structure for commercial purposes, subject to reason-
able conditions.” Writs of mandate are used under California
law “for the purpose of inquiring into the validity of any final
KAY v. CITY OF RANCHO PALOS VERDES 12911
administrative order. . .” CAL. CODE CIV. PROC. § 1094.5(a).
Here, the district court reviewed the final administrative order
in response to Kay’s conditional use permit application, and
“enter[ed] judgment . . . commanding [the City] to set aside
the order or decision.” Id. § 1094.5(f). Under a companion
provision of California law, “[i]f judgment be given for the
applicant, the applicant may recover the damages which the
applicant has sustained . . . and a peremptory mandate must
also be awarded without delay.” Id. section 1095 (emphasis
added).
[5] The availability of damages under section 1095, how-
ever, is limited by California Government Code sections
818.4 and 821.2. State v. Superior Court, 12 Cal. 3d 237, 246
(1974). Section 818.4 provides that “[a] public entity is not
liable for an injury caused by the . . . denial . . . of . . . any
permit . . . or similar authorization where the public entity or
an employee of the public entity is authorized by enactment
to determine whether or not such authorization should be
issued, denied, suspended, or revoked.” Section 821.2 is a
corollary that immunizes public employees for their roles in
the discretionary permit decisions governed by section 818.4.
“The immunity applies only to discretionary activities.” Rich-
ards v. Dep’t of Alcoholic Beverages Control, 139 Cal. App.
4th 304, 318 (Ct. App. 2006). The decision whether to issue
a conditional use permit is “discretionary by definition.”
Breakzone Billiards v. City of Torrance, 81 Cal. App. 4th
1205, 1224 (Ct. App. 2000) (citation omitted).
Kay claims that because he sought only to change the fre-
quency from amateur to commercial use on the antennae, the
City had no discretion to deny the CUP.6 This assertion is
premised on the TCA’s preclusion of municipalities from “re-
gulat[ing] the placement, construction, and modification of
6
Although the City eventually granted the CUP as to two of the anten-
nae, we construe the City’s decision as a denial of the permit as to the
three other antennae.
12912 KAY v. CITY OF RANCHO PALOS VERDES
personal wireless service facilities on the basis of the environ-
mental effects of radio frequency emissions to the extent that
such facilities comply with the Commission’s regulations
concerning such emissions.” 47 U.S.C. § 332(c)(7)(B)(iv).
Because the City had already approved his antennae for non-
commercial use, and the switch to commercial use entailed
only a change in radio frequency, Kay argues the City lacked
discretion because it could not consistently with the TCA ever
deny the CUP even in part.
Kay’s argument is largely based on Thompson v. City of
Lake Elsinore, 18 Cal. App. 4th 49 (Ct. App. 1993). There,
the plaintiff renovated a building in compliance “with all the
appropriate building codes, regulations and requirements,”
and received a “Final Inspection Okay.” Id. at 53. Lake Elsi-
nore nevertheless withheld the issuance of a certificate of
occupancy for the building, allegedly in an attempt to cause
the plaintiff to comply with city demands related to other
properties he owned. Id. The Thompson court explained that
because Lake Elsinore had already exercised its discretion
during the building permit process, it had no discretion to
refuse to perform the purely ministerial duty of issuing the
occupancy permit. Id. at 58.
Thompson is inapposite. There, Lake Elsinore had already
found that the building at issue complied with all regulations,
and was thus required by law to issue a certificate of occu-
pancy. Id. at 56 (citing Uniform Building Code § 307). For
that reason, the city lacked discretion to deny the certificate,
and damages were available. Here, the City was considering
an application for a permit to use a home in a residential
neighborhood to engage in commercial operations. As the
contentious transcripts from the City hearings demonstrate,
decisions like this are freighted with concerns from neighbors
and City officials intent on maintaining the residential charac-
ter of the neighborhood. See Breakzone Billiards, 81 Cal.
App. 4th at 1224 (“In considering applications for such per-
mits, a city is obligated to examine permit applications on an
KAY v. CITY OF RANCHO PALOS VERDES 12913
individual basis, applying sound principles of planning and
zoning administration in a fair manner.”). The conditions
attached to the City’s partial approval of the CUP reflect these
sound principles. For example, the City imposed limits on the
times for maintenance work, number of vehicles present at the
property, noise levels, and yard maintenance.
Kay also relies on City of Rancho Palos Verdes v. Abrams,
101 Cal. App. 4th 367 (Ct. App. 2002), to support his argu-
ment that the City was compelled to grant him a CUP. There,
the Court of Appeal struck down an injunction against
Abrams using a previously-approved amateur antenna for
commercial purposes. The Court of Appeal reasoned that “the
only change in Abrams’s operation would be the commercial
use of frequencies allocated and assigned by the FCC.
Because the trial court’s injunction prohibits that use, it is pre-
empted by [the TCA].” Id. at 375. While we agree with the
California Court of Appeal that regulation based solely on the
transmission frequency is verboten, we do not read that pre-
emption as giving amateur broadcasters immunity from local
permit requirements if they decide to switch to commercial
broadcasting on existing antennae. As discussed in Breakzone
Billiards and reflected in the use permit conditions above,
there are numerous legitimate local concerns implicated by a
commercial operation that do not attach to amateur use, and
which have nothing to do with “the environmental effects of
radio frequency emissions.” 47 U.S.C. § 332(c)(7)(B)(iv).
There are situations in which a municipality may deny, for
reasons related to the impact of a commercial operation on the
neighborhood, a permit for an amateur broadcaster to operate
commercially. Cf. Tenn. ex rel. Wireless Income Props., LLC
v. City of Chattanooga, 403 F.3d 392, 398 (6th Cir. 2005)
(“The TCA does not preempt all authority of state or local
governments over the regulation of wireless towers.”); Nat’l
Tower, LLC v. Plainville Zoning Bd. of Appeals, 297 F.3d 14,
19 (1st Cir. 2002) (“The [TCA] attempts, subject to five limi-
tations, to preserve state and local authority over the place-
ment and construction of facilities.”).
12914 KAY v. CITY OF RANCHO PALOS VERDES
[6] While the record suggests that the denial of Kay’s per-
mit may have been driven at least in part by animus on the
part of City officials, the record also shows that the City was
exercising its discretion as part of its planning and administra-
tive duties. For that reason, we hold that the City’s decision
to deny Kay’s CUP was discretionary, and that his remedies
under California law are limited to the peremptory writ
already granted by the district court.
3. Damages under the Telecommunications Act
Nor did the district court err by holding that Kay was not
entitled to compensatory damages under the TCA. Congress
explicitly created, and Kay sued under, a private right of
action in the TCA:
Any person adversely affected by any final action or
failure to act by a State or local government or any
instrumentality thereof that is inconsistent with this
subparagraph may, within 30 days after such action
or failure to act, commence an action in any court of
competent jurisdiction. The court shall hear and
decide such action on an expedited basis. Any per-
son adversely affected by an act or failure to act by
a State or local government or any instrumentality
thereof that is inconsistent with clause (iv) may peti-
tion the Commission for relief.
47 U.S.C. § 332(c)(7)(B)(v). The district court held in Kay’s
favor on his TCA claim, but did not explicitly grant him a
remedy under the TCA.7 Section 332 of the TCA does not
7
Both Kay’s TCA and California law claims involve an identical sub-
stantial evidence review of the City’s decision. See MetroPCS, Inc. v. City
and County of San Francisco, 400 F.3d 715, 723 (9th Cir. 2005); Topanga
Ass’n for a Scenic Cmty. v. County of Los Angeles, 11 Cal. 3d 506, 514-15
(1974). The district court found for Kay on both causes of action, but the
sole remedy granted was the state law remedy of a peremptory writ of
mandate under California Code of Civil Procedure section 1095.
KAY v. CITY OF RANCHO PALOS VERDES 12915
specify the remedies available to successful litigants, and no
circuit court of appeals has squarely addressed the availability
of compensatory damages as a remedy. The Supreme Court,
however, has provided some guidance, both in the context of
attempted use of the Civil Rights Act of 1871, 42 U.S.C.
§ 1983 to enforce § 332 of the TCA, and more generally in
the context of statutes that are silent on available remedies.
A. Section 1983
[7] The Supreme Court recently held that “the TCA — by
providing a judicial remedy different from § 1983 in
§ 332(c)(7) itself — precluded resort to § 1983,” to enforce
violations of § 332. City of Rancho Palos Verdes v. Abrams,
544 U.S. 113, 127 (2005). The Court of Appeals’ decision had
reached the opposite conclusion, holding that money damages
and attorney’s fees were available for TCA violations
enforced through a § 1983 action. Id. at 119 (discussing
Abrams v. City of Rancho Palos Verdes, 354 F.3d 1094 (9th
Cir. 2004)). Writing for the Court, Justice Scalia briefly noted
portions of § 332 that create a thirty-day window for appeals
and the requirement of expedited judicial review as examples
that the “TCA . . . adds no remedies to those available under
§ 1983, and limits relief in ways that § 1983 does not.” Id. at
122. “The remedies available [under § 332], moreover, per-
haps do not include compensatory damages (the lower courts
are seemingly in disagreement on this point), and certainly do
not include attorney’s fees and costs.” Id. at 122-23 (footnotes
omitted).8 The Court noted that “[l]iability for attorney’s fees
would have a particularly severe impact in the § 332(c)(7)
8
The Court cited PrimeCo Personal Communications, Ltd. v. City of
Mequon, 352 F.3d 1147 (7th Cir. 2003), for the proposition that some
courts have held that damages were available. However, PrimeCo merely
recognized, as the Supreme Court later did in Abrams, that the TCA cre-
ated an enforcement mechanism in § 332 and that 42 U.S.C. § 1983 was
not a proper enforcement vehicle. PrimeCo, 352 F.3d at 1152-53. At most,
PrimeCo assumed without deciding that damages would be available in a
direct § 332 cause of action. Id.
12916 KAY v. CITY OF RANCHO PALOS VERDES
context, making local governments liable for the (often sub-
stantial) legal expenses of large commercial interests for the
misapplication of a complex and novel statutory scheme.” Id.
at 123 (citing Nextel Partners Inc. v. Kingston Township, 286
F.3d 687, 695 (3d Cir. 2002) (“TCA plaintiffs are often large
corporations or affiliated entities, whereas TCA defendants
are often small, rural municipalities.”). Justice Breyer, joined
by Justices O’Connor, Souter, and Ginsburg concurred, and
pointed out that the quasi-administrative nature of review
under § 332 meant that “to permit § 1983 actions . . . would
undermine the compromise — between purely federal and
purely local . . . policies — that the statute reflects.” Id. at
128-29. Finally, Justice Stevens, writing alone, concurred and
expressed the view that “there is not a shred of evidence in the
legislative history suggesting that . . . Congress intended
plaintiffs to be able to recover damages and attorney’s fees.”
Id. at 130. Justice Stevens further stressed “the fact that
awards of damages and attorney’s fees could have potentially
disastrous consequences for the likely defendants in most pri-
vate actions under the TCA.” Id. at 132.
While the Supreme Court has not ruled on the availability
of damages in suits directly under § 332, the concerns
expressed in Abrams about the structure and nature of the
TCA and Congress’s intent in passing the law pertain as much
to suits directly under § 332 as they do to suits seeking reme-
dies via § 1983. With these concerns in mind, we examine the
availability of compensatory damages.
B. TCA Remedies
“[I]t is . . . well settled that where legal rights have been
invaded, and a federal statute provides for a general right to
sue for such invasion, federal courts may use any available
remedy to make good the wrong done.” Bell v. Hood, 327
U.S. 678, 684 (1946). The Court has subsequently explained
that “the federal courts have the power to award any appropri-
ate relief in a cognizable cause of action brought pursuant to
KAY v. CITY OF RANCHO PALOS VERDES 12917
a federal statute,” Franklin v. Gwinnett County Pub. Schs.,
503 U.S. 60, 71 (1992), and that “denial of a remedy [is] the
exception rather than the rule,” id. At the same time, it is criti-
cal that when deciding which remedies are appropriate in a
given situation, we attempt to “infer how . . . Congress would
have addressed the issue” if it had done so at the time the law
was passed. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S.
274, 285 (1998) (quoting Cent. Bank of Denver, N.A. v. First
Interstate Bank of Denver, N.A., 511 U.S. 164, 178 (1994)).
In Franklin, the Court examined a district court’s dismissal of
a Title IX damages action for failure to state a claim, 503 U.S.
at 64, and remanded after holding that a damages remedy was
appropriate and consistent with the intent of Title IX, id. at
71-76. The Court narrowed this broad rule in Gebser, again
examining the purpose and intent behind Title IX, and limit-
ing the circumstances under which damages were an appropri-
ate remedy. 524 U.S. at 292-93. To determine whether
damages are appropriate here, we examine Congress’s intent
and the structure of § 332.
1. Stated Intent
[8] As in Franklin, we first examine whether Congress
intended to limit the remedies available for violations of
§ 332. 503 U.S. at 71. We have no statement of congressional
intent on the question of remedies in the legislative history.
See Abrams, 544 U.S. at 130 (Stevens, J., concurring). How-
ever, unlike the implied Title IX cause of action in Franklin
and Gebser, here we have some legislative history discussing
the remedial structure created by the statute. Section
332(c)(7), captioned “[p]reservation of local zoning authori-
ty,” was intended to minimize federal interference with State
and local land use decisions. See H.R. Conf. Rep. No. 104-
458, at 207-08 (1996) (hereinafter “Conference Report”)
(“The conference agreement . . . preserves the authority of
State and local governments over zoning and land use matters
except in the limited circumstances set forth in the conference
agreement.”).
12918 KAY v. CITY OF RANCHO PALOS VERDES
[9] Because TCA plaintiffs are often large telecommunica-
tions companies, it is likely that the damages attributed by
them to adverse zoning or permitting decisions will be sub-
stantial, particularly from the viewpoint of a municipality. See
Abrams, 544 U.S. at 123. This potential for large damages
claims, even if they are not ultimately awarded, suggests that
Congress did not intend to create a damages remedy. Just like
the attorney’s fees addressed by the Court in Abrams, there is
a real danger here that a damages remedy “would have a par-
ticularly severe impact in the § 332(c)(7) context, making
local governments liable for the (often substantial) [damages]
of large commercial interests for the misapplication of a com-
plex and novel statutory scheme.” Id. The specter of large
damages claims, and the expensive litigation recognized in
Abrams, could easily intimidate local authorities into effec-
tively abdicating their zoning and permitting powers when
confronted with an application from a wireless service provider.9
Nor do we find that the requirement that courts “hear and
decide such action on an expedited basis,” 47 U.S.C.
§ 332(c)(7)(B)(v), cuts against this view, as the Nextel Part-
ners court mused in passing. 286 F.3d at 695 (“For defen-
dants, assuming for the sake of argument that damages may
be recovered under the TCA itself, quick review may dimin-
ish the amount that may be recovered.”) (footnote omitted). In
the Central District of California, where Kay filed his action,
the median time from the filing of a complaint to disposition
of the case after a trial is 23.9 months. Administrative Office
of the United States Courts, Federal Judicial Caseload Statis-
tics tbl. C-5 (March 31, 2006). Partially due to the intervening
Abrams decision, the City took almost a year to decide Kay’s
permit application, and the district court took another two
years to hold a bench trial and rule on the merits of the permit
issue. This kind of schedule for the resolution of a civil case,
9
As discussed in the context of Kay’s state damages claim, local zoning
and permitting authorities are normally immune from damages under state
law.
KAY v. CITY OF RANCHO PALOS VERDES 12919
even on an expedited basis, is typical. It is unrealistic to
expect any case involving administrative review to wend its
way through our district courts, let alone the appellate pro-
cess, in a manner that is speedy enough to meaningfully stave
off the accumulation of damages.
[10] Congress sought to preserve local authority while also
providing a federal forum for the review of certain zoning and
permitting decisions without further need to exhaust “any
independent State court remedy otherwise required.” Confer-
ence Report at 209. A damages remedy does not further that
purpose, and could potentially frustrate it.
2. Administrative Nature of Review
Several features of section § 332(c)(7) are borrowed from
state zoning and administrative review laws. Zoning and per-
mitting decisions are made by municipalities like the City or
other regional authorities. Every state provides for review of
such agency decisions through an appeal or writ of certiorari
to the state courts, and most provide a short time frame in
which to file an appeal; thirty-two of those states have a
thirty-day appeal period.10 The TCA adopts a similar thirty-
day appeal period. 47 U.S.C. § 332(c)(7)(B)(v). The language
used by Congress closely mirrors many of those same state
laws, allowing “[a]ny person adversely affected by any final
action or failure to act” to seek aid from the courts. Id. The
TCA also requires that zoning decisions by state and local
authorities be “in writing and supported by substantial evi-
dence contained in a written record.” 47 U.S.C.
§ 332(c)(7)(B)(iii). Congress explained that it used this phrase
to reflect “the traditional standard used for judicial review of
agency actions.” Conference Report at 208. Most states also
apply a similarly deferential standard of review to appeals
from local zoning and permitting agency decisions. See
10
Thirty days is the mode, but some states give as few as ten days or as
many as ninety days to appeal. See Appendix A.
12920 KAY v. CITY OF RANCHO PALOS VERDES
Appendix B. Most states also have statutory schemes similar
to that in California, which immunize state zoning and permit-
ting agencies from damages when their decisions are over-
turned on appeal. See Appendix C.
Congress’s creation of a quasi-administrative review pro-
cess for zoning and permitting decisions in the TCA that mir-
rors that of the states suggests that the appropriate remedies
under that review process should also mirror those available
under state law.11
* * *
[11] The legislative history, structure, and nature of the
rights and the review process provided in § 332(c)(7) demon-
strate the congressional intent to create a federal administra-
tive review process analogous to state zoning reviews, and not
a more general enforcement mechanism. Therefore, we hold
that damages are not an appropriate remedy for violations of
§ 332.12
11
The federal Administrative Procedure Act similarly limits the review
of federal agency actions to those that do not involve claims of monetary
damages. See 5 U.S.C. § 702.
12
This holding is consistent with the holdings of our sister circuits that,
even though they do not address the question of damages, recognize the
availability of injunctive relief for violations of § 332. See, e.g., Wireless
Income Props., 403 F.3d at 399 (“[W]e have repeatedly concluded that
where the defendant denied a permit application . . . the proper remedy is
injunctive relief compelling the defendant to issue the requested permit.”);
Nat’l Tower, 297 F.3d at 21-22 (“Instead, in the majority of cases the
proper remedy for a zoning board decision that violates the Act will be an
order . . . instructing the board to authorize construction.”) (citations omit-
ted); Preferred Sites, LLC v. Troup County, 296 F.3d 1210, 1222 (11th
Cir. 2002) (“We conclude an injunction ordering issuance of a permit is
an appropriate remedy for a violation of [the TCA].”); Cellular Tel. Co.
v. Town of Oyster Bay, 166 F.3d 490, 497 (2d Cir. 1999) (noting that
injunctive relief fits with the TCA’s stated goal of expediting the resolu-
tion of disputes).
KAY v. CITY OF RANCHO PALOS VERDES 12921
III. CONCLUSION
We hold that Kay’s three dismissed claims are barred by
claim preclusion, that the City is immune from damages under
California law, and that § 332 of the TCA does not provide
a damages remedy.13
AFFIRMED.
13
Because we affirm the district court, we do not address Kay’s request
for assignment to a different judge on remand.
12922 KAY v. CITY OF RANCHO PALOS VERDES
APPENDIX14
A.
Ala. Code § 11-52-81 (15 days); Alaska Stat. § 29.40.060
(time to appeal set by assembly); Ariz. Rev. Stat. Ann. § 12-
904 (35 days); Ark. Code Ann. § 14-56-425 (30 days); Cal.
Gov’t Code § 65009(c)(1) (90 days); Colo. R. Civ. P. 106(b)
(30 days); Conn. Gen. Stat. § 8-8(b) (15 days); Del. Code
Ann. tit. 38 § 328(a) (30 days); Fla. Stat. § 120.68 (30 days);
Ga. Code § 5-3-20 (30 days); Haw. Rev. Stat. § 91-14 (30
days); Idaho Code Ann. § 65-6519(4) (28 days); 735 Ill.
Comp. Stat. 5/3-103 (35 days); Ind. Code § 36-7-4-1003 (30
days); Iowa Code § 335.18 (30 days); Kan. Stat. Ann. § 19-
223 (30 days); Ky. Rev. Stat. Ann. § 100.347 (30 days); La.
Rev. Stat. Ann. § 33:4727 (30 days); Me. Rev. Stat. Ann. tit.
5 § 11002 (30 days); Md. Cir. Ct. R. 7-203 (30 days); Mass.
Gen. Laws ch. 40A, § 17 (20 days); Mich. Comp. Laws
§ 125.3606 (30 days); Minn. Stat. § 394.27 (30 days); Miss.
Code § 11-51-75 (10 days); Mo. Rev. Stat. § 89.110 (30
days); Mont. Code Ann. § 76-2-327 (30 days); Neb. Rev. Stat.
§ 14-413 (30 days); Nev. Rev. Stat. § 14-413 (25 days); N.H.
Rev. Stat. Ann. § 677:4 (30 days); N.J. Ct. R. 4:69-6 (30
days); N.M. Stat. § 39-3-1.1 (30 days); N.Y. Town Law
§ 267-c (30 days); N.C. Gen. Stat. § 160A-388(e2) (30 days);
N.D. Cent. Code § 28-34-01 (30 days); Ohio Rev. Code Ann.
§ 2505.07 (30 days); Okla. Stat. tit. 11, § 44-110 (time to
appeal to be determined by local ordinance); Or. Rev. Stat.
§ 197.850 (21 days); 53 Pa. Cons. Stat. § 11002-A (30 days);
R.I. Gen. Laws § 45-24-69 (20 days); S.C. Code Ann. § 6-29-
820 (30 days); S.D. Codified Laws § 11-2-61 (30 days); Tenn.
Code Ann. § 27-9-102 (60 days); Tex. Loc. Gov’t Code Ann.
§ 211.011 (10 days); Utah Code Ann. § 10-9a-801 (30 days);
Vt. R. Env’t Ct. Proc. R. 5 (30 days); Va. Code Ann. § 15.2-
2314 (30 days); Wash. Rev. Code § 36.70C.040 (21 days); W.
14
All code sections listed in this appendix are current as of the date of
filing of this opinion.
KAY v. CITY OF RANCHO PALOS VERDES 12923
Va. Code § 8A 9-1 (30 days); Wis. Stat. § 59.694 (30 days);
Wyo. R. App. P. 12.04 (30 days).
B.
Ala. Code § 11-52-81 (de novo); South Anchorage Concerned
Coalition, Inc. v. Coffey, 862 P.2d 168, 173 (Alaska 1993)
(substantial evidence); Murphy v. Town of Chino Valley, 789
P.2d 1072, 1077 (Ariz. Ct. App.1989) (substantial evidence);
Ark. Code Ann. § 14-56-425 (de novo); Topanga Ass’n for a
Scenic Cmty v. County of Los Angeles, 11 Cal. 3d 506, 514-15
(1974) (substantial evidence); Colo. R. Civ. P. 106(b) (abuse
of discretion); Bloom v. Zoning Bd. of Appeals, 658 A.2d 559,
563 (Conn. 1995) (abuse of discretion); Searles v. Darling, 83
A.2d 96, 99 (Del. 1951) (substantial evidence); Fla. Stat.
§ 120.68 (substantial evidence); Jackson v. Spalding County,
265 Ga. 792, 462 S.E.2d 361, 364 (1995) (abuse of discre-
tion); Haw. Rev. Stat. § 91-14 (abuse of discretion); Sanders
Orchard v. Gem County ex rel. Bd. of County Comm’rs, 52
P.3d 840, 843 (Idaho 2002) (substantial evidence or abuse of
discretion); Menning v. Dep’t of Registration & Educ., 153
N.E.2d 52, 55 (Ill. 1958) (substantial evidence); Carlton v.
Bd. of Zoning Appeals, 245 N.E.2d 337, 343-44 (Ind. 1969)
(substantial evidence or abuse of discretion); Martin Marietta
Materials, Inc. v. Dallas County, 675 N.W.2d 544, 551 (Iowa
2004) (substantial evidence); Combined Inv. Co. v. Bd. of
County Comm’rs, 605 P.2d 533, 543 (Kan. 1980) (substantial
evidence); Am. Beauty Homes Corp. v. Louisville & Jefferson
County Planning and Zoning Comm’n, 379 S.W.2d 450, 456
(Ky.1964) (substantial evidence); Coliseum Square Ass’n,
Inc. v. Bd. of Zoning Adjustments, 374 So. 2d 177, 179 (La. Ct.
App. 1979) (abuse of discretion); Lippoth v. Zoning Bd. of
Appeals, 311 A.2d 552, 557 (Me. 1973) (reasonableness);
Stansbury v. Jones, 812 A.2d 312, 318-19 (Md. 2002) (sub-
stantial evidence); Gulf Oil Corp. v. Bd. of Appeals, 244
N.E.2d 311, 313 (Mass. 1969) (unreasonable, whimsical,
capricious, or arbitrary); Mich. Comp. Laws § 125.3606 (sub-
stantial evidence); Honn v. City of Coon Rapids, 313 N.W.2d
12924 KAY v. CITY OF RANCHO PALOS VERDES
409, 414 (Minn. 1981) (substantial evidence); Barnes v. Bd.
of Supervisors, 553 So. 2d 508, 511 (Miss. 1989) (substantial
evidence); State ex rel. Teefey v. Bd. of Zoning Adjustment, 24
S.W.3d 681, 684 (Mo. 2000) (en banc) (substantial evidence);
Sutey Oil Co. v. Anaconda-Deer Lodge County Planning Bd.,
959 P.2d 496, 499 (Mont. 1998) (abuse of discretion); Strat-
bucker Children’s Trust v. Zoning Bd. of Appeals, 497
N.W.2d 671, 674 (Neb. 1993) (arbitrary, unreasonable, or
clearly wrong); Nevada Contractors v. Washoe County, 792
P.2d 31, 33 (Nev. 1990) (substantial evidence); Harrington v.
Town of Warner, 872 A.2d 990, 994(N.H. 2005) (reasonable-
ness); New Brunswick Cellular Tel. Co. v. Township of Edi-
son Zoning Bd. of Adjustment, 693 A.2d 180, 184 (N.J. Sup.
Ct. Law Div. 1997) (substantial evidence); N.M. Stat. § 39-3-
1.1 (substantial evidence or arbitrary or capricious); Doyle v.
Amster, 594 N.E.2d 911, 913 (N.Y. 1992) (substantial evi-
dence); Butler v. City Council of City of Clinton, 584 S.E.2d
103, 105 (N.C. App. 2003) (substantial evidence); City of
Fargo v. Ness, 529 N.W.2d 572, 576 (N.D. 1995) (arbitrary,
capricious, or unreasonable); Ohio Rev. Code Ann. § 2506.04
(“arbitrary, capricious, unreasonable, or unsupported by the
preponderance of substantial, reliable, and probative evidence
on the whole record”); Wetherell v. Douglas County, 146 P.3d
343, 344 (Or. Ct. App. 2006) (substantial evidence); Valley
View Civic Ass’n v. Zoning Bd. of Adjustment, 462 A.2d 637,
639-40 (Pa. 1983) (substantial evidence); Apostolou v.
Genovesi, 388 A.2d 821, 824 (R.I. 1978) (substantial evi-
dence); Peterson Outdoor Advert. v. City of Myrtle Beach,
489 S.E.2d 630, 632-33 (S.C. 1997) (substantial evidence);
Even v. City of Parker, 597 N.W.2d 670, 673 (S.D. 1999)
(substantial evidence); Estate of Street v. State Bd. of Equal-
ization, 812 S.W.2d 583, 585-86 (Tenn. Ct. App. 1990) (sub-
stantial evidence); Pearce v. City of Round Rock, 78 S.W.3d
642, 646 (Tex. App. 2002) (abuse of discretion); Rogers v.
West Valley City, 142 P.3d 554, 556 (Utah Ct. App. 2006)
(substantial evidence); In re S-S Corporation/Rooney Hous.
Devs., 896 A.2d 67, 70 (Vt. 2006); Foster v. Geller, 449
KAY v. CITY OF RANCHO PALOS VERDES 12925
S.E.2d 802, 804-05 (Va. 1994) (plainly wrong); Cingular
Wireless, LLC v. Thurston County, 129 P.3d 300, 305-06
(Wash. Ct. App. 2006) (substantial evidence); Maplewood
Estates Homeowners Ass’n v. Putnam County Planning
Comm’n, 629 S.E.2d 778, 782 (W. Va. 2006) (substantial evi-
dence); Sills v. Walworth County Land Mgmt. Comm., 648
N.W.2d 878, 883 (Wis. Ct. App. 2002) (substantial evidence);
Donaghy v. Bd. of Adjustment of City of Green River, 55 P.3d
707, 710 (Wyo. 2002) (substantial evidence).
C.
Alaska Stat. § 09.65.070; Ark. Code Ann. § 21-9-301 (limit-
ing liability to scope of insurance coverage); Cal. Gov’t Code
§ 818.4; Colo. Rev. Stat. § 24-20-106; Conn. Gen. Stat. § 52-
557n; Del. Code Ann. tit. 10 § 4011; Akin v. City of Miami,
65 So. 2d 54, 55 (Fla. 1953); Ga. Code § 36-33-1; Haw. Rev.
Stat. § 662-15; Idaho Code Ann. § 6-904B; 745 Ill. Comp.
Stat. 10/2-104; Ind. Code § 34-13-3-3; Kan. Stat. Ann. § 75-
6104; Ky. Rev. Stat. Ann. § 65.2003; La. Rev. Stat. Ann.
§ 9:2798.1; Me. Rev. Stat. Ann. tit. 14 § 8104-B; Mass. Gen.
Laws ch. 258, § 10; Mich. Comp. Laws § 691.1407; Minn.
Stat. § 466.03; Miss. Code § 11-46-3; Neb. Rev. Stat. § 13-
910; Nev. Rev. Stat. § 278.0233 (allowing damages in limited
circumstances); N.J. Stat. Ann. § 59:2-5; N.M. Stat. § 41-4-4;
Rottkamp v. Young, 249 N.Y.S.2d 330 (N.Y. App. Div. 1964),
aff’d, 205 N.E.2d 866 (N.Y. 1965); N.D. Cent. Code § 32-
12.1-03; Okla. Stat. tit. 51, § 155; Or. Rev. Stat. § 30.265; 42
Pa. Cons. Stat. §§ 8541, 8542; R.I. Gen. Laws § 9-31-1 (limit-
ing, but not totally foreclosing damages); S.C. Code. Ann.
§ 15-78-60; S.D. Codified Laws §§ 21-32A-1, 21-32A-3 (lim-
iting liability to scope of insurance coverage); Tenn. Code
Ann. §§ 29-20-201, 29-20-205; Utah Code Ann. § 63-30d-
301; Wash. Rev. Code § 64.40.020 (allowing damages in lim-
ited circumstances); W. Va. Code § 29-12A-5; Wis. Stat.
§ 893.80; Wyo. Stat. Ann. § 1-39-104.