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CAWLEY v. CITY OF PORT JERVIS

December 12, 1990

KEITH CAWLEY AND KAREN CAWLEY, PLAINTIFFS,
v.
CITY OF PORT JERVIS, DEFENDANT.



The opinion of the court was delivered by: Robert L. Carter, District Judge.

OPINION

In 1986, the Federal Communications Commission promulgated a regulation (the "FCC regulation")*fn1 designed to relieve users of satellite television receive-only dish antennas ("TVRO antennas") from burdensome local regulatory requirements. See Preemption of Local Zoning and Other Regulation of Receive Only Satellite Earth Stations, 51 Fed.Reg. 5519 (F.C.C. Feb. 7, 1986) (report and order) (hereinafter "FCC Report"). In this case, the court is called upon to decide whether Port Jervis City Zoning Ordinance § 158-69 (the "ordinance"),*fn2 which regulates the installation of TVRO antennas, is preempted by the FCC regulation.

As stated in the documents submitted by the plaintiffs, the facts of the case are as follows. Plaintiffs Keith and Karen Cawley are residents and homeowners in Port Jervis, New York. On July 9, 1990, plaintiffs applied to defendant City of Port Jervis for a building permit to install a TVRO antenna on the roof or in the front yard of their home, which at the time were the only locations on their property that would provide a clear line of sight from the antenna to the broadcast satellites. The following day, Wayne E. Kidney, a building official with the City of Port Jervis Building Department, sent a letter to plaintiffs denying them the building permit on the grounds that installation on the roof or in the front yard was forbidden by subsections E and F of the ordinance. Shortly thereafter, plaintiffs removed a tree from their property to allow the installation of a TVRO antenna in their back yard. At plaintiffs' request, Kidney staked out the area in their back yard that satisfied the minimum setback requirement. However, a survey by Electronic Control Connection, Inc., which was hired by the plaintiffs to install their antenna, revealed that the permitted locations were unacceptable, because a neighbor's tree would block access to six satellites.

Port Jervis provides a variance procedure whereby an exemption from the zoning requirements may be obtained from the City of Port Jervis Zoning Board of Appeal (the "ZBA"). Each applicant for a variance must pay an application fee of $100.00. In addition, the applicant must submit twelve copies of a survey map or site plan, as well as two copies each of a completed application form, a letter briefly explaining the project, a short-form environmental assessment form, and proof that the applicants own the property or have written permission from the owner. The procedure requires three meetings of the ZBA and takes a minimum of two months. Applicants must bear their own costs even if their applications are successful. The cost of applying for a building permit through the variance procedure would exceed the cost of plaintiffs' antenna, and would not guarantee that a permit would be obtained. For these reasons, plaintiffs did not avail themselves of the variance procedure.

On July 17, 1990, plaintiffs proceeded to install a TVRO antenna in their back yard, four feet from the adjacent lot, in violation of the minimum setback requirements and without obtaining a building permit. They did not place any foliage around the antenna. Two days later, Kidney issued a violation notice to the plaintiffs on the grounds that the satellite dish was installed without a building permit, was not properly screened by foliage, and was positioned too close to the edge of the lot, in violation of subsections B, C, and E of the ordinance.

The signals received by TVRO antennas are broadcast by seventeen television satellites located in geostationary orbit on the equator, spaced four degrees apart, at an altitude of about 22,300 miles over the eastern Pacific Ocean. If a TVRO antenna in Port Jervis is to receive signals from all seventeen satellites, it must have an unobstructed view from 69 degrees west to 143 degrees west at an elevation above the horizon from 10 degrees to 43 degrees.

The satellites carry approximately ninety television programming services. If the plaintiffs were to locate their antenna within the setback lines, they would lose access to four encrypted*fn3 and twenty unencrypted channels. Beginning in 1992, with the transfer of programs to a new satellite, they would lose access to another sixteen encrypted and four unencrypted channels.

The placement of foliage around the antenna would prevent the plaintiffs from receiving any satellite television signals. Moreover, the cost of the foliage would exceed the cost of the antenna.

Plaintiffs filed this action under 42 U.S.C. § 1983 and 1988, alleging that the ordinance was unconstitutional*fn4 and preempted by the FCC regulation, and seeking declaratory and injunctive relief and attorney's fees. Defendant moved to dismiss the action under Rule 12(b)(6), F.R.Civ.P., on the grounds that the complaint failed to allege that the FCC regulation was applicable. Plaintiffs filed a brief in opposition and a cross-motion for summary judgment, accompanied by affidavits and a statement of undisputed facts as required by Rule 3(g), Local Civil Rules, S. & E.D.N Y

There is no merit to defendant's contention that plaintiffs' complaint is inadequate. Pleadings are to be liberally construed. See Rule 8(f), F.R.Civ.P. The complaint states the underlying facts of the case, alleges that the ordinance prevents the installation of a fully functional antenna, alleges that the cost of the variance procedure could exceed the cost of the antenna, and cites the regulation claimed to be violated. These allegations afford the necessary "short and plain statement" of the plaintiffs' claim. Rule 8(a)(2), F.R.Civ.P. They clearly give the defendant the requisite "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957); see also Dioguardi v. Durning, 139 F.2d 774 (2d Cir. 1944).

When a properly supported motion for summary judgment is made, "an adverse party may not rest upon the mere allegations or denials of [its] pleading, but [its] response . . . must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against [it]." Rule 56(e), F.R.Civ.P. The standard for summary judgment is the same as the standard for a directed verdict, namely, whether "there can be but one reasonable conclusion as to the verdict." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

The local rules of this district impose the additional requirement that "[t]he papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried. All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted in the statement required to be served by the opposing party." Rule 3(g), Local Civil Rules, S. & E.D.N Y

Defendant's response to plaintiffs' motion consists of two letters of counsel, dated October 11 and November 13, 1990, stating that defendant has "not consented or conceded to all of the supposed undisputed facts" included in plaintiffs' Rule 3(g) statement and that defendant opposes the plaintiff's motion for the reasons stated in its motion to dismiss. The motion to dismiss merely states technical objections to the sufficiency of the complaint. Defendant has also filed an answer denying various allegations in the complaint. These submissions are not sufficient to meet the requirements of Rule 56(e) or Local Rule 3(g). Accordingly, plaintiffs are entitled to summary judgment if the evidence that they have presented establishes their claim.

Any person whose rights under FCC regulations have been denied by a local governmental body has a cause of action under 42 U.S.C. § 1983. Van Meter v. Township of Maplewood, 696 F. Supp. 1024, 1027 (D.N.J. 1988); Alsar Technology, Inc. v. Zoning Bd. of Adjustment, 235 N.J.Super. 471, 563 A.2d 83, 91 (Law Div. 1989); see Golden State Transit Corp. v. City of Los Angeles, ___ U.S. ___, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989); Playboy Enterprises, Inc. v. Public Serv. Comm'n, 906 F.2d 25, 31-32 (1st Cir. 1990), cert. denied, ___ U.S. ___, 111 S.Ct. 388, 112 L.Ed.2d 399 (1990).*fn5 Exhaustion of state or local administrative remedies is not required for cases arising under § 1983. Patsy v. Board of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982). Moreover, the variance procedure here is itself challenged as being in violation of the federal requirements, see Mathews v. Eldridge, 424 U.S. 319, 330-31, 96 S.Ct. 893, 900-01, 47 L.Ed.2d 18 (1976), and the Zoning Board has no power to ...


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