The opinion of the court was delivered by: LEONARD D. WEXLER
Edward and Jacquelyn Ermler, husband and wife ("Ermlers" or "plaintiffs") bring this action against the Town of Brookhaven ("the Town" or "defendant") under 42 U.S.C. § 1988 for the award of attorney's fees as a result of their successful efforts to convince the Town to allow them to maintain a satellite dish antenna in their backyard. Presently before the Court is plaintiffs' motion and defendant's cross-motion for summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure. For the reasons stated below, plaintiffs' motion is granted.
According to the Ermlers' complaint and affidavit, in February 1990, the Ermlers, who live in Brookhaven, New York, purchased a satellite dish antenna and installed it in their backyard. In June 1990, Michael Derby, Brookhaven Building Inspector, told them that the antenna was classified as an "accessory structure," that a building permit was required for its installation, and that its placement in their backyard did not conform with the Town's setback requirements. The Ermlers were also shown a memo dated April 17, 1990 in which the Assistant Town Attorney for Brookhaven advised the Deputy Commissioner of Planning, Environment and Development that satellite dish antennas should be treated as accessory structures under the Brookhaven Building Code. In July 1990, Craig Lucas, Chief Building Inspector for Brookhaven, advised the Ermlers that they should apply for a building permit to install the antenna, and, after its inevitable denial, they should apply for a variance to the Building Code.
On July 18, 1990, the Town of Brookhaven issued a Notice of Violation to the Ermlers by reason of their installing the antenna without a building permit. The Notice of Violation states: "Unless this violation has been corrected within fifteen days, legal proceedings will be instituted to remedy such violation." On July 25, 1990, the Ermlers retained counsel in this matter.
On August 8, 1990, the Ermlers commenced this suit pursuant to 42 U.S.C. §§ 1983 and 1988 seeking an injunction, declaratory relief and attorney's fees. On August 29, 1990, the Town of Brookhaven issued a Final Notice of Violation to the Ermlers. However, by September 5, 1990, negotiations between the parties had begun and the Town agreed to take no further action in regard to the Notices of Violation while the negotiations were proceeding.
Subsequently, this Court ruled that the Ermlers have no legal basis to pursue their demand that the Town grant them the right to maintain their antenna "in perpetuity." Thus, the only matter left undecided is the parties' cross motions for summary judgment on plaintiffs' claim for attorney's fees.
Defendants first contend that plaintiffs are not entitled to attorney's fees in this action pursuant to 42 U.S.C. § 1988 because they do not have any cognizable "rights, privileges or immunities" to sustain an action pursuant to 42 U.S.C. § 1983. In Golden State Transit v. City of Los Angeles, 493 U.S. 103, 107 L. Ed. 2d 420, 110 S. Ct. 444 (1989), the Supreme Court wrote:
In all cases, the availability of the § 1983 remedy turns on whether the statute, by its terms or as interpreted, creates obligations "sufficiently specific and definite" to be "within the competence of the judiciary to enforce" . . . is intended to benefit the putative plaintiff, and is not foreclosed "by express provision or other specific evidence from the statute itself."
Id. at 106 (quoting Wright v. City of Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 423, 432, 93 L. Ed. 2d 781, 107 S. Ct. 766 (1987)). Moreover, it is clear that "federal regulations issued under Congress' mandate constitute 'laws' within the meaning of section 1983." Samuels v. District of Columbia, 248 App. D.C. 128, 770 F.2d 184, 199 (D.C. Cir. 1985); see also West Virginia Univ. Hosp., Inc. v. Casey, 885 F.2d 11, 18 (3d Cir. 1989), cert. denied, 110 S. Ct. 3213 (1990).
Although the Town now concedes that its classification of the Ermlers' satellite antenna as an "accessory structure" was preempted by 47 C.F.R. § 25.104, it argues that this regulation does not create rights protectible by a § 1983 action. The Town relies entirely on Vernon Howard v. City of Burlingame, 937 F.2d 1376 (9th Cir. 1991), in which the court found that 47 C.F.R. § 97.111 (concerning the regulation of ham radio antennas) was too "'vague and amorphous'" to create benefits "'sufficiently specific and definite to qualify as enforceable rights under . . . § 1983.'" Id. at 1380 (quoting Golden State Transit, 493 U.S. at 106). The Howard court also found that F.C.C. declaratory ruling PRB-1 requires only ...