be significant. 6 N.Y.C.R.R. § 617.7(b)(4) (2003). Here there was no indication anywhere in the record of any potentially significant environmental impacts. The ZBA's decision rests solely upon a stated desire to see the existing guyed tower replaced with a supposedly more attractive monopole. Whether that might be desirable and whether it is even feasible given that Nextel does not own or control the tower, the application before the ZBA was simply to allow Nextel to add one more set of antennae to a remotely located tower already containing the equipment of several other providers and at a height below all of the others. The Town Planning Department saw no environmental impact from this application, and the ZBA's determination is without basis under state as well as federal law. Nextel is, therefore, entitled to summary judgment on its third cause of action.
Civil Rights Claim
Nextel's fourth claim is made pursuant to 42 U.S.C. § 1983 and 1988. Under this cause of action, Nextel contends that it sustained money damages as a result of the ZBA's unlawful actions and, as a result, it is entitled to a reasonable attorney's fee as well. In order to prove a claim under 42 U.S.C. § 1983, a plaintiff must show that a person, acting under color of state law, deprived him of rights secured by the Constitution or the laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981). Section 1983 may be employed to remedy violations of federal statutes. Maine v. Thiboutot, 448 U.S. 1, 4 (1980). In order to state a claim under Section 1983, Nextel must meet two requirements. First, the federal statute must create private rights enforceable under Section 1983 and second, the statute must not evidence congressional intent to foreclose a cause of action under Section 1983. Blessing v. Freestone, 520 U.S. 329 (1997).
With regard to both elements, in Omnipoint Communications v. City of White Plains, 175 F. Supp.2d 697 (S.D.N.Y 2001), after reviewing the criteria laid out in Blessing, the Southern District found that Section 1983 remedies were viable under the TCA and that Congress had not specifically excluded remedies under Section 1983 for violations of the TCA. Id. at 706-08. Numerous other courts within the Second Circuit have found similarly. See Sprint Spectrum v. Mills, 65 F. Supp.2d 161, 162 (S.D.N.Y. 1999); SBA Communications, Inc. v. Zoning Comm `n of the Town of Franklin, 164 F. Supp.2d 280, 294-95 (D.Conn. 2001); SBA Communications Inc. v. Zoning Comm `n of the Town of Brookfield, 96 F. Supp.2d 139, 142 (D.Conn. 2000); Omnipoint Communications v. Wallingford, 91 F. Supp.2d 497 (D.Conn. 2000); Cellco Partnership v. Farmington, 3 F. Supp.2d 178 (D.Conn. 1998); Smart SMR of New York, Inc. v. Zoning Comm `n of the Town of Stratford, 995 F. Supp. 52, 60-61 (D.Conn. 1998).
The Court concurs with the reasoning in the cases holding that a plaintiff has a remedy under Section 1983 for violations of the TCA. As a local zoning board, the ZBA acted under the color of state law. See West v. Atkins, 487 U.S. 42, 49 (1988) (finding that a person acts under the color of state law if he or she "exercised power `possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law'") (quoting United States v. Classic, 313 U.S. 299, 326 (1941)). Also, by violating Section 332(c)(7) of the Act, the Court finds that the ZBA deprived Nextel of its federally guaranteed rights. Accordingly, Nextel is entitled to summary judgment on this cause of action.
An attorney's fee is recoverable as an element of damages under a Section 1983 claim as provided for under 42 U.S.C. § 1988. The relevant statute reads in pertinent part as follows:
Attorney's fees. In any action or proceeding to
enforce a provision of . . . [42 U.S.C.S §§
1981-1983 . . .] . . ., the court, in its discretion,
may allow the prevailing party, other than the United
States, a reasonable attorney's fee as part of the
costs. . . .
42 U.S.C. § 1988(b). There can be no dispute that Nextel is a prevailing party here. Given defendants' disregard of the TCA and New York State law, and the lack of opposition in defendants' papers, the Court, exercising its discretion, will order a reasonable attorney's fee.
The starting point for the determination of a reasonable fee is the calculation of the lodestar amount. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). In determining the number of hours reasonably expended for purposes of calculating the lodestar, the district court should exclude excessive, redundant or otherwise unnecessary hours, as well as hours dedicated to severable unsuccessful claims. See id. at 433-35, 440. The lodestar may be adjusted based on several factors, including in particular the "results obtained." Hensley, 461 U.S. at 434. There is, however, a "strong presumption" that the lodestar figure represents a reasonable fee. See Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986); Orchano v. Advanced Recovery, Inc., 107 F.3d 94, 99 (2d Cir. 1997); see also Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (1999).
Nextel is, therefore, directed to provide the Court with sufficient information concerning its claimed attorney's fee to enable the Court to properly adjudicate its claim for a reasonable attorney's fee in accordance with the law set forth above.
Nextel also seeks a permanent mandatory injunction. The standard for a permanent injunction is similar to the standard for a preliminary injunction: (1) irreparable harm and (2) success on the merits. University of Texas v. Camenisch, 451 U.S. 390, 392 (1981); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70,72 (2d Cir. 1979). Courts have consistently held that a mandatory injunction is an appropriate remedy for violations of the TCA. Cellular Telephone Company v. The Town of Oyster Bay, 166 F.3d 490, 496 (finding that the TCA does not specify a remedy for violations and that a majority of district courts have held that the appropriate remedy is injunctive relief in the form of an order to issue the relative permits); see also Preferred Sites, LLC v. Troup County, 296 F.3d 1210, 1222 (11th Cir. 2002) (injunction ordering issuance of a permit is an appropriate remedy for a violation of the TCA.); Nat'l Tower, LLC v. Plainville Zoning Board of Appeals, 297 F.3d 14, 21-22 (1st Cir. 2002) (in the majority of cases the proper remedy for a zoning board decision that violates the TCA will be an order instructing the board to authorize construction.); Omnipoint Communications, Inc. v. Planning & Zoning Commission of the Town of Wallinford, 83 F. Supp.2d 306, 312 (D.Conn. 2000) (finding that remand to board would not be appropriate as that would create further delay especially in light of the multiple hearings that have already spanned many months during the process).
Nextel has, on more than one occasion, attended a public hearing on its application for a wireless communications facility. Defendants are well aware of their responsibilities and obligations under the TCA and New York State law, yet they have willfully disregarded the law and wrongfully denied Nextel's special permit application. In this case, further review by defendants would serve no useful purpose and would greatly prejudice Nextel by further delaying its ability to provide service to the public in a non-covered area. A mandatory injunction is therefore an appropriate remedy.
In light of the above, the Court grants Nextel's application for summary judgment on all the causes of action in its complaint. The Town of Amherst and the Zoning Board of Appeals are hereby ordered to approve Nextel's application for a special use permit. As to its § 1988 claim, Nextel is directed to submit, by March 14, 2003, an application for the attorney's fee it is seeking, supported by requisite documentation.*fn4 Upon receipt, the Court will issue a scheduling order to allow defendants to contest, if they have a basis, plaintiff's attorney's fee request.
IT IS SO ORDERED.