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June 14, 2001


The opinion of the court was delivered by: Paul L. Friedman, District Judge.

On March 13, 2000, the Building and Land Regulation Administration ("BLRA"), a division of the Department of Consumer and Regulatory Affairs ("DCRA") of the District of Columbia government, issued a building permit to American Towers, Inc. ("American Tower") authorizing it to commence construction of a 756-foot telecommunications tower on property American Tower owned on 41st Street near Wisconsin Avenue in the Tenley neighborhood in Northwest Washington, D.C. American Tower promptly began construction. On September 8, 2000, the BLRA issued a Notice of Stop Work Order, but then rescinded it a week later. On September 19, 2000, the District of Columbia Council passed legislation entitled the "Moratorium on the Construction of Certain Telecommunications Towers Emergency Amendment Act of 2000" (the "Moratorium Act"), temporarily prohibiting the issuance of building permits for construction or expansion of telecommunications structures above 200 feet.
On October 5, 2000, the DCRA issued a notice to American Tower indicating the DCRA's intention to rescind and cancel plaintiff's building permit based on five specific errors it said it had belatedly identified in the original permit review process that resulted in an ostensibly erroneous issuance of the permit. See Amended Complaint, Ex. 9 ("Notice of Intent to Rescind"). In the notice the DCRA invited American Tower to provide "written statements, evidence, or documentation . . . demonstrating that the errors . . . did not take place." Id. at 4. On October 10, 2000, counsel for American Tower responded by letter, addressing each of the five asserted errors. See Amended Complaint, Ex. 10. Later that same day, however, the DCRA responded to American Tower's arguments in a final notice rescinding and canceling the permits. See Amended Complaint, Ex. 11 ("Final Notice of Rescission"). The Final Notice effectively halted construction of the 756-foot broadcast tower.
On October 11, 2000, plaintiff filed suit in this Court seeking declaratory and injunctive relief that would allow it to proceed with the construction of the tower, as well as compensatory damages of $150 million and punitive damages of $100 million. In its amended complaint, filed November 20, 2000, plaintiff asserts denial of equal protection (Count One); taking of property and denial of due process (Count Two); deprivation of federal rights under color of law (Count Three); violation of the Telecommunications Act of 1996, 47 U.S.C. § 332 (Count Four); equitable estoppel (Count Five); confiscatory taking (Count Six); willful violation of District of Columbia law (Count Seven); and wrongful interference with prospective advantage and unfair competition (Count Eight).
On November 1, 2000, the Court held a hearing on and denied plaintiff's motion for immediate injunctive relief, finding that while plaintiff was likely to succeed on the merits of certain of its claims, there was no irreparable harm warranting a preliminary injunction. See Order of Nov. 1, 2000. The Court subsequently set a briefing schedule on defendants' motion to dismiss, staying discovery until the motion is resolved, see Order of Nov. 17, 2000, and heard oral argument on the motion. In its motion, defendants contend that all of plaintiff's federal claims denial of equal protection, denial of due process and violation of the Telecommunications Act of 1996 — should be dismissed because they fail as a matter of law.*fn1 Defendants suggest that because these are the only claims that could give this Court original jurisdiction, the Court should dismiss the case in its entirety and allow it to be refiled in the "proper" forum presumably in the Superior Court of the District of Columbia or before the appropriate administrative agency or board. Defendants' motion will be granted.


In Count One of its amended complaint, American Tower asserts that the District of Columbia's October 10, 2000 decision to rescind its building permit was arbitrary and capricious and that it violated plaintiff's vested property interests by singling it out for adverse treatment in violation of the Equal Protection Clause.*fn2 American Tower asserts that it is similarly situated to several other companies that did not have their building permits revoked — specifically, three other broadcast towers in the Tenley area that all exceed 600 feet in height — and that the District's actions have had an adverse impact on it.

To pass constitutional muster under the equal protection component of the Fifth Amendment's Due Process Clause, an official government action need only bear a rational relationship to a legitimate governmental purpose so long as no suspect or quasi-suspect class is involved. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439-40 (1985). Because American Tower is not a member of a suspect or quasi-suspect class, the Court must consider only whether there was a rational basis for the decision reached by the District to rescind the permit. See Heller v. Doe, 509 U.S. 312, 319-20 (1993); Steffan v. Perry, 41 F.3d 677, 684-85 (D.C. Cir. 1994). In defending against an equal protection claim, the government must offer a rational basis for its conduct, but it has no obligation to present any evidence to sustain the rationality of its decision. See Steffan v. Perry, 41 F.3d at 684. Indeed, the burden is on the one attacking the government's action "to negative every conceivable [rational] basis which might support it, whether or not the basis has a foundation in the record." Id.
The District of Columbia suggests that there are several rational bases for its decision to rescind American Tower's building permit, chief among them that it must enforce the District of Columbia Height Act, D.C. Code § 5-405(h). Originally enacted by Congress in 1910, the Act requires builders of broadcast towers over 600 feet in height to obtain a waiver of the provisions of the Act before beginning construction, D.C. Code § 5-405(h), and provides that any tower built in violation of Section 5-405(h) constitutes a common nuisance. D.C. Code § 5-408. The District contends that since the owners of all the other towers cited by plaintiff obtained waivers of the Height Act while American Tower did not even attempt to do so, the District did not act arbitrarily, capriciously or unconstitutionally when it revoked American Tower's building permit.
American Tower does not argue with defendants' assertion that a violation of the Height Act would constitute a rational basis to rescind its permit. Rather, plaintiff contends that it received an implied waiver of the Height Act when the District issued it a permit to build a tower over the maximum height restriction — even though plaintiff did not formally request a waiver and even though the building permit it received did not expressly grant a waiver. The Court has some sympathy for this argument, since the District government was fully aware of the height of the tower throughout the process. The application for the building permit submitted to the District described the proposed tower as being 756 feet high, see Amended Complaint, Ex. 3; the 756-foot height was highlighted in a memorandum from the D.C. Office of Planning to the Chief of the Zoning Review Branch of the DCRA, see Amended Complaint, Ex. 4; and the building permit issued by the DCRA described the tower, including its purpose and its proposed — in plaintiff's view, its authorized — height. See Amended Complaint, Ex. 5. Whether on these facts plaintiff may be entitled to substantial money damages on a theory of equitable estoppel or confiscatory taking, however, is irrelevant to plaintiff's equal protection claim.
In determining whether plaintiff has been denied equal protection of the law, this Court must decide only whether defendants have offered a rational basis for its action and whether plaintiff has negatived every conceivable basis that might support the District's action. See Steffan v. Perry, 41 F.3d at 684. The District has presented a rational basis for its rescission of plaintiff's building permit — violation of the Height Act — and plaintiff has failed to negative that rational basis. It is not disputed that plaintiff's tower, if built, would violate the Height Act. What is disputed is whether the District implicitly waived the Height Act when it issued the permit. Such a question is not one of constitutional import; it is a question of state law and its resolution is best left to the local courts. The Court concludes that plaintiff has failed to state an equal protection claim.


In Count Two of its amended complaint, American Tower asserts that the Moratorium Act passed by the District of Columbia Council and certain proposed zoning regulations constitute a taking of property without just compensation and thus violate plaintiff's right to substantive due process of law. American Tower suggests that the Moratorium Act violates plaintiff's due process rights because it unfairly authorizes the Mayor to halt construction of the tower and to create a regulatory scheme that could be used later to block the resumption of construction on the tower. See Defs.' Motion, Ex. A (Moratorium on the Construction of Certain Telecommunications Towers Emergency Amendment Act of 2000, D.C. Act 13-442) ("Moratorium Act").*fn3 It also argues that the proposed zoning regulations, if passed, would retroactively destroy American Tower's zoning interests. See Amended Complaint, Ex. 12 (letter from D.C. Office of Planning to D.C. Zoning Commission regarding recommendation that Zoning Commission consider amending zoning regulations regarding standards for antenna towers) ("DCOP Proposal").

Plaintiff's due process claim fails as a matter of law because the Moratorium Act and the proposed zoning regulations do not affect any vested property interest American Tower may have in the building permit. No property interest of American Tower is adversely affected by the Moratorium Act because the Act by its express terms has only prospective application. It is not applicable to American Tower because it is a moratorium on the future issuance of building permits for telecommunications towers of over 200 feet until the Mayor formulates a policy on the matter. See Moratorium Act § 2. Furthermore, contrary to plaintiff's assertion, the legislation issues no legally binding "directives" to the Mayor regarding the tower at issue in this case. The Council expressed concerns about the tower and made requests of the Mayor in a section entitled "Sense of the Council," but it is clear from the plain language of the Act that those expressions of concern and suggestions have no legal effect. See Moratorium Act § 3. With respect to the proposed zoning regulations, any claim ...

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