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AMERICAN TOWERS, INC. v. WILLIAMS
June 14, 2001
AMERICAN TOWERS, INC., PLAINTIFF,
ANTHONY WILLIAMS, MAYOR OF THE DISTRICT OF COLUMBIA, ET AL. DEFENDANTS.
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Work Order, but then rescinded it a week later.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 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
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.
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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