July 2005

by Joel Ellinwood, AICP

California provided the battleground for two recent significant cases that clarified the Telecommunications Act of 1996 (TCA) as it pertains to local zoning powers and the siting of wireless communication antenna facilities. The United States Supreme Court ruled in City of Rancho Palos Verdes v. Abrams, 125 S.Ct. 1453 (2005) that remedies for violation of the TCA are limited to injunctive relief and do not include the award of damages or attorney’s fees under the federal Civil Rights Act. The Ninth Circuit Court of Appeals decided in MetroPCS, Inc. v. City and County of San Francisco, 400 F.3d 715 (2005) to balance the needs of wireless companies to provide effective service and local governments to exercise zoning controls over location and appearance of sites. Taken together, the two decisions set out the “rules of engagement” for future wireless facility siting battles in California. Continue Reading Can You Hear Me Now? Proposed Cell Tower Sites Result in Controversy

by Elias E. Guzman

Eminent domain actions are guided by the Fifth Amendment of the United States Constitution, which guarantees that governments shall not take private property “for public use, without just compensation.” It is this notion of “public use” that was examined in the recent Supreme Court case Kelo v. City of New London, 125 S.Ct. 2655 (2005). In Kelo, the Court held that a local government body, or its agent, can in fact use eminent domain to take private property for a “private use,” as long as the taking is justified by being part of a larger economic development plan that helps or benefits the community. Continue Reading Taking Kelo For What It Is Worth

Congratulations to Abbott & Kindermann’s newest associate, Elias E. Guzman. Elias previously worked as a law clerk at Abbott & Kindermann and we are delighted that he will be joining the firm as an attorney. You can read more about Elias’ education and background at http://www.aklandlaw.com. Also, please welcome Rhonda Engel, who joined the firm on June 27 as a legal secretary.

by Joel Ellinwood, AICP and Janell M. Bogue

In May the Supreme Court announced a unanimous decision that changes 25 years of Fifth Amendment jurisprudence, eliminating the “substantially advances” test for determination of whether a government regulation results in a taking of property. In Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005), the Court said that the test first laid out in Agins v. City of Tiburon, 447 U.S. 255 (1980) was not appropriate for determining whether a government regulation requires compensation. This clarifies what was until now a somewhat murky and muddled area of law. Continue Reading Hawaiian Case Prompts Sea Change in Takings Law