In 1999, the plaintiff sought approval to construct an AM radio broadcast station with a 266 foot transmitter tower in the City of Lebanon. Approval was denied, and the matter was litigated to the New Hampshire Supreme Court. The plaintiff was granted permission to proceed on the ground that the local zoning ordinance was preempted by federal law. Upon remand to a lower court, the plaintiff sought to recover its attorneys fees pursuant to two federal statutes, 42 U.S.C. sections 1983 and 1988, which allow a prevailing party to recover such fees if a state or local statute or regulation is used to deny that person a right guaranteed under the federal constitution or federal statutory law. These laws were initially passed after the Civil War and have been used since as a means to test state laws that are alleged to violate federally guaranteed rights. The trial court refused to allow such fees, and the question was appealed to the New Hampshire Supreme Court.
Referring to United States Supreme Court precedent, the New Hampshire Supreme Court found that the attorneys fees could be allowed only if the underlying federal statute provided the plaintiff with rights that it could enforce as an individual, as opposed to rights that benefit all citizens of the United States. In this case, the underlying law was the Federal Communications Act of 1934, which was found to benefit the general public, not individual broadcasters, and thus there could be no recovery under section 1983.
Section 1988 permits fees to be paid to a prevailing party in a case which vindicates a federally guaranteed right. The Court found that the plaintiff was not a “prevailing party” because the finding of preemption simply accorded the federal law the proper priority in processing the claim, rather than vindicating a protected right, and thus denied relief on this ground.
While the City of Lebanon escaped liability in this case, the result was based upon the text of the underlying federal communications law. If the claim had arisen under other laws that provided for a private right of recovery, liability could have been imposed. In cases where federal laws are involved, or claims are made that implicate federally guaranteed rights, care should be used to review decisions in light of those provisions in order to avoid liability for attorneys fees in later litigation.