Bellsouth Telecommunications, LLC v. City of Daphne
The United States District Court, Southern District of Alabama denied a motion from Bellsouth Telecommunications, LLC (Bellsouth) to enforce a preliminary injunction and award fees, costs, and other appropriate relief against the City of Daphne, Alabama. In 2017, the city enacted an ordinance which required applicants of construction in the right-of-way to limit utility markers to a height of twenty-four inches for all projects that involved burying lines for 500 feet or more. In the summer of 2018 the city began to remove markers which violated this ordinance. A few weeks later, Bellsouth a Complaint for Emergency and Permanent Injunctive Relief, Declaratory Relief, and Monetary Damages, claiming an unlawful taking and a denial of due process. In the fall of 2018, the city and Bellsouth entered into an agreement for a preliminary injunction that prevented the city from destroying markers but also required Bellsouth to record the number and general location of markers to a specific standard.
After the mutually agreed to preliminary injunction, the city enacted a new ordinance which required all utility markers not to exceed 24 inches in height, be placed no more frequently than every 300 feet or line of sight, whichever was less, and for all markers to have identifying information on them. Bellsouth argued that this new ordinance violated the preliminary injunction. The city countered and argued that the preliminary injunction did not proscribe the city's ability to enact a new right-of-way ordinance and that enacting such an ordinance was well within the city's legislative powers. The court agreed with the city and held that the preliminary injunction applied to markers removed prior to the new ordinance's enactment and that there was no evidence that the city had attempted to enforce the new ordinance against such markers.