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Home My WebLink AboutAmateur Radio Text Amend CommentsRex A. Auker 62575 Stenkamp Road Bend, Oregon 97701 February 25, 2008 Board of Commissioners Deschutes County 117 NW LaFayette Avenue Bend, Oregon 97701 Subj: Amateur Radio Text Amendment TA -06-10 Introduction: I offer my sincere thanks to the Deschutes County Commissioners and staff for the many hours of work and careful consideration that have been dedicated to the matter of clarifying the regulation of amateur radio antennae. In the following comments I will first state eight general guidelines for the regulation of amateur radio antennae. After that I will explain each guideline in detail and the rationale that supports it. General Guidelines for the Regulation of Amateur Radio Antenna. 1. County code must consider the needs and desires of all county residents. 2. County code must preserve the established purposes of land use zones. 3. County code must preserve valuable resources. 4. County code must place specific and reasonable limits on the definition, construction and location of amateur radio antenna. 5. County code must provide for "reasonable accommodation" of amateur radio. 6. The limits that county code places on the construction and location of amateur radio antenna must be consistent with the limits placed on the construction of radio antenna used for other -than -amateur purposes. 7. County code must be clear and enforceable. 8. New code amendments must not reward those who failed to comply with existing code. 1. County Code must consider the needs and desires of all county residents. a. The under -represented majority. In public hearings before the planning commission and the Board of County Commissioners amateur radio operators have shown themselves to be a vocal, well-organi led and apparently well -funded group of 1 1 Deschutes County citizens. We must remember, however, that amateur radio operators compose only a small minority of the citizens who reside in this county. The needs and desires of all Deschutes County residents must be considered. b. Small land parcels. The proposed text amendment allows an amateur radio operator to construct grey metal antenna structures 70 feet high on any sized lot in any land use zone in Deschutes County. There are some areas of Deschutes County where lot sizes are less than 1/8 acre. According to county records there are 67,801 existing parcels in Deschutes County that are less than one acre in size. As an example, the Starwood residential development, is located in unincorporated Deschutes County south of Tumalo Road. Lot sizes there are as small as a quarter acre. In such a development, even a single antenna 70 feet high would severely degrade the aesthetics, safety and livability of the neighborhood. 1) Here is a sampling of residential minimum lot sizes allowed by county code in various zones of unincorporated Deschutes County. Sunriver - 6,000 sq ft. (about 1/8 acre) LaPine - 5,000 sq ft.(less than 1/8 acre) Terrebone Residential (TeR) - 7500 sq ft (about 1/7 acre). Brothers/Hampton/Millican - 2.5 acres. Alfalfa - 5 acres. c. Industrial -type structures. The proposed text amendment specifically allows for tall tubular metal and metal latticework antenna support structures. It addresses structure height, but places no restrictions on antenna components or spars that are oriented horizontally. Neither are there restrictions on the size or number of guy wires or the size of the footprint of the total structure. Conceivably under the proposed text amendment an amateur radio operator could construct a cubical or cylindrical skeleton- like antenna support structure from grey metal components which could reach 70 feet in height and several hundred feet in depth and breadth. The only restriction would be that the structure remained outside the established property line setbacks for the underlying zone. As I understand the current county code, large metal skeleton-like structures are restricted to commercial and industrial zones unless they are constructed within pre- established easements or are necessary for the provision of vital public utilities such as electrical power, gas or water. Even then, those industrial -type structures are subject to extensive site plan review, public hearings and conditional use permits prior to the initiation of construction. In intent and effect the proposed text amendment gives individual amateur radio operators blanket approval to construct big grey metal industrial -type structures in residential, agricultural and forest zones. 2. County code must preserve the purposes of established land use zones. The stated purposes of many zones must be understood to prohibit the construction of big grey metal industrial -type structures. a. Rural Residential Zone — RR -10. "The purposes of the Rural Residential Zone are to provide rural residential living environments; to provide standards for rural land use and development consistent with desired rural character ... (DCC 18.60.010) 2 b. Exclusive Farm Use Zone - EFU. "The purpose of the Exclusive Farm Use Zone is to preserve and maintain agricultural lands and to serve as a sanctuary for farm uses." (DCC 18.16.010). c. The specific language concerning structures in these zones only gives outright permission for industrial -type structures if those structures are necessary for furthering the stated purposes of the zones. Other industrial -type structures are either prohibited or are required to have a conditional use permit. For instance: 1) In Rural Residential Zones — RR -10 the only industrial -type structures permitted outright are "Utility facilities necessary to serve the area including energy facilities, water supply and treatment and sewage disposal and treatment." (DCC 18.60.020 B). 2). In Exclusive Farm Use Zones outright permission is given only for utility facility service lines that serve the parcels in that zone, structures for the mining and processing of energy resources, and structures necessary for the disposal of solid waste if ordered by the Environmental Quality Commission (DCC 18.16.020 N, Q, R ). 3. County code must preserve valuable resources. The proposed text amendment allows for construction of big grey metal antenna support structures on irrigated land, but it places no restriction on the footprint of those antenna and support structures. My neighbor has constructed at least two ham radio antennas which do not reach high into the air but actually lay on the ground. One such antenna consisted of multiple wires laid directly on the ground which extended out distances of approximately 100 feet in all directions from a center point like the spokes of a wheel. This antenna was constructed on irrigated farm land, but because of the antenna's vulnerability to damage my neighbor neither irrigated the land nor allowed animals to graze there. In effect, his radio antenna made his farmland unusable for its intended purpose and could have eventually led to the loss of irrigation water rights for the property. County code must not give blanket approval for amateur radio operators to convert farm land to non-farm uses. Neither should the county code allow amateur radio operators to place the county at risk of losing valuable water rights in the case of a state audit of irrigation. Such unauthorized conversion of land use can be prevented by simply prohibiting the construction of amateur radio antenna on irrigated land. 4. County code must place specific and reasonable limits on the definition, construction and location of amateur radio antenna. Amateur radio antennae come in all shapes and sizes. They can be as small as a 12 -inch whip antenna attached to an automobile or large enough to completely fill the space of a normal residential yard. They can be wires that stretch horizontally more than a thousand feet or an array or wires that stretch down and out diagonally in all directions from a tall mast, sort of like a May pole or Christmas tree. Yagi type antenna can sit on top of a single mast, but spread out horizontally for 40 feet. One antenna in Deschutes County resembles a giant pinwheel. Also, because some amateur radio operators devote themselves to experimenting with 3 new types of antenna, there is no way to predict what the antenna of the future may look like. a. Neither the federal regulations nor the state statutes make any statements about the geometric configuration of an amateur radio antenna or antenna structure. That task is left to local government. The authors of the code sections that cover wireless telecommunications facilities addressed the issues of radio antenna size and shape with both clarity and flexibility. Wood monopole antennas and support structures reaching no more than 45 feet in height are allowed outright in any zone (Tier I). Metallic antenna mounted on existing buildings and extending up to 15 feet above the building are permitted outright in all zones (Tier I). Wood monopole antennas and support structures in commercial and industrial zones may reach up to 75 feet in height (Tier II). Structures made of metal or other materials or which exceed 75 feet in height or which vary from monopole geometry require conditional use permits, neighborhood meetings and graphic representations of what the structure will look like before they can be built (Tier 111). b. Given the almost limitless possibilities for the size, shape and material composition of a radio antennas and structures, the current code policies concerning wireless telecommunications facilities would certainly meet the criteria of "mimimum practicable restrictions" to achieve the county's legitimate purposes if they were applied -to -amateur radio facilities. c. According to the proposed text amendment, "'Amateur Radio Facilties' means the external, outdoor structures associated with an operator's amateur radio service. This includes antennae, masts, towers, guy wires, and other antenna support structures that consist of solid tubular or open lattice metal structure not exceeding 25 inches on average in diameter or face width." d. What is the purpose of defining an amateur radio facility in a manner that specifically allows for big metal industrial -type structures? 1) According to FCC directives, (PRB-1 2000), it is clearly permissible for a local authority to prohibit the construction of certain types of amateur radio facilities in residential areas if those types of structures, when used for other -than -amateur -radio purposes, are also prohibited in that residential area. So if a county code prohibits or regulates the construction of big metal structures in a residential zone for, say, a commercial radio broadcast antenna, the FCC says it is permissible for the county to regulate amateur radio antennas in the same manner. It is reasonable to assume that the FCC would apply the same logic in the case of rural residential and agricultural zones. By defining amateur radio facilities so as to specifically allow for metal structures, the proposed amendment circumvents the FCC directive. In contrast to FCC directives, which clearly allow for the regulation of big metallic industrial -type amateur radio structures, the proposed text amendment will specifically prohibit the countyfrom n regulating big metal industrial -type amateur radio structures in residential, agricultural and forest zones.. 2) The proposed definition of amateur radio facilities also clearly establishes that they cannot be regulated as wireless telecommunication facilities as is currently allowable under the existing county code. a) Evidence from the minutes of the Deschutes County Planning Commission indicates that those who drafted the code requirements for wireless telecommunications facilities clearly intended to include amateur radio facilities under that definition. In November of 2001, George Read, who was then the Director of Community Development, told the planning commission that by definition ham radios were regarded as wireless telecommunication facilities. The minutes also show that the planning commission considered and rejected a proposal to exempt amateur radio from the code requirements that applied to wireless telecommunications facilities. Now seven years later, amateur radio operators are once again seeking exemption from the requirements of existing county code. 3) The proposed definition of amateur radio facilities combined with the color schemes mandated by other sections of the proposed code amendment encourages the proliferation of big grey metal industrial -type structures. The proposed code sections._ make no mention of support structures constructed of materials other than metal and they mandate that all metal structures will be either galvanized, matte silver or grey in color. The proposed code sections concerning antenna structures over 70 feet in height were modeled after the requirements for Tier III wireless telecommunications facilities which specify that antenna structure must be painted in natural colors which blend with the surrounding environment. Why was this requirement for natural looking colors altered when applied to amateur radio towers? What is it about amateur radio antenna that requires them to be grey or metallic in color? Will their operational characteristics be diminished if they are painted green or brown so as to blend in with surrounding vegetation or rock and soil colors? 5. County code must provide for "reasonable accommodation" of amateur radio. The FCC requires that local governments provide for "reasonable accommodation" of amateur radio. What is "reasonable accommodation"? Amateur radio operators would like us to believe that any restriction of the exercise of their hobby is unreasonable, but that is not what the FCC intends. In 2000 the FCC clarified the meanings of "reasonable accommodation" and "minimum practicable restriction". Here is what they said: We take this opportunity to amplify upon the meaning of 'reasonable accommodation' of amateur communications in the context of local land use and zoning regulations. The Commission adopted a limited preemption policy for amateur communications because there is a strong federal interest in promoting amateur communications. We do not believe that a zoning regulation that provides extreme or excessive prohibition of amateur communications could be deemed to be a reasonable accommodation. For example, we believe that a regulation that would restrict 5 amateur communications using small dish antennas, antennas that do not present any safety or health hazard, or antennas that are similar to those normally permitted for viewing television, either locally or by satellite, is not a reasonable accommodation or the minimum practicable regulation. On the other hand, we recognize that a local community that wants to preserve residential areas as livable neighborhoods may adopt zoning regulations that forbid the construction and installation in a residential neighborhood of the type of antenna that is commonly and universally associated with those that one finds in a factory area or an industrialized complex (Emphasis mine). Although such a regulation could constrain amateur communications, we do not view it as failing to provide reasonable accommodation to amateur communications. a. What does that mean? First, it means that the regulation of amateur telecommunications structures must be consistent with the regulation placed on radio telecommunications structures used for other -than -amateur -radio purposes. Second it means that local governments are clearly permitted to regulate amateur communications even if that regulation could "constrain" amateur communications. If the county allows antenna of a particular size and type for other -than -amateur -radio purposes, then it must also allow antenna of that size and type for amateur radio purposes. But if the county places restrictions on antenna structures of a particular size and type for other -than -amateur -radio purposes, then the county may also place the same restrictions on antenna structures used for amateur radio. Essentially, amateur radio must be treated even-handedly when compared to other sorts of radio frequency transmission and reception facilities. In Deschutes County this means that the county code cannot place more restrictions on amateur radio than those that exist for wireless telecommunications facilities or radio towers. But the FCC does not require Deschutes County Code to place fewer restrictions on amateur radio than are placed on wireless telecommunications facilities or radio towers. 6. The limits that county code places on the construction and location of amateur radio antenna must be consistent with the limits placed on the construction of radio antenna used for other -than -amateur -radio purposes. a. In oral testimony before the Deschutes County Planning Commission amateur radio enthusiasts argued that it was unreasonable to -require of them the same fees and processes that are required of commercial radio facilities. FCC policy does not support such a contention. FCC policy would prohibit fees and processes that appear to be designed to discourage construction of amateur radio facilities when compared to other - than -amateur -radio facilities, but the FCC would not stand in the way of a local government charging reasonable fees that are commensurate with the staff and administrative costs of processing a construction or land use permit for an amateur radio facility. 1) As I recall, Commissioner Luke mentioned in a recent working session that state statute already prohibits a local government from charging unreasonable processing fees for any construction and land use permit. If Deschutes County is in 6 compliance with that statute, then amateur radio operators are already protected from intentionally prohibitive administrative fees and processes. b. With regard to specific construction or height requirements, current Deschutes County Code already regulates both wireless telecommunications facilities and radio towers. When interpreted properly, amateur radio facilities also fall into the code definitions of either of those categories and should be regulated as such. But if the Board of Commissioners chooses to create an entirely new category of structure for amateur radio facilities, then the requirements and restrictions for those facilities may not be more restrictive than those already established for wireless telecommunications facilities and radio towers. On the other hand, there is nothing that prohibits the county from regulating amateur radio facilities in exactly the same manner as wireless telecommunications facilities or radio towers. 7. County code must be clear and enforceable. The current contention about amateur radio facilities has occurred because of a lack of clarity in the language of the existing county code. When there is unnecessary lack of clarity neither the amateur radio operator nor his neighbor are well -served. a. Retractable antenna. Earlier drafts of the proposed text amendment failed to specify whether a retractable antenna was to be measured at full height or retracted height. The current proposed text amendment clearly states that if a retractable antenna is capable of being elevated beyond 70 feet, it will be regarded as higher than 70 feet for purposes of the code. Well done! Compliance with the code and enforcement will be much improved because of that clarity. To ensure clarity in all circumstances I recommend that the following statement be included in the code: "All antenna and antenna structures will be measured at the greatest height, depth and breadth they are capable of reaching" b. Varieties of antennae. Because there is such a wide variety of potential antenna types and structures, it is strategically wise for the code to clearly describe what sort of structure is permitted outright, and then require the conditional use process for proposed structures that deviate from what is clearly defined. The three tier approach used for wireless telecommunications facilities does exactly that. It states clearly that wooden monopole antenna structures up to 45 feet in height are permitted outright in any zone (Tier I). It states clearly that antenna structures of any composition may be mounted on top of existing structures as long as they do not extend more than 15 feet above that structure (Tier I). It states clearly that wood monopole antenna support structures are permitted outright in commercial and industrial zones up to a height of 65 (and in some cases 75) feet (Tier II). All other antenna structures are wisely defined as Tier HI structures and are subject to a conditional use process because there are virtually no limits on the variety of shapes, sizes, and material composition of radio antenna and antenna structures. 1) If the Board of Commissioners decides against regulating amateur radio facilities as wireless telecommunication facilities, I recommend they adopt a three tier approach as follows: Tier I: Wood monopole antenna structures not exceeding 45 feet in height are permitted outright in all zones. Also, antenna structures made from any material are permitted outright if they are mounted on top of existing structures (such as houses or outbuildings) and do not extend more than 15 feet above that existing structure. Tier II: Wood monopole antenna structures not exceeding 75 feet in height are permitted outright in all commercial and industrial zones. They are also permitted outright in all other zones provided the land parcel on which they are located is larger than 2 acres. Tier III: Tier III amateur radio facilities include all those facilities that do not meet the specifications of Tier I and II. Tier III amateur radio facilities are permitted subject to the same requirements that are applied to Tier III wireless telecommunications facilities. c. Multiple antennae on the same land parcel. It is reasonable to accommodate amateur radio by permitting outright the construction of a single amateur radio antenna provided the size, shape, and color of that antenna structure is consistent with the purposes of the underlying zone. Allowing the construction of multiple antennae, particularly on small parcels of land, goes beyond reasonable accommodation. The proposed code amendment deals with this issue in a clear and manageable manner. The first amateur radio antenna is permitted outright. Additional antennae may be permitted subject to a conditional use process which can consider the wide variety of individual circumstances that are likely to be encountered such as the size of the parcel of land, scenic views of the neighbors, vegetative screening, etc. c. The clarity of the code sections regarding wireless telecommunications facilities enhances the permit and construction process for both the citizens and the county government. When a citizen decides to build a wireless telecommunications' facility, he can do so with the confidence that he cannot be legitimately bothered by complaints from his neighbors. The neighbors also can live with the assurance that someone will not be allowed to move into their residential or agricultural locale and erect industrial -type structures. Because the standards are clearly defined the code enforcement officer is also empowered to carry out her duties with confidence and efficiency. In crafting the code amendment for amateur radios, we will all benefit from a thorough understanding of the code sections that deal with wireless telecommunications facilities. They are extremely well-written. Better yet, I recommend that we simply do as the Deschutes County Planning Commission intended in 2001, and accept as truth that by definition ham radios are wireless telecommunications facilities. 8 8. New code amendments must not reward those who failed to comply with existing code. Allow me to speak very personally. I am a retired Naval Officer. Throughout my career of public service I moved from one duty station to another according to the needs of the Coast Guard and the Navy. More often than not my assignments were in large metropolitan areas with shipyards, air stations or major government complexes. After I retired from the Navy, my wife and I looked for a location where we could live out our dream of owning a hobby farm and pursuing my wife's passion for horses. That's when we discovered Deschutes County with its natural beauty and splendid opportunity for a rural lifestyle. We found an affordable home on 17 acres in an exclusive farm use zone where we have raised sheep, cattle, chickens and horses. For 27 years I worked primarily in industrial environments dominated by big grey metal ships, big grey metal aircraft, big grey metal guns, big grey metal antenna structures. When deciding to live in an Exclusive Farm Use zone in Deschutes County I was told that I would be moving to an environment that was intentionally preserved for agricultural purposes and, presumably, inhabited by people who had desires similar to mine, desires for green pastures, scenic vistas, and playful young animals. About two years after we occupied our property, a person who had much different intentions moved in next door. He apparently came to Central Oregon because of its potential for good radio wave propagation, and he envisioned the farmland he purchased not as a resource for agriculture, but as a location for an amateur experimental telecommunications facility. Shortly after moving his family here, even before he began construction on his new home, he erected his first grey metal industrial -type antenna structure which reached approximately 60 feet into the air, far above the height of the tallest of the surrounding trees and, according to the Community Development Department, about 30 feet higher than permitted by extant county code. He did not apply for a building permit before constructing that antenna. A year or two later, he erected a second big grey metal industrial -type antenna structure, about 80 feet high, again in violation of county code and without the required building permit. A couple years later, he began construction on a third big grey metal industrial -type antenna structure, about 120 feet high with 9 guy wires that stretch out 75 feet from its base, again in violation of county code, again without a building permit.. When the third antenna began to rise up in April of 2006, I filed a complaint with the Deschutes County Code Enforcement Officer. The county then ordered a temporary halt in construction and required my neighbor to apply for building permits for all three antenna structures. The county has not yet approved the permits, but they have given my neighbor permission to complete construction and put the newest antenna into full use. Additionally, county officials gave my neighbor the opportunity to draft a change to the county code that would authorize his antennae to remain standing. Recently my neighbor filed civil suit against the county in an attempt to force them to approve building permits for each of the offending antenna structures. The county answered that lawsuit by 9 arguing that the placement of radio antennae involves land use decisions which have not yet been made. I chose my home in anExclusive Farm Use zone because my wife and I wanted to live a lifestyle consistent with the established purposes of the zone. I have adapted my activities to remain in compliance with those legitimate zoning purposes. I came to Deschutes County to escape constant exposure to structures and lifestyles that are characteristic of urban, commercial and industrial zones. Given the county code that was in effect at the time I moved here, itis entirely reasonable for me to expect some measure of protection from those who would move into an agricultural zone with specific intent to change the character of the zone and to repeatedly violate that zone's construction and land use provisions. Whatever the Board of Commissioners finally determines to be the appropriate requirements for amateur radio facilities, I ask that you ensure that existing non -conforming structures are swiftly compelled to comply. Sincerely, Rex A. Auker 10 FW: Amateur radio towers ordinance Page 1 of 2 Kristen Maze From: Ken Brinich [Ken@hxbri.com] Sent: Friday, February 22, 2008 4:06 PM To: Kristen Maze Subject: FW: Amateur radio towers ordinance Attachments: Ken Brinich (Ken@hxbri.com).vcf; Reasonable Accomodation of Amateur Radio Communications by Zoning Authorities; The FCC's PRB-1 Preemption.pdf; Snook v. City of Missouri City TX.pdf; Ken Brinich (Ken@hxbri.com).vcf Kristen; This did not go through the first time I tried. Ken Brinich Hendrix Brinich & Bertalan, LLP 716 NW Harriman Bend, OR 97701 541-382-4980 541-382-9060 (fax) ken@hxbri.com The information in this e-mail is confidential and may be legally privileged. It is intended solely for the addressee. Access by others is unauthorized. To comply with IRS regulations, I am required to inform you that this message, if it contains advice relating to federal taxes, cannot be used for the purpose of avoiding penalties that may be imposed under federal tax law. Any tax advice that is expressed in this message is limited to the tax issues addressed in this message. If advice is required that satisfies applicable IRS regulations, for a tax opinion appropriate for avoidance of federal tax law penalties, please contact your «Ken Brinich (Ken@hxbri.com).vcf» From: Ken Brinich Sent: Friday, February 22, 2008 4:03 PM To: 'kristenm@codeschutes.or.us'; Laurie Craghead (Laurie craghead@co.deschutes.or.us) Subject: Amateur radio towers ordinance Laurie and Kristen: Attached are two pdf files. The first is the Snook case which I cited in my letter. The second is an article from the Connecticut Law Review. It reviews Reasonable Accommodation cases where there has been conflict between PRB-1 and local zoning authorities. Ken «Reasonable Accomodation of Amateur Radio Communications by Zoning Authorities; The FCC's PRB-1 Preemption.pdf» «Snook v. City of Missouri City TX.pdf» 3/4/2008 FW: Amateur radio towers ordinance Page 2 of 2 Hendrix Brinich & Bertalan, LLP 716 NW Harriman Bend, OR 97701 541-382-4980 541-382-9060 (fax) ken cAhxbri.com The information in this e-mail is confidential and may be legally privileged. It is intended solely for the addressee. Access by others is unauthorized. To comply with IRS regulations, I am required to inform you that this message, if it contains advice relating to federal taxes, cannot be used for the purpose of avoiding penalties that may be imposed under federal tax law. Any tax advice that is expressed in this message is limited to the tax issues addressed in this message. If advice is required that satisfies applicable IRS regulations, for a tax opinion appropriate for avoidance of federal tax law penalties, please contact your «Ken Brinich (Ken@hxbri.com).vcf» 3/4/2008 REASONABLE ACCOMMODATION OF AMATEUR RADIO COMMUNICA- TIONS BY ZONING AUTHORITIES: THE FCC'S PRB-1 PREEMPTION I. INTRODUCTION "CQ Sweepstakes, CQ Sweepstakes, this is Whiskey Four Alpha Que- bec Lima." "November Four Quebec X-ray." "N4QX, please copy number 369 Sierra, W4AQL, 34, Georgia." "Thank you, and go Jackets! Please copy number one Alpha, N4QX, 97, Connecticut." "Thanks, Brennan. Q -R -Zed? This is Whiskey Four Alpha Quebec Lima." The above exchange, which is nonsense at first glance, actually oc- curred the morning of Sunday, November 17, 2002. It transpired between two amateur radio stations on opposite ends of the Eastern United States. "Whiskey Four Alpha Quebec Lima" is the amateur station on the campus of the Georgia Institute of Technology, W4AQL.' "November Four Que- bec X-ray" is N4QX, the station licensed to the author of this Comment; who attended graduate school at Georgia Tech and wanted to communicate with his alma mater's station. The occasion was the November Sweep- stakes, an annual event held by the American Radio Relay League ("ARRL"), a national membership organization of amateur radio operators (and the former employer of the author of this Comment).3 The object of FCC License Data Search, Georgia Tech Amateur Radio Club, at http://www.arrl.org/fcc/ fcclook.php3?call=w4aql (last visited Aug. 1, 2004) (on file with the Connecticut Law Review). 2 FCC License Data Search, Brennan T. Price, at http://www.arrl.org/fcc/fcclook.php3?call=n4gx (last visited Aug. 1, 2004) (on file with the Connecticut Law Review). 3 ARRL was founded in Hartford, Connecticut, in 1914 by noted inventor Hiram Percy Maxim. Its name, which contains no reference to radio amateurs, was derived from its roots as a wireless mes- sage forwarding organization. An early history of amateur radio and ARRL can be found in CLINTON B. DESOTO, TWO HUNDRED METERS AND DOWN: THE STORY OF AMATEUR RADIO (ARRL 1936). ARRL continues to publish a variety of books and periodicals of interest to amateur radio operators and electronics enthusiasts, including QST, a monthly periodical. Today, ARRL styles itself as a noncommercial association of radio amateurs, organized for the promotion of in- terest in Amateur Radio communication and experimentation, for the establishment of networks to provide communication in the event of disasters or other emergen- cies, for the advancement of the radio art and of the public welfare, for the represen- tation of the radio amateur in legislative matters, and for the maintenance of frater- nalism and a high standard of conduct. 321 322 CONNECTICUT LAW REVIEW [Vol. 37:321 the event was to communicate and exchange information with as many stations throughout the United States and Canada as possible.4 The place was the 20 -meter amateur radio band, a portion of radio spectrum often suitable for long-distance communications during daylight hours.' Words from a phonetic alphabet6 were used in lieu of letters in order to enhance intelligibility of the information exchanged, which consisted of serial num- bers, competition classes, call signs, the years in which the stations were first licensed, and the stations' locations.' At the beginning and end of the exchange, the Georgia Tech station solicited a communication with another station; CQ means `Calling any station," 8 and QRZ?—with the British pronunciation of Z—means 'Who is calling me?" 9 Amateur radio is an activity with a language all its own, one as unfa- miliar to the general public as the language of law can be to non -lawyers. Amateur radio is also a federally regulated communications service, with an entire part of the Code of Federal Regulations dedicated to it.10 Most of the rules in this part are relatively uncontroversial, but one seemingly in- nocuous regulation has been the subject of a significant amount of litiga- tion: the regulation limiting state and local regulation of amateur station antenna structures. `State and local regulation of a station antenna struc- ture must not preclude amateur service communications. Rather, it must reasonably accommodate such communications and must constitute the minimum practicable regulation to accomplish the state or local authority's legitimate purpose."11 Since amateur radio is an activity that is foreign to many people, including those who serve on municipal councils and zoning boards, this regulation is rarely considered when antenna structure ordi- nances are created. Much of the litigation in this area has pitted an amateur against a municipality that had either declined to grant a zoning permit for an antenna structure or granted a permit for a structure that the amateur deemed inadequate. In some cases, the amateur prevailed; in others, the The American Radio Relay League, Inc., QST, Dec. 2002, at 9. ARRL is a dominant publisher of amateur radio material, and its publications will be cited freely herein. 4 2002 ARRL November Sweepstakes Rules, QST, Oct. 2002, at 100. 5 See THE ARRL HANDBOOK FOR RADIO COMMUNICATIONS 21.4 (Dana G. Reed ed., 80th ed. 2002) [hereinafter HANDBOOK]. 6 Id. at 30.40. The practice of using a phonetic alphabet to identify is even encouraged by regula- tion. 47 C.F.R. § 97.119(b)(2) (2003). ' 2002 ARRL November Sweepstakes Rules, QST, Oct. 2002, at 100. 8 HANDBOOK, supra note 5, at 30.40. 9 Id. at 30.38. 10 Amateur Radio Service, 47 C.F.R. pt. 97 (2003). it 47 C.F.R. § 97.15(b) (2003). 2004] AMATEUR RADIO COMMUNICATIONS 323 municipality successfully defended its regulation.12 The results of reported cases in this area, at first glance, seem to be all over the map, and for a number of years, the body of caselaw in this area had been unchanged since the Eighth Circuit's decision in Pentel v. City of Mendota Heights.13 This has changed within the past three years. In late 2001, two new decisions followed the reasoning of Pentel, invalidated restrictions im- posed on amateurs, and established some degree of consistency.14 In early 2003, another decision cited Pentel while upholding a zoning decision ad- verse to an amateur.15 All three decisions are of note both to zoning au- thorities and counsel for amateurs.16 This Comment seeks to familiarize practitioners and zoning authorities with amateur radio, the federal preemption of zoning regulations affecting antennas at amateur radio stations, and how courts and state legislatures have addressed this preemption. The principle of reasonable accommoda- tion will be stressed. Amateurs and their counsel must demonstrate that the system they desire is necessary to reasonably accommodate their commu- nications, while realizing that a municipality is not always required to grant their dream antenna system in order to achieve that goal. On the other hand, municipalities must provide reasonable accommodation in all cases, and may not impose a restriction that does not provide such accommoda- tion. If amateurs and municipalities approach these cases with this mind- set, costly litigation of the type explored here should almost always be 12 Compare Williams v. City of Columbia, 906 F.2d 994 (4th Cir. 1990) (sustaining South Caro- lina municipality's denial of special exception allowing amateur to construct a retractable antenna system varying in height from 28 to 65 feet where ordinance limited height to 17 feet), with Pentel v. City of Mendota Heights, 13 F.3d 1261 (8th Cir. 1994) (holding that Minnesota municipality's ord nance limiting antenna systems to 25 feet in height was preempted as applied to amateur seeking to improve an existing antenna system from an ineffective design at 56.5 feet to a more effective design at 68 feet). These cases are discussed further at Part III, infra. 13 13 F.3d 1261 (8th Cir. 1994). 14 See Palmer v. City of Saratoga Springs, 180 F. Supp. 2d 379 (N.D.N.Y. 2001) (holding that municipality's planning board failed to attempt to negotiate a compromise, and that municipality's zoning ordinance was preempted as a result); Marchand v. Town of Hudson, 788 A.2d 250 (N.H. 2001) (holding that lower court could not order amateur to dismantle three 100 -foot antenna structures, even while affirming lower court's finding that the towers were not an 'hccessory use" under the town's zoning ordinance). These cases are discussed in depth at Parts IV.A and W.B, infra. 5 See Bosscher v. Township of Algoma, 246 F. Supp. 2d 791 (W.D. Mich. 2003) (upholding planning commission's denial of application for a 180 -foot antenna structure when commission had attempted to negotiate a compromise). Bosscher is discussed in depth at Part IV.C, infra. 16 As this Comment goes to press, a fourth amateur radio antenna case is winding its way through the New Mexico appellate system. The New Mexico Court of Appeals, while finding that amateur radio towers were a permissive use in a rural residential zone, nevertheless upheld the revocation of a building permit issued to an amateur to construct two 140 -foot towers, holding that such a system was not a customarily incidental use. Smith v. Bd. of County Comm'rs, 82 P.3d 547 (N.M. App. 2003). Since amateur radio towers were held to be a permissive use, the court did not address the preemption issue that is the topic of this Comment. See id. at 552. However, certiorari was granted by the New Mexico Supreme Court. Id. at 547. The preemption issue may be addressed there. 324 CONNECTICUT LAW REVIEW [Vol. 37:321 avoided. Part II of this article will examine the basis and purpose of the amateur radio service, the various activities in which radio amateurs engage, and the necessity for radio amateurs to install antennas in order to pursue these activities. Part III will explore the Federal Communications Commission's (`FCC') establishment of the federal preemption in 1985, the wide range of litigation results from 1985 to 1994, and the FCC's recent administrative rulings regarding the preemption. Part IV will examine the recent deci- sions, distinguish them from previous decisions, and advocate that the ap- proaches adopted by the courts in these cases are correct. Part V will ex- amine legislation adopted by eighteen states incorporating the essence of the PRB-1 preemption into state statutes, giving municipalities guidance in implementing the preemption. In the concluding Part VI, I will suggest that parties to amateur antenna cases should avoid the pitfalls that trapped the losers in the published cases, calling on municipalities to realize their duties under PRB-1, and calling on amateurs to persuasively support the systems they request. II. AN AMATEUR RADIO PRIMER FOR PRACTITIONERS The basis and purpose of the amateur radio service in the United States is succinctly spelled out at the start of the FCC's appl icable rules: The rules and regulations in this part are designed to pro- vide an amateur radio service having a fundamental purpose as expressed in the following principles: (a) Recognition and enhancement of the value of the amateur serviceto the public as a voluntary noncommercial communication service, particularly with respect to providing emergency communications. (b) Continuation and extension of the amateur's proven ability to contribute to the advancement of the radio art. (c) Encouragement and improvement of the amateur ser- vice through rules which provide for advancing skills in both the communications and technical phases of the art. (d) Expansion of the existing reservoir within the ama- teur radio service of trained operators, technicians, and elec- tronics experts. (e) Continuation and extension of the amateur's unique 2004] AMATEUR RADIO COMMUNICATIONS 325 ability to enhance international goodwill." Amateur radio is therefore a hobby with some atypical purposes, which the federal government has seen important enough to codify. While most of the United States' nearly 700,000 radio amateurs'$ use their access to radio spectrum for recreational purposes,19 their activities routinely further the five principles in their service's regulatory basis and purpose. For e x - ample, amateurs continue to develop new modes of communication, most notably in the area of digital telegraphy (the transmission of data and text by wireless signals). Within the past decade, amateurs have developed systems to display the locations of stationary and mobile amateur radio stations on a map20 and a new digital mode which is remarkable in that it occupies a minuscule amount of radio spectrum, allowing numerous trans- missions within a limited amount of bandwidth?' Such innovations can be said to `bontribute to the advancement of the radio art." 22 Amateur opera- tors' responses to communications emergencies have been well doc u- mented in both the popular and amateur radio press.23 Government and industry officials have recognized the usefulness of the radio amateur's voluntary role in communications emergencies, and have provided funding to further train hams24 for such duties." While the enhancement of `ante r - national goodwill" is somewhat more difficult to doc ument, amateur radio communications are routinely conducted across international boundaries,26 and the common interest in communications among amateurs around the 17 Amateur Radio Service, Basis and purpose, 47 C.F.R. § 97.1 (2003). 18 As of September 7, 2004, 674,760 individuals hold a United States amateur radio license, ac- cording to statistics found at FCC License Counts, at http://www.arrl.org/fcc/stats.html (modified daily). 19 HANDBOOK, supra note 5, at 1.2-1.7. 20 See Bob Bruninga, Interfacing GPS or LORAN Devices to Packet Radio, QEX, Feb. 1994, at 9 (describing the Automatic Packet Reporting System). 21 See Peter Martinez, PSK3I: A New Radio -Teletype Mode, QEX, July/Aug. 1999, at 3. 22 47 C.F.R. § 97.1(b). 23 Amateur radio response in the wake of the September 11, 2001, terrorist attacks was substan- tial, as stations were established at recovery sites and shelters in New York City, at and near the Penta- gon, and in Pennsylvania. See Rick Lindquist, 9/11/01: 'This is Not a Test" , QST, Nov. 2001, at 28; Ken Valenti, Red Cross Seeks Volunteers, Money, WESTCHESTER J. -NEWS, Sept. 16, 2001, at 2B. 24 A 'ham" is an amateur radio operator. The term originated in the early days of amateur radio (also known as 'ham radio'). It is a generally accepted contraction for `hmateur." HANDBOOK, supra note 5, at 1.1. 25 See Thuy-Doan Le, Radio League Awarded Grant, HARTFORD COURANT, Apr. 1, 2003, at B3 (detailing $150,000 grant from United Technologies Corp. to the ARRL to fund training of amateur radio operators in Connecticut); Maurice Timothy Reidy, A Vital Calling Rewarded; Federal Grant Boosts Ham Radio Group, HARTFORD COURANT, Jul. 28, 2002, at B1 (reporting $181,900 homeland security grant from the Corporation for National and Community Service to the ARRL to fund training of 1,700 amateur radio operators nationwide). 26 HANDBOOK, supra note 5, at 2.1-2.2. 326 CONNECTICUT LAW REVIEW [Vol. 37:321 world does lend itself to a spirit of fraternalism. In their recreational pursuit of radio, hams are fulfilling the FCC's regulatory goals for the se rvice. A fundamental requirement for any amateur radio station is at least one antenna.27 The ideal size of an amateur radio antenna will vary with re- spect to the frequency the ham plans to use.28 While there are a number of methods an amateur can use to shorten the antennas he or she uses on rela- tively low frequencies, all antennas are usually more effective the higher they are off the ground 29 In order to achieve these heights, an amateur might need to build an artificial support, or tower. In the cases examined herein, the construction and maintenance of these supports is at issue. Aside from very limited cases, inapplicable to most amateurs, there are no federal restrictions on the construction of amateur stations and antenna systems.30 As a practical matter, amateurs must construct their antenna structures in accordance with local zoning ordinances, which can have very divergent provisions. Prior to the FCC's adoption of the preemption in 47 C.F.R. § 97.15(b), some amateurs found themselves simply out of luck when seeking to erect an antenna in the face of a hostile ordinance.31 The FCC's preemption statement,32 issued in 1985, changed the nature of the game. III. PRB-1 FROM ESTABLISHMENT TO 2001 A. The 1985 Preemption The 1985 preemption came after a mid -1984 Request for Issuance of a Declaratory Ruling from the ARRL to the FCC.33 While acknowledging that regulation of amateur radio installations was permissible for health and safety reasons, ARRL argued that such regulations could not preclude ef- fective amateur communications 34 Interested parties filed over 1,600 comments in the administrative proceeding,35 which considered both pub - 27 Id. at 20.1. 28 For instance, the ideal length in feet of a common type of amateur antenna, the half -wave an- tenna, is 468/f, where f is the frequency of transmission. A half -wave antenna for 7.15 MHz (the mid- point of the amateur 40 -meter band) is therefore 65.45 feet. Id. at 20.4. 29 See id. at 20.3. 30 The few that exist are codified at 47 C.F.R. §§ 97.13, 97.I5(a) (2003). They deal with stations on land of environmental or historical importance, near an FCC monitoring facility, or near an airport. 31 See, e.g., Guschke v. City of Oklahoma City, 763 F.2d 379 (10th Cir. 1985) (finding that regu- latory scheme did not suggest preemption of zoning ordinance restricting antenna height to 35 feet and denying constitutional claims). 32 Federal Preemption of State and Local Regulations Pertaining to Amateur Radio Facilities, 101 F.C.C.2d 952 (1985) [hereinafter PRB-1, which is the docket number assigned to the proceeding and how the preemption is referenced among amateurs and many courts]. 33 Id. 111. 34 Id. 35 Id. ¶ 2. 2004] AMATEUR RADIO COMMUNICATIONS 327 1ic36 and private' land use restrictions. ARRL was supported in its request by the Department of Defense,38 various chapters of the American Red Cross,39 and a few scattered munici- palities4° By and large, however, municipalities, through the National Association of Counties and the National League of Cities, opposed pre- emption.'[ These organizations urged that preemption would weaken the traditional local police power over zoning, and that whatever federal inter- est existed in amateur radio could be accommodated without a preemption statement.42 The Commission undertook a preemption analysis,43 noting the tension between the Tenth Amendment's reservation of unen umerated powers to the states44 and the preemptive authority of the Supremacy Clause45 In the absence of an express Congressional preemption, the FCC noted the hold- ing in Fidelity Federal Savings & Loan Ass'n v. de la Cuesta46 that a per- vasive congressional regulatory scheme could be presumed to be preemp- tive, and that federal regulations had the same preemptive effect as federal statutes.47 With this in mind, the FCC acknowledged that `bertain general state interests ... may, in their even-handed application, legitimately affect amateur radio facilities."48 However, the Commission felt justified in mak- ing a preemption statement based on the regulatory scheme found in Part 97 of its rules: [Part 97 sets] forth procedures for the licensing of stations and operators, frequency allocations, technical standards which amateur radio equipment must meet and operating practices which amateur operators must follow. We recog- nize the Amateur [R]adio [S]ervice as a voluntary, noncom- mercial communication service, particularly with respect to providing emergency communications. Moreover, the [A]mateur [R]adio [S]ervice provides a reservoir of trained 36 Id. 91113-6. 37 Id. 91917-9. 38 Id. 91 10. 39Id.9111. aoId.9112. 41 Id. 1119. 42 Id. 43 Id. 9120. 44 U.S. CONST. amend. X. as Id. art. VI, § 2. It is interesting to note that the FCC did not cite the Supremacy Clause cor- rectly in its preemption ruling, calling attention instead to art. III, § 2. PRB-I, supra note 32, 9f 20. 46 458 U.S. 141 (1982). 47 PRB-I, supra note 32,1120 (citing de la Cuesta, 458 U.S. at 153). 48 PRB-1, supra note 32, 91 24. 328 CONNECTICUT LAW REVIEW [Vol. 37:321 operators, technicians and electronics experts who can be called on in times of national or local emergencies. By its nature, the Amateur Radio Service also provides the opportu- nity for individual operators to further international goodwill. Upon weighing these interests, we believe a limited preemp- tion policy is warranted 49 In language that proved contentious in early litigation, the FCC said it was appropriate to `strike a balance" between the federal and local inte r- ests5° Its attempt to strike such a balance was the `feasonable accomm o - dation" principle. 51 While declining to specify a height below which a mu- nicipality could not regulate, the FCC came up with this test: `IL]ocal regulations which involve placement, screening, or height of antennas based on health, safety, or aesthetic considerations must be crafted to ac- commodate reasonably amateur communications, and to represent the minimum practicable regulation to accomplish the local authority's legit i - mate purpose."52 B. Early PRB-1 Cases PRB-1 had an immediate effect on ongoing amateur radio tower litiga- tion, most notably on the Sixth Circuit's consideration of Thernes v. City of Lakeside Park.53 Oral arguments in Thernes were heard on the very day the FCC issued its PRB-1 decision.54 The plaintiff amateur operator was contesting the validity of Lakeside Park, Kentucky's, Zoning Ordinance, which both sides agreed absolutely prohibited the erection of amateur radio antenna towers.55 Thernes appealed after the district court, in an unre- ported decision, denied his claim of preemption because 'the FCC evinced no intent to supplant the fundamentally local concerns expressed in land 49 Id. (altered where indicated to standardize the FCC's curious use of three distinct capitaliza- tions of the phrase `Amateur Radio Servi ce" within three consecutive sentences). 50 Id. 9122. 5' Id. An early student writer on this topic misinterpreted the concept of `Yeasonable accomm °- dation" as applicable to both Local and federal interests. See Alice J. Schwartz, Note, Federal Preemp- tion of Amateur Radio Antenna Height Regulation: Should the Sky Be the Limit?, 9 CARDOZO L. REV. 1501, 1526 (1988). The plain language of the preemption imposes the duty of reasonable accommoda- tion on the zoning authority. PRB-1, supra note 32, 9125; 47 C.F.R. § 97.15(b) (2003). Schwartz also seized on the `ktrike a balance" language in PRB -1 a to argue that 'la] reasonable accommodation standard necessitates weighing both state and federal interests to assess which should prevail." Schwartz, supra, at 1503; see also id. at 1510-26 (listing eight paragraphs of purported state interests, one paragraph of federal interests, concluding that the balance favors state interests, and dismissing amateur radio as `Ynerely a hobby'). Such a balancing test has been rejected by a plurality of circuits and the FCC. See discussion infra Parts IIID -E. 52 PRB-1, supra note 32, 9125. 53 779 F.2d 1187 (6th Cir. 1986). 54 Id. at 1188. 55 Id. at 1187-88. 2004] AMATEUR RADIO COMMUNICATIONS 329 use control ordinances.s56 Two judges of a three-judge panel vacated the decision of the district court and remanded the case, noting, 'This recent exercise of its latent preemptive ... powers by the FCC strongly suggests that the ban upon the erection of amateur radio station antennas ... may now contravene federal law.i57 The third judge was less kind to Lakeside Park; in dissent, he suggested the lack of a rational basis for the ordinance in question58 and indicated he would reverse the district court outright and award costs and attorney's fees. 59 Perhaps motivated by the specter of such an award on remand, Lakeside Park eventually settled on terms favorable to Thernes.60 Themes involved the rather open-and-shut case of an absolute prohibi- tion on amateur antenna towers. PRB-1 clearly disallowed such prohibi- tions, but even marginally permissive ordinances were struck down in a series of cases following Themes. The leading case with respect to a mini- mally permissive ordinance is Bodony v. Incorporated Village of Sands Point.61 The plaintiff amateur radio licensee in Bodony challenged Sands Point's rigid application of a 25 -foot limit on `accessory buildings," i n- cluding amateur radio towers.62 He desired to erect a retractable antenna structure, 23 feet in height when retracted and 86 feet in height when ex- tended.63 Sands Point's Zoning Board denied his application for a variance from the height limitation, citing the following reasons: Within the Village of Sands Point there are several resi- dents who operate amateur radio stations with towers and an- tennas which conform to the height restrictions of the Build- ing Zone Ordinance of the Village and communicate at fre- quent intervals. The applicant has failed to demonstrate that he cannot operate an amateur radio station with an antenna which con- forms to the height restriction in the Building Zone Ordi- nance and that he has suffered any hardship. 56 Id. at 1188 (internal quotations omitted). 57 Id. at 1189. 58 See id. at 1189-90 (Krupansky, J., dissenting). 59 Id. at 1191. 60 See Themes v. City of Lakeside Park, 62 Rad. Reg. 2d (P&F) 284, 285-86 (E.D. Ky. 1987) (summarizing agreement to award damages to Themes and allow him two antennas on a support struc- ture totaling 73 feet in height). 61 681 F. Supp. 1009 (E.D.N.Y. 1987). 62Id. at 1010. 63 Id. 330 CONNECTICUT LAW REVIEW [Vol. 37:321 The applicant has failed to prove that the tower and the antenna thereon is [sic] safe. The proposed construction of the tower and antenna would (a) depreciate the value of the property of the Village; (b) create a hazard to health, safety and general welfare; (c) be detrimental to the character of the neighborhood or to the residents thereof; (d) alter the essential character of the neighborhood, or (e) otherwise be detrimental to the public convenience and welfare. Bodony then initiated litigation, claiming a violation of the PRB-1 pre- emption and asserting various constitutional claims.65 Bodony moved for summary judgment on the PRB-1 claim,66 and Sands Point moved for dis- missal `bn the ground that the Zoning Board did not act arbitrarily or u n - reasonably ....s67 After quoting extensively from PRB-1, Judge Mishler concluded that the FCC regulation required Sands Point to "vary the ordinance ... so that [Bodony] may use the license granted him by the F.C.C. for international communications, and [use] the least restrictive height to accomplish its `legitimate purpose."' 68 Turning to the Zoning Board's action, the Court immediately took issue with Sands Point's assertion that a 25 -foot limita- tion falls outside the preemptive effect of PRB-1, because communications would not be precluded.69 After discussing the effects of antenna height on communications effectiveness, the Court held that an argument that com- munication is not precluded is not the answer to a claim of preemption."' Judge Mishler noted that the Zoning Board did not consider a greater height that would `accomplish [their] legitimate purpose" 71 and said the record before the Zoning Board clearly established that the 25 -foot limit was inadequate for Bodony's purposes. 72 64 Id. (error designation in original). 65 Id. at 1010-11. 66 Id. Bodony also sought summary judgment on two constitutional claims. Id. The court de- clined to address the constitutional claims. Id. at 1013 n.3. 67 Id. at 1011. 68 Id. at 1012. See id. (stating as fact that building ordinance tloes not prohibit amateur commun ications'). 70 Id. 71 Id. 72 Id. at 1013. The record before the Zoning Board was summarized by the court: Testimony of experts indicates that a height of 60 to 70 feet is necessary for good re- ception under ideal atmospheric conditions. One Carl Silar, an amateur radio opera- tor, stated that he received communications worldwide using an antenna which was less than 25 feet. He conceded 50 feet, 60 feet or 70 feet would achieve a better re- sult. 2004] AMATEUR RADIO COMMUNICATIONS 331 The Court also found that the record failed to sustain the Zoning Board's health, safety, welfare, and property valuation arguments.73 Par- ticularly dismissing any aesthetic concerns, Judge Mishler noted, 'It is uncertain how the ... antenna system will affect the outward appearance or aesthetic harmony of the neighborhood, given the proposed shielding of the system by trees.s74 Finding that `tt]he action of the Zoning Board is d e - void of any effort to make a reasonable accommodation,s75 the Court found that the ordinance was preempted as applied to Bodony.76 Other decisions favorable to amateurs followed in the next four years.77 In its early years, PRB-1 was proving to be a very useful tool to amateurs fighting adverse zoning decisions. The tide was rising, but sooner or later, tides tend to turn. C. Williams and the Balancing of Interests Doctrine The tide turned in the Fourth Circuit case of Williams v. City of Co- lumbia.78 Finding that the plaintiff could communicate, albeit ineffec- tively, the court upheld the validity of a 17 -foot height limitation.79 Ac- cording to unreported details of the trial, the plaintiff was not helped by his failure to make an effective technical case for need.80 Testimony from the Chairman of the Electrical Engineering Department at the University of South Carolina that communications, albeit degraded, were possible within the confines of the ordinance was `Very damaging." 81 Further, the fact that Williams did not participate in emergency relief activities was apparently not favorably received by the Zoning Board of Adjustment CZ BA').' There seems to be consensus among amateur radio attorneys that Williams Id. at 1013 n.2. The record before a municipal zoning board is often determinative in these cases, and I argue that it should be. See discussion infra Parts III.C, IV.C. 73 Id. at 1013. 74 Id. 75 Id. (internal quotation omitted). 76 Id. at 1013. The Court also ruled that there were material issues of fact with respect to whether the Zoning Board acted arbitrarily and capriciously. Id. at 1013-14. 77 See Howard v. City of Burlingame, 937 F.2d 1376, 1380 (9th Cir. 1991) (requiring municipal- ity to `consider[] the application, ma[k]e factual findings, and attempt[] to negotiate a satisfactory compromise with the applicant'); Izzo v. Borough of River Edge, 843 F.2d 765 (3d Cir. 1988) (uphold- ing the validity of the federal interest stated in the PRB-1 preemption and prohibiting district court from abstaining in a state law zoning matter); MacMillan v. City of Rocky River, 748 F. Supp. 1241 (N.D. Ohio 1990) (finding facially valid ordinance invalid as applied when municipality denied permit for 30 - foot antenna system); Bulchis v. City of Edmonds, 671 F. Supp. 1270 (W.D. Wash. 1987) (finding ordinance requiring conditional use permit for heights above 25 feet to be procedurally defective). 78 906 F.2d 994 (4th Cir. 1990). 79 Id. at 995, 999. 80 FRED HOPENGARTEN, ANTENNA ZONING FOR THE RADIO AMATEUR A.14 (2001) 81 Id. 82 Williams, 906 F.2d at 998. 332 CONNECTICUT LAW REVIEW [Vol. 37:321 could have presented a better case. However, an amateur's problem with the Williams decision goes be- yond the lackluster case advanced by the plaintiffs. Seizing on the `strike a balance" language in the original PRB -1 decision,83 the Fourth Circuit sug- gested the appropriate test was to balance municipal zoning objectives with amateur communications needs in coming to a result.84 'The law requires only that the City balance the federally recognized interest in amateur radio communications with local zoning concerns," the court held. 85 This sug- gested that `Ye asonable accommodation" would be found if a municipality engaged in this balancing, even if the resulting antenna system was ineffec- tive (hardly a `seasonable accommodation" from the amateur's standpoint). If this view that a balancing of interests was sufficient to meet a municipal- ity's obligations under PRB -1 were to take hold, then a municipality could conceivably justify any height restriction by citing a municipal interest, applying great weight to it in a balancing test, and taking advantage of the minimal `arbitrary and capricious" and `hlearly erroneous" standards of review for findings of fact.86 Clearly, amateurs would seek to limit the expansion of the Fourth Circuit's balancing doctrine. D. Evans and Pentel: Balancing of Interests Rejected by the Tenth and Eighth Circuits While the Fourth Circuit planted the seed of the balancing approach, it has not taken root in other circuits. Such an approach was explicitly re- jected in the final two reported amateur radio antenna cases before a seven- year hiatus, Evans v. Board of County Commissioners87 and Pentel v. City of Mendota Heights.88 Oddly enough, the rejection of the balancing test was not dispositive: the two cases did not come out the same way. Evans came first. The Tenth Circuit nicely summarized the case: `E v- ans desired a tower 100 feet high; the County decided thirty-five feet was sufficient; and the district court decided eighty feet was just right.s89 The circuit court, wryly noting at the outset the vagueness of the regulations, reviewed de novo9° Boulder County characterized its responsibility to 83 Id. at 997 (quoting PRB-1 1 22). 84 Id. at 998. 85 Id. 86 See id. at 996 (using these standards in Williams). 87 994 F.2d 755, 762-63 (10th Cir. 1993). 88 13 F.3d 1261, 1264 (8th Cir. 1994). 89 Evans, 994 F.2d at 757. 90 See id. at 760 (noting with respect to the PRB-1 ruling, 'The regulations attempt to s trike a compromise between two competing interests and, as is true of many compromises, have omitted the details leaving both sides the impression they received the biggest piece of the divided cake'). 2004] AMATEUR RADIO COMMUNICATIONS 333 reasonably accommodate as a balancing test.s91 The court disagreed, re- jecting the Fourth Circuit's finding that balancing was all that was re- quired.92 'We believe the balancing approach underrepresents the FCC's goals as it specifically selected the `reasonably accommodate' language." 93 The first step away from Williams had been made. Nevertheless, the Tenth Circuit found that the district court afforded the county too little discretion and found against Evans.94 Unlike Bodony95 and Bulchis v. City of Edmonds,96 there was evidence in the record that Boulder County negotiated with Evans 97 Even though the court concluded that the compromise offered—a 60 -foot retractable tower—was of 'Ueba t- able viabilitys98 due to high winds that were common in the area, it held that this potentially unviable compromise constituted reasonable accom- modation.99 According great deference to the County's finding that veget a- tive screening would take ten years to be effective,10° the court held that the county's denial of Evans's permit 'Was the minimum practical regulation necessary to accomplish their goals."10' The court did not address whether any of the compromises discussed by Evans and the County would have been both viable and effective, abruptly stopping its work upon finding that the County's efforts alone constituted reasonable accomm odation.102 While the result in Evans is a hollow defeat of the Williams balancing doctrine from an amateur's standpoint, Pentel was much more satisfying. Plaintiff Sylvia Pentel already had a vertical antenna system on her roof, totaling 56.5 feet in height above ground level.'03 She applied for a permit to build a retractable steel tower, 30 feet high when lowered and 68 feet high when extended.104 The ineffectiveness of her existing antenna system and the improvements that her proposed system would make were docu- 91 Id. at 762. 92 Id. at 762-63. 931d. 941d. at 761-63. 95 See discussion supra Part III.B. 96 671 F. Supp. 1270 (W.D. Wash. 1987); see supra note 77. 97 994 F.2d at 762. 98 Id. 99M. 1 °° See id. at 757, 762. lol Id. at 763. 102 Id. The reader is left to wonder what might have happened had Evans and the county yielded just a bit more on their Last compromise, with Evans accepting the 60 -foot height and the County allow- ing for a permanent tower. 103 Pentel v. City of Mendota Heights, 13 F.3d 1261, 1262 (8th Cir. 1994). 1041d. 334 CONNECTICUT LAW REVIEW [Vol. 37:321 mented in the record.t05 The city denied Pentel's permit application, stat- ing no factual findings and giving no reasons for the denial.106 Mendota Heights attempted reasonable accommodation by issuing a special use permit for her already existing and ineffective antenna.107 Pentel sued, claiming that the city had failed to provide reasonable accommodation.108 Pentel appealed the district court's grant of summary jud gment to the city.109 The Eighth Circuit then summarized the ways in which PRB-1 may preempt a local ordinance)'0 It found that an ordinance was preempted on its face if it 'bans [or] imposes an unvarying height restriction on amateur radio antennas.si11 Since the Mendota Heights ordinance allowed for a special use exception to the 25 -foot height restriction, it passed this test.112 The court then found that an ordinance was invalid as applied if the or- dinance is not `tapplied in a manner that reasonably acco mmodates amateur communications.s13 It then addressed the Williams balancing test and squarely rejected it—holding that the FCC had already done the balancing: At various places in PRB-1, the FCC states that, in con- sidering the issue before it, it weighed federal and amateur operator interests against those of local governments. After balancing these interests, the standard that the FCC con- cluded was appropriate was that a local government must rea- sonably accommodate amateur radio communications.14 The court found that there was a clear distinction between reasonable accommodation and a balancing of interests."' 'This distinction is impo r- 105 Id. ('Pentel was unable to establish reliable radio communications with other amateurs across the United States [using the 56.5 -foot antenna], and she was able to establish only one international contact.'). Pentel's proposed antenna would be more effective than her existing set-up for two reasons. First, Pentel's current vertical antenna dissipates signals in all directions, while her proposed directional antenna would concentrate and collect signals, thus increasing her ability to transmit and receive in a specific direction. Second, an an- tenna's effectiveness increases with its height. Pentel's existing antenna is blocked by trees. Her taller replacement antenna, when extended, would be at or near the tops of nearby trees, thus improving her signal transmission and reception. Id. at 1262 n.1. 106 Id. at 1262. 107 Id. at 1262-63. 108 Id. at 1263. 109 Id 1101d. at 1263-64. 111 Id. at 1263. 112 Id. 113 Id. 114 Id. at 1264 n.5. 115 Id. at 1264. 2004] AMATEUR RADIO COMMUNICATIONS 335 tant, because a standard that requires a city to accommodate amateur com- munications in a reasonable fashion is certainly more rigorous than one that simply requires a city to balance local and federal interests when de- ciding whether to permit a radio antenna.s16 While holding that this standard did not `allow the amateur to erect any antenna she desires,s17 the court did adopt the requirements of the Ninth Circuit's decision in Howard v. City of Burlingame.18 Applying Howard, the court found that Mendota Heights was required to `bonsider the application, make factual findings, and attempt to negotiate a satisfac- tory compromise with the applicant."' `9 Citing the city's failure to make factual findings and the lack of support in the record for the concerns raised in the planning hearings, the court found that allowing an existing, ineffective antenna installation did not reasonably accommodate Pentel's amateur radio communications.120 Reversing the district court, the Eighth Circuit granted summary judgment to Pentel and ordered Mendota Heights to reasonably accommodate her interests.121 Thus, two circuits have explicitly rejected the Williams balancing doc- trine. However, the Evans and Pentel decisions differ in result because they disagree on the question of whether an ineffective accommodation constitutes a reasonable accommodation. It was not until 2001, when Pen- tel—not Evans—was followed in two reported cases, that courts would answer that question—correctly—in the negative.'22 E. The 1999 Preemption Affirmation: Balancing of Interests Rejected by the FCC In 1996, the ARRL sought to strengthen the PRB-1 preemption.123 In 1999, the FCC declined to do so, but not without some benefit to amateur radio operators. While the FCC declined to extend the preemption to pri- 116 Id. 117 Id. 118 937 F.2d 1376, 1380 (9th Cir. 1991). 119 13 F.3d at 1264 (internal quotations and alterations omitted). 120 Id. at 1264-65. 121 Id. at 1266. 122 See discussion infra Part IV.A–B. 123 See Modification and Clarification of Policies and Procedures Goveming Siting and Mainte- nance of Amateur Radio Antennas and Support Structures, and Amendment of Section 97.15 of the Commission's Rules Goveming the Amateur Radio Service, 14 F.C.C.R. 19,413 9 1 (1999) [herei nafter PRB-1 Clarification]. Among the requests denied by the FCC was a request to apply PRB-1 to private land use restrictions, such as covenants. See id. 91 3. This Comment does not address such private restrictions. For a student -written work that does, see Frank A. Tomasello, Jr., Note, Regulation of Amateur Radio Antenna Height, Restrictive Covenants and Local Regulation: Is the Ham's Goose Cooked?, 16 RUTGERS COMPUTER & TECH. L.I. 227, 240-52 (1990) (arguing—persuasively—that PRB-I should have preempted applicable covenants). 336 CONNECTICUT LAW REVIEW [Vol. 37:321 vate land use restrictions (covenants, conditions, and restrictions)124 and also refused to establish a blanket height below which state and local gov- ernments could not regulate,125 the FCC rejected the balancing of interests approach adopted by the Williams court as inappropriate.'26 Citing the plain language of the preemption regulation, the FCC found that the reasonable accommodation standard was `1)recisely stated" in the 1985 decision.127 Citing the portion of the decision requiring zoning regu- lations to `accommodate reasonably amateur communications, and to re p- resent the minimum practicable regulation to accomplish the local author- ity's legitimate purpose," the FCC concluded that in light of this `bxpress Commission language, it is clear that a `balancing of interests' approach is not appropriate in this context.s128 While couched as a denial of ARRL's request,129 paragraph seven of the PRB-1 clarification left no doubt as to the Commission's rejection of the Williams balancing test. When considering the validity of a zoning regulation affecting amateur communications, a municipality must, at an absolute minimum, reasonably accommodate amateur radio communica- tions. Further, any restriction enacted must be the minimum practicable to further the municipality's legitimate interest. To su rvive, a regulation must pass a two-pronged test. Does it reasonably accommodate amateur com- munications? If so, is it the minimum practicable regulation necessary for a legitimate municipal purpose? It is against this backdrop that the most recent amateur antenna cases have been decided. IV. PRB-1 REVISITED: PALMER, MARCHAND, AND BOSSCHER From the Pentel ruling in 1994 through 2001, no opinions resolving amateur antenna structure litigation were published, leaving uncertainty whether the results in Pentel and Themes or the results in Evans and Wil- liams were to be more common. In late 2001, two decisions adopted the Pentel approach to the problem and yielded results favorable to the ama- teur.130 In early 2003, an amateur -adverse decision was reported for the 124 PRB-1 Clarification, supra note 123, 9[ 6. 125 Id. 918. 126 M.117 . 127 Id. 128 Id. 129 Id. 130 Palmer v. City of Saratoga Springs, 180 F. Supp. 2d 379, 384-85 (N.D.N.Y. 2001); Marchand v. Town of Hudson, 788 A.2d 250, 254 (N.H. 2001); see generally Brennan Price, A Tale of Two Pre- emption Policies, QST, Mar. 2002, at 90-91 (summarizing the aforementioned cases before they were published in the West Reporters). The Palmer and Marchand cases are discussed, respectively, in Parts IV.A and IV.B, infra. 2004] AMATEUR RADIO COMMUNICATIONS 337 first time since Evans,131 but the opinion relied on both Pentel and Williams for support.132 Despite the lack of unanimity of support for the amateurs' claims, the three cases provide valuable lessons to municipalities and ama- teurs alike. A. Palmer v. City of Saratoga Springs'33 Randall Palmer moved to Saratoga Springs, New York, in 1998, and sought to construct a retractable tower that would measure 47 feet in height when extended.134 The Zoning Ordinance of Saratoga Springs provided that `tn]o such antenna ... shall exceed, in any dimension, twenty (20) feet in height, width or depth" without a special use permit. 135 More than five months after Palmer applied for such a permit, the Saratoga Springs Plan- ning Board denied his application, finding that Palmer had failed to meet four special use standards: # 3: That the public health, safety, welfare or order of the City will not be adversely affected by the proposed use in its location. # 6: That the [sic] conservation of the property values and the encouragement of the most appropriate use of the land. # 12: That the proposed use will not interfere with the preservation of the general character of neighborhood in which such building is to be placed or such use is to [sic] conducted. # 17: Whether the proposed special use provides land- scaping and/or other forms of buffeting to protect surround- ing land uses.'36 Palmer filed suit soon thereafter, but the action was held in abeyance after Palmer agreed to provide the Planning Board with more information in exchange for reconsideration of his application.137 In addition to provid- ing more information, Palmer agreed to further concessions, offering to reduce the number of antennas on the tower, retract the antenna when not 13' Bosscher v. Township of Algoma, 246 F. Supp. 2d 791, 793 (W.D. Mich. 2003) (discussed at Part IV.C, infra). 132 See id. at 800. 133 180 F. Supp. 2d 379 (N.D.N.Y. 2001). 1341d. at 380. 135 Id. at 380 n.2 (alteration in original). 136Id. at 380-81. 137 Id. at 381. 338 CONNECTICUT LAW REVIEW [Vol. 37:321 in use, and install screening to minimize visual impact.138 Despite these concessions, the Planning Board asked Palmer to plant nine trees at a cost of $4,585 and operate his radio only at night.139 Palmer agreed to plant four trees at a cost of $1,160, but declined to curtail his operation to night- time hours, indicating that the bands on which he wished to operate were more favorable in daylight hours.140 Finally, in February 2001, more than two years after his initial application, the Planning Board rejected Palmer's application, going so far as to take a gratuitous swipe at the FCC's preemp- tion policy along the way: 'The Board[,] excep ting for the intrusion of the FCC regulations on local police power[,] would not consider this project acceptable on this specific site because of the site's small size, high visibi 1- ity within the neighborhood and close proximity of neighboring resi- dences.s141 Palmer then continued his lawsuit.'42 Judge Mordue, in rendering the opinion, acknowledged PRB-1's pr e- emptive effect and proceeded to apply the three-part Pentel test to Palmer's case.143 Mordue ruled that Saratoga Springs had satisfied the first two prongs: the obligations to consider the application and make factual find- ings.144 On the third prong, Saratoga Springs decisively lost, as the court held that 'the record here clearly proves that the Planning Board did not attempt to negotiate a satisfactory compromise with Palmer.s145 Judge Mordue's rationale details the lack of good -faith negotiation: '[T]he Pla n- ning Board never tried to work out a satisfactory compromise with Palmer. Rather, the Planning Board engaged Palmer in a strictly one-sided negotia- tion consisting of inflexible demands and the construction of hoop after hoop for Palmer to jump through.s146 Mordue noted that Palmer complied with many of the Planning Board's requests for inform ation, and found that the requests Palmer declined to agree to were 'ilnreasonable on their face.s147 Perhaps most persuasively, Mordue cited the Planning Board's own written decision as evidence that compromise was completely off its 138 Id. at 382. 139 Id. (error designations in original). 140 Id. 141 Id. 142 Id. at 383. 143 Id. at 384-85. 144 Id. at 385. 145 Id. 146 Id. (emphasis in original). 147 Id. Among the requests deemed unreasonable: Palmer refused to only operate his antenna at night because the 20 through 10 meter bands he communicated on were virtually useless after dark. Likewise Palmer re- fused to spend roughly $4500 on vegetative screening when $ 1100 worth of trees would satisfy this demand. Lastly, Palmer refused to give the Planning Board any additional information on the issue of interference for the simple reason that the is- sue of possible interference was beyond the Board's purview. Id. 2004] radar: AMATEUR RADIO COMMUNICATIONS 339 In addition to relying on Palmer's failure to comply with the Planning Board's various mitigation requests ... the wri t - ten decision also cites three other untenable grounds justify- ing the denial. First, the Planning Board faults Palmer for not proving that the fence he agreed to erect around the tower would `adequately" keep children and neighborhood pets from accessing the antenna tower. Second, the Planning Board indicates that Palmer failed to prove that the antenna tower can be operated in a safe manner. These first two grounds not only place upon Palmer the unfair task of de- bunking the Planning Board's groundless assumptions, but the record indicates the Planning Board never even asked him to address these specific issues. Last, and perhaps most in- dicative of the Planning Board's rigidity to negotiation, the written decision states that while Palmer agreed to lower the antenna when not in use, that agreement places an `ilnnece s- sary burden" o n his neighbors to enforce. The Planning Board's reliance on this ground is obviously indefensible and yet another `§tretch" to deny Palmer his right to reasonable accommodation.'48 Having found the Planning Board's findings indefensible, Judge Mo r - due found for Palmer and took the unusual step of ordering Saratoga Springs to grant Palmer's application. 149 Palmer is important for two rea- sons. First, it validates the Pentel approach to determining the validity of an amateur radio zoning restriction. Second, it emphasizes that an overtly hostile and closed -minded zoning authority cannot be found to have met the Pentel requirement of attempting to negotiate a satisfactory compro- mise with the amateur radio operator. B. Marchand v. Town of Hudson'5° Marchand is unique in that the amateur and the town were on the same side.15' It is also unique in that this is the only reported PRB-1 decision by a non-federal court. The amateur in Marchand, Jeremy L. Muller, applied for and was granted a building permit to construct three 90 -foot towers, 148 Id. at 386. 149 Id. Normally, the Court would simply instruct the Planning Board to comply with PRB -I. However, given that the Planning Board was already fully apprised of its duties under PRB-1 when it reconsidered Palmer's application, such action would likely be futile." Id. 150 788 A.2d 250 (N.H. 2001). 151 See id. at 251 (noting that defendant town had granted a permit to the intervenor amateur radio operator). 340 CONNECTICUT LAW REVIEW [Vol. 37:321 which would total 100 feet in height when antennas were added.152 Mul- ler's neighbor, Suzanne Marchand, appealed the grant to Hudson's ZBA. 153 The ZBA held firm, citing PRB-1 as incorporated in New Hampshire's amateur radio antenna statute.154 Marchand then appealed to a New Hamp- shire superior court, which held, in a manner reminiscent of Williams, that the large scale of Muller's installation `would upset the ba lance between the federal interest in promoting amateur operations and the legitimate in- terest of local governments in regulating local zoning matters.s155 The su- perior court revoked the building permit and ordered Muller to dismantle his towers.156 Muller and the Town of Hudson appealed on state zoning law and fed- eral preemption grounds.157 While the New Hampshire Supreme Court held that Muller's installation was of sufficient scope that it was no longer a routinely permitted `accessory use," 158 it found for Muller and the town on PRB-1 grounds.159 The court agreed that `the superior court' s order to remove all three radio towers, thereby preventing all ham radio operation by Muller, fail[ed] to preserve the FCC's legitimate interest in promoting amateur radio operations.s160 Citing PRB-1 and New Hampshire's codif i - cation thereof,161 the court found a `blear directive" in the FCC's statement that `ts]tate and local regulations that operate to preclude amateur comm u- nications ... are in direct conflict with federal objectives and must be pre- empted."162 Noting the superior court's balancing la nguage, the supreme court agreed with the Eighth Circuit's Pentel finding That the federal d i- rective requires municipalities to do more.s163 Therefore, the lower court was found to have applied the zoning ordinance in contravention of PRB- 1.164 Noting Pentel's f act -finding requirement, the supreme court re- manded the matter to the Town of Hudson ZBA to determine if the three towers were necessary as a reasonable accommodation of amateur radio 152 Id. 1531d. 154 See id. at 251-52. 155 Id. at 252 (internal quotations omitted). 156 Id. 157 Id. at 252-53. 158 Id. 159 Id. at 253. 160 Id. 161 Id. 162 Id. at 254. 163 Id. 164 Id. 2004] AMATEUR RADIO COMMUNICATIONS 341 communications from Muller's property.165 Marchand illustrates two propositions. First, an extensive antenna sys- tem might be required as a reasonable accommodation of amateur radio communications, and the prohibition of such an installation may be blocked by the `minimum practicable regulation" standard. The inquiry is site specific and use specific. New Hampshire is a heavily wooded, moun- tainous, largely rural area. The heights sought by Muller might very well have been necessary to overcome obstructing terrain, and the rural, isolated nature of the property probably rendered any aesthetic objections trivial. If multiple antenna towers are sufficiently screened and removed from the property line to render them undetectable, it is difficult to contend that a prohibition on aesthetics grounds constitutes `minimum practicable r egula- tion." Second, Marchand indicates that PRB-1 applies not only to munici- pal zoning boards, but also to state courts when applying zoning law. The requirement of reasonable accommodation reaches all three branches of state and municipal government. C. Bosscher v. Township of Algoma'66 While late 2001 brought two cases with favorable outcomes to ama- teurs in Palmer and Marchand, early 2003 saw the Bosscher decision, the first reported case with an outcome adverse to the amateur since Evans. Without reading the facts of Bosscher, one might conclude that judicial confusion over the extent of the PRB-1 preemption continues. However, the unique facts of Bosscher belie the presumption of confusion. Bosscher is a perfect tutorial for an amateur radio operator who wants to lose his claim. Judge McKeague opened his opinion with a fairly nice summary of the radio propagation methods key to the case. While his summary is not completely accurate;167 he nicely described two prominent modes of com- munication above 50 MHz: simplex communications, characterized by a 165 Id. at 254-55. According to Muller's attorney, the ZBA found on remand that the unique n a- ture of Muller's property and communications needs necessitat ed the three towers as reasonable ac- commodation. See e-mail from Mike Raisbeck, Attorney for Muller, to author (Sept. 14, 2004) (on file with the Connecticut Law Review). 166 246 F. Supp. 2d 791 (W.D. Mich. 2003). 167 As an example, Judge McKeague stated that "amateur radio signals `travel' in many different ways—including bouncing off the sun." Id. at 793-94. In fact, the most prevalent mode of amateur radio communication between 3 and 40 MHz is by bouncing signals off the ionosphere, a portion of the earth's atmosphere filled with layers of charged gas particles. While the effectiveness of this mode is a function of solar activity (see generally HANDBOOK, supra note 5, at 21.3-21.19), radio signals are not bounced off the sun. Judge McKeague is not that far off, however. Amateurs do bounce signals off the moon. See generally id. at 23.48-23.56. Finally, Judge McKeague refers to amateurs as HAMs—as if the contraction 'ham" were an acronym. 246 F. Supp. 2d at 793. It is not. See HANDBOOK, supra note 5, at 1.1. 342 CONNECTICUT LAW REVIEW [Vol. 37:321 direct path from point to point,l68 and communications through repeaters, which are third party, usually automated relay stations.169 Bosscher, the plaintiff amateur radio operator, lived in Algoma Township, Michigan, 792 feet above sea level.170 His property was separated from Grand Rapids, Michigan, by a ridge 2.72 miles to the south and 906 feet above sea level."' In an effort to overcome the obstruction and communicate via simplex with amateur radio operators in Grand Rapids, Bosscher sought a special use permit to construct a 180 -foot tall tower on his property.172 The township's Planning Commission expressed concern about the proposed installation, considered recommendations by Bosscher's engineer, and hired another engineering firm to review those recommendations.13 Boss- cher's applic ation was ultimately denied, resulting in the case before the District Court.14 Bosscher brought claims of a due process violation, a First Amendment violation, and a violation of the PRB-1 preemption. The first two claims are beyond the scope of this Comment; suffice it to say that the township was granted summary judgment on both claims.15 More interesting is the township's summary judgment victory on the PRB -1 preemption claim. Judge McKeague correctly identified the question to be decided, `whether the Algoma Township Planning Commission, in the application of its ordinances, provided for the reasonable accommodation of amateur radio communications.s16 Holding that the Planning Commission did, McKeague noted that 'the record is devoid of any evidence that the Co m - mission's denial ... will prevent plaintiff from communicating with other amateur operators."177 The court noted that an attempt to compromise with 168 'Essential to simplex communication is that the radio signal travel 'line of sight' directly from one operator to another without obstruction by land, trees, or buildings." Bosscher, 246 F. Supp. 2d at 794. 169'q his method allows two operators who cannot establish simplex ... to communicate ... . [E]ach repeater operates only on a specified frequency. As a result, only one conversation may occur at a time and others ... must wait their turn." Id. There are nearly 20,000 repeaters in operation across the United States and Canada, and the author of this Comment has edited an annual reference publica- tion listing many of them. See generally THE ARRL REPEATER DIRECTORY (Brennan Price ed., 32d ed. 2003). 170 Bosscher, 246 F. Supp. 2d at 794. 171 Id. 172 Id. 173 Id. at 794-95. 174 Id. at 795. 175 It likely that PRB-1 does not create an individual civil right, the denial of which results in a due process violation and the triggering of § 1983 liability. See, e.g., id. at 796-99. It is also likely that a zoning action restricting an amateur radio installation does not constitute a violation of the First Amendment. See, e.g., id. at 799-800. 176 Id. at 800. 177 Id. at 801. 2004] AMATEUR RADIO COMMUNICATIONS 343 Bosscher, through the suggestion of a crank -up tower, was made.178 It noted that testimony in the record indicated (correctly) that use of repeaters was the norm, not the exception to simplex communication, in actual prac- tice of amateurs transmitting from disadvantageous locations.19 Finally, evidence in the record (again correctly) pointed out that Bosscher's pr o- posal was `pie in the sky," unlikely to work at the proposed transmitter power and tower height.180 In the end, McKeague found that the Planning Commission considered the relevant law, offered compromises, conducted independent assessment of the application, and made detailed findings in support of its denial of Bosscher's application. 181 Algoma Township scored a complete victory, but that victory was due to its efforts to make reasonable accommodation and richly assisted by Bosscher's technically dubious request and intrans i- gence when presented with alternatives. D. Lessons from Palmer, Marchand, and Bosscher Palmer and Marchand should leave no doubt that the PRB-1 preemp- tion is alive and well, despite the dearth of reported decisions since Pentel. Reasonable accommodation of amateur radio communications is absolutely required when a state or local government applies land use regulations to amateur radio installations. Marchand expands this proposition from mu- nicipal zoning boards to state courts. That a court cannot revoke a permit and deny reasonable accommoda- tion stands in stark contrast to the rather bizarre conclusion in Evans that the denial of an antenna was a reasonable accommodation. Granted, the Tenth Circuit is a federal court, not a state court, but its wholesale denial of Evans's application constituted a failure to reasonably accommodate am a- teur communications. That a federal court is allowed to do this when a state court may not is not a satisfying result. The Marchand decision re- jects the Evans approach in favor of Pentel, and is substantially more com- patible with the FCC's requirement of reasonable accommodation. However, the district court in Bosscher came to the same result—no permit for the amateur. The difference between Bosscher and Evans was that Bosscher not only rejected proposed alternatives; he failed to even put forth a technically sound reason why those alternatives would not work. Evans also considered a proposed installation that is comparable to other installations in reported cases. Bosscher dealt with a system that was well 178 Id. 179 Id. 180 Id. Indeed, there was a suggestion that with a different transmitter allowing for higher power output, even simplex communication might be possible at a lower height, presumably through a phe- nomenon known as knife-edge diffraction. Id.; see also HANDBOOK, supra note 5, at 21.3 (discussing knife-edge diffraction). 181 Bosscher, 246 F. Supp. 2d at 802. 344 CONNECTICUT LAW REVIEW [Vol. 37:321 off the height scale and was unlikely to work even if granted. Bosscher teaches us that an amateur is well served by having a persua- sive technical case for why his proposed installation is necessary as a rea- sonable accommodation. During any subsequent negotiations, the munici- pality may propose alternate installations, and the amateur should consider whether they might provide reasonable accommodation as well. While it is easy to feel sympathy for Evans because none of the proposed alternatives would clearly work, it is difficult to feel sorry for Bosscher, because his proposal was unlikely to be effective and he refused to consider alterna- tives that might have been better for him. Another critical lesson—well heeded by municipalities and amateurs alike—is to play nice. Saratoga Springs's harassment of Palmer was chided by Judge Mordue and cost the city significant litigation costs. On the other side of the coin, Bosscher pressed for a resolution that the record indicated was technically dubious. He wasted time and money pursuing a highly unlikely dream. There are real costs to hubris on the part of a mu- nicipal zoning board or an amateur in a case like this. The fact that there is a paucity of cases in this area indicates that many amateurs and municipali- ties are able to resolve disputes like these without resorting to litigation. This result is most efficient for all parties, saving the amateur and the mu- nicipality's taxpayers the costs of litigation and allowing the amateur to spend more time enjoying the operating privileges of his license (not to mention the rest of his life). V. STATE EFFORTS TOWARD REASONABLE ACCOMMODATION: STATUTORY GUIDANCE As of February 2004, twenty states have enacted statutes codifying the essence of the PRB-1 decision into state law.t82 While most of these states merely instruct local governments to comply with PRB-1, four states take a further step and specify heights below which a local government cannot regulate.183 The proliferation of these statutes raises three questions. First, 182 The states are Alaska, ALASKA STAT. § 29.35.141 (Michie 2003); California, CAL. Gov'T CODE § 65850.3 (West 2004); Florida, FLA. STAT. chs. 125.561, 166.0435 (2003); Idaho, IDAHO CODE §§ 55-2901 to 55-2904 (Michie 2004); Indiana, IND. CODE §§ 36-7-5.2-1 to 36-7-5.2-3 (2004); Louisi- ana, LA. REV. STAT. ANN. § 33:102.1 (West 2004); Maine, ME. REV. STAT. ANN. tit. 30-A, § 3012 (West 2003); Massachusetts, MASS. GEN. LAWS ch. 40A, § 3 (2003); Nevada, NEV. REV. STAT. 278.02085 (Michie 2003); New Hampshire, N.H. REV. STAT. ANN. §§ 674:16-17 (2003); New Mex- ico, N.M. STAT. ANN. § 5-12-1 (Michie 2003); Oregon, OR. REV. STAT. § 221.295 (2001); Tennessee, TENN. CODE ANN. § 6-54-130 (2004); Texas, TEX. Loc. GOV'T CODE ANN. § 250.002 (Vernon 2003); Utah, UTAH CODE ANN. §§ 10-9-108, 17-27-107 (2003); Virginia, VA. CODE ANN. § 15.2-2293.1 (Michie 2003); Washington, WASH. REV. CODE §§ 35.21.315, 35A.21.260, 36.32.600 (2003); West Virginia, W. VA. CODE §§ 7-1-13, 8-12-5d (2003); Wisconsin, WIS. STAT. § 59.69(40 (2003); and Wyoming, WYO. STAT. ANN. §§ 15-1-130, 18-2-114 (Michie 2003). 183 These states are Alaska, ALASKA STAT. § 29.35.141(b) (prohibiting any restrictions less than 75 feet above ground level on Lots smaller than an acre in areas with a population density of more than 2004] AMATEUR RADIO COMMUNICATIONS 345 since PRB-1 is a federal regulation applicable to all states, aren't such sta t- utes redundant, particularly the majority of statutes that provide no specific instruction as to tower height? Second, does the existence of the state stat- ute alter any federal cause of action an aggrieved amateur radio operator may have? Finally, do de jure minimum heights below which municipali- ties may not regulate become de facto maximum heights above which an amateur may not build? The body of PRB-1 caselaw suggests answers to the first two questions; the third question is yet to be tested in any of the four states where minimum heights have been established. A. Are State Statutes Redundant? Zoning is a highly passionate issue.1%4 Municipal zoning boards are usually made up of residents of the municipality, many of whom have lim- ited expertise in land use, and each of whom likely has varying ideas of what land uses are important or desirable. Zoning law is largely state law; the federal government rarely intrudes.185 Many Americans advocate that the federal government should allow states great leeway in governing a wide range of matters, including land use. PRB-1 is counter to this thought. A citizen zoning board member who does not relish the thought of a shiny antenna down the street may become irate when told that the FCC requires his municipality to accommodate it.186 Presumably, state regulation is more acceptable to those who advocate for a smaller federal government, since zoning and municipal law is generally the purview of state governments. If New York had enacted a statute on point, perhaps Saratoga Springs would not have wasted its taxpayers' money in litigating the Palmer case. For this purely psychological reason, state statutes can serve a practical purpose, even if they do not add to the federal substantive law. B. Do State Statutes Affect the Federal Cause of Action? Another reason why a state statute might be desirable to amateurs is 120 per square mile, less than 140 feet on lots an acre or larger in areas with a population density of more than 120 per square mile, or less than 200 feet in areas with a population density of 120 or less per square mile); Oregon, OR. REV. STAT. § 221.295 (prohibiting restrictions to 70 feet or lower `Unless the restriction is necessary to achieve a clearly defined health, safety, or aesthet is objective of the city or county'); Virginia, VA. CODE ANN. § 15.2-2293.1 (prohibiting restrictions less than 200 feet above ground level in areas with 120 or fewer persons per square mile according to the 1990 United States census and prohibiting restrictions of less than 75 feet anywhere); and Wyoming, WYO. STAT. ANN. §§ 15-1-130, 18-2-114 (prohibiting restrictions of less than 70 feet above ground level). 184 See R. Perry Sentell, Jr., Georgia Local Government Law: A Reflection on Thirty Surveys, 46 MERCER L. REV. 1, 16 (1994) (`IZ]oning controversies frequently arise in heated factual contexts, exuding passionate convictions and human emotions. Those controversies contribute considerable color to the local government corpus.'). 185 Indeed, the FCC describes its PRB-I preemption as `limited." PRB -1, supra note 32, (§ 24, 186 The Saratoga Springs Planning Board was not shy in expressing its collective ire with the PRB-I preemption. See supra text accompanying note 141. 346 CONNECTICUT LAW REVIEW [Vol. 37:321 the availability of a state cause of action against a noncompliant municipal- ity. The amateur has two arrows in his quiver instead of one.187 An ag- grieved amateur may choose to use either of them. But what if she decides to use both of them? This has been tested in the Massachusetts case of Chedester v. Town of Whately,188 in which a federal district court has stayed litigation of a PRB-1 claim in order to allow a claim under the Mas- sachusetts statute to proceed.'89 Chedester sued his town and a neighbor after the town's Zo ning Board of Appeals, upon the neighbor's petition, revoked a buil ding permit for a 140 -foot amateur antenna tower issued to Chedester.190 He filed simulta- neous actions in state and federal court—both claiming violations of the Massachusetts amateur radio statute, and the federal PRB-1 regulation.19' The only difference between the actions was the statute under which the actions were claimed to arise.192 The Massachusetts complaint cited the Massachusetts declaratory judgment statute,193 and the federal complaint— the one before the district court—cited the federal Declaratory Judgment Act.194 Chedester's neighbors—and later the town—moved to stay the federal court proceedings.195 Citing Brillhart v. Excess Insurance Co. of America,196 the court granted the stay.197 Brillhart establishes a presumption in favor of a stay: `t ordinarily it would be uneconomical as well as vexatious for a federal court to proceed in a declaratory judgment suit where another suit is pend- ing in a state court presenting the same issues, not governed by federal law, between the same parties.i198 Chedester argued—not without merit, the court found—that the case was governed exclusively by federal law and that Brillhart counseled against staying proceedings when state law was not at issue.199 While acknowledging the presence of a PRB-1 equivalent in Massachusetts state law, Chedester argued that the lack of any appellate decisions regarding Massachusetts's amateur radi o antenna statute would 187 For example, in Marchand v. Town of Hudson, Muller used—and the New Hampshire Su- preme Court cited in his favor—both PRB-1 and its New Hampshire statutory codification. See 788 A.2d 250, 253 (N.H. 2001). 188 279 F. Supp. 2d 53 (D. Mass. 2003). 189 Id. at 54. 190 Id. at 54-55. 191 Id. at 55. 192 Id. 193 Id. (citing MASS. GEN. LAWS ch. 231A, § 1 (2003)). 194 Id. (citing 28 U.S.C. § 2201 (2000); FED. R. Cry. P. 57). 195 Id. 196 316 U.S. 491 (1942). 197 Chedester, 279 F. Supp. 2d at 57. 198 Brillhart, 316 U.S. at 495; Chedester, 279 F. Supp. 2d at 56. 199 Chedester, 279 F. Supp. 2d at 57. 2004] AMATEUR RADIO COMMUNICATIONS 347 put the state court 'In the awkward position of having to rely on case law interpreting [the federal PRB-1 regulation].s200 Nevertheless, the district court granted the stay, first noting that it had no jurisdiction over the state law appeal of the ZBA's decision. 2°1 Chede- ster's claims that he `Initiated the state court action merely to protect hi m - self from the short twenty -day limitations period for filing such an appeal" were acknowledged but dismissed.202 `Plaintiff cannot overcome th e fact that this court has no jurisdiction over the zoning appeal itself.s203 Next, the district court cited Albertson v. Millarcf°4 for the proposition that `ti]nterpretation of state legislation is primarily the function of state a u- thorities, judicial and administrative.s205 The court found Albertson par- ticularly persuasive since that case, like the one before it, stayed a proceed- ing where the state statute at issue had not yet been interpreted by state courts 206 Finally, the district court noted the plain language of the PRB-1 regulation itself: `tit] leaves the initial regulation of amateur radio antenna structures to `state and local' authorities." 207 While acknowledging that such regulation was subject to `bertain general limits," 208 the court felt that a state court determination of `Whether the Town's bylaw comports with the state statute" was prudent. 209 For these reasons and for reasons of `j u- dicial economy and comity,s21° the stay was granted. Chedester suggests that an aggrieved amateur radio operator should carefully choose her forum when multiple forums are available. As sparse as reported federal caselaw is in this area, it is abundant when compared to decisions interpreting state amateur radio statutes. With the exception of the anomalous Williams, Evans, and Bosscher decisions, the federal deci- sions are favorable to the amateur, and the addition of a state claim might confuse the federal issue—or, as in the Chedester case, shuttle the federal issue into a state forum. If an amateur feels uncomfortable pursuing the case in a state forum with no precedent on the state law, she may wish to consider waiving any state law claims, or at least excluding them from federal complaints. 2°o Id. 201 Id. 202 Id. at 57 n.4. 203 Id. 204 345 U.S. 242 (1953). 205 Id. at 244; Chedester, 279 F. Supp. 2d at 57. 206 Chedester, 279 F. Supp. 2d at 57. 207 Id. at 58 (quoting 47 C.F.R. § 97.15(b) (2003)). 208 Id. 209 Id. 210 Id. (internal quotation marks omitted). 348 CONNECTICUT LAW REVIEW [Vol. 37:321 C. Do De Jure Minimum Heights become De Facto Maximum Heights? The minority adoption of heights below which a municipality may not regulate has been criticized by at least one prominent amateur radio attor- ney.21 There are two schools of thought on this question. By establishing heights on the order of 70 feet or above, amateurs will be able to erect structures sufficient for most amateur radio activities. In the absence of an extenuating circumstance, such as a lot surrounded by hills or very tall obstructing trees, amateurs in these states will easily be able to gain ap- proval for a system that meets their needs. However, a municipality might be more resistant to a proposal above the statutory minimum, suggesting that if 70 feet is adequate for everyone else, it will be adequate for the ama- teur who wants a higher structure. The problem arises when an extenuat- ing circumstance, such as one of those described above, turns the amateur's want into a need if effective communications are to be achieved. While it remains to be seen if the de jure minimum heights become de facto maximum heights in Alaska, Oregon, Virginia, and Wyoming, it will take a unique test to find this out, as tower heights of 70 feet or more are ample for most amateur installations.212 In the interim, amateurs, munici- palities, and legislators will simply have to weigh all of these factors when considering whether to support or oppose new state statutory codifications of PRB-1. Regardless of the presence of such legislation within a state, amateurs and municipalities should remember that PRB-1 applies nation- wide. The requirement of reasonable accommodation is mandatory in all areas under FCC jurisdiction. Amateurs in a state where they have gener- ally friendly relations with various local zoning authorities may prefer the flexibility of the broad federal language. Other amateurs may desire spe- cific instructions from their state to its local governments. The varying preferences do not make PRB-1 more applicable in one part of the United States than the other. VI. CONCLUSION While the number of reported cases relating to the PRB-1 preemption is somewhat limited, the recent cases and the 1999 PRB-1 clarification make a few fundamental concepts quite clear. A municipality's obligation 21 See HOPENGARTEN, supra note 80, at B.12 (encouraging advocates of new state statutes to 'keep open the path for hams to apply for—and have a reasonable chance of being granted—heights over [the statutory minimum]'). 212 Indeed, of the reported cases where an amateur has successfully utilized PRB-1, only the Marchand case involved towers above 70 feet. See 788 A.2d at 251. However, certain types of opera- tion may require greater heights. For instance, a groundplane vertical antenna is ideally 234/f feet in height from ground to tip, where f is the frequency of desired operation in MHz. HANDBOOK, supra note 5, at 20.19. For operation at 1.820 MHz in the 160 -meter amateur band, 234/1.820. 129 fe#. An amateur operating on this band with insufficient lot size to erect a 258 -foot horizontal half -wave dipole may therefore require a 129 -foot height as a reasonable accommodation for the alternate design. 2004] AMATEUR RADIO COMMUNICATIONS 349 to reasonably accommodate amateur communications is clear. It may not preclude amateur communications, and any regulation of an amateur an- tenna or antenna support structure must be crafted toward the minimum level practical to accomplish the municipality's legitimate purpose. On the other hand, amateurs must acknowledge that municipalities may have le- gitimate purposes for their regulation, and must entertain suggestions that will meet those purposes and fulfill their communications needs. As one can see at the beginning of this Comment, amateur radio may be as unfamiliar to untrained lawyers and zoning personnel as law and zon- ing may be to an amateur operator. While the cases discussed here are interesting, one wonders if any of them would have occurred had the par- ties worked toward understanding their obligations and the others' co n- cerns. While statutory directives to municipalities may help toward that understanding, they are no substitute for realism by municipalities, ama- teurs, and their counsel. BRENNAN T. PRICE* * B.A., Vanderbilt University, 1992; M.S., Georgia Institute of Technology, 1995; J.D. Candidate, University of Connecticut School of Law, 2005. The author thanks the American Radio Relay League for its wide-ranging support of his legal studies. Christopher Imlay, ARRL's General Counsel, Jay Bellows, its Dakota Division Director (and plaintiffs counsel in Pentel), Mike Raisbeck, its New England Division Vice Director (and intervenor's counsel in Marchand), and John Hennessee, its Regulatory Information Specialist, provided the inspiration for this topic. The encouragement, direc- tion, and prodding of his former and present colleagues at the Connecticut Law Review, particularly Elizabeth Gioia, Warren Newberry, Scott Devito, Avi Brisman, and Peter Haberlandt, were invaluable. All of these folks encouraged an established amateur radio writer but developing legal writer to pursue this topic in a decidedly different forum, and the author has been rewarded by this pursuit. IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION ORIN SNOOK, § Plaintiff, v. CITY OF MISSOURI CITY, TEXAS, Defendant. United Str'" Southern D.::r.:, of ENTE 1EJ AUG 2r2O Michael N. Milby, Clerk of Caurt CIVIL ACTION NO. H-03-243 ORDER Beginning on May 20, 2003, and ending on May 22, 2003, the Court conducted a bench trial in the above -entitled matter at which the parties presented oral argument, evidence, and thereafter submitted briefs. Having considered the argument, testimony, submissions on file, and applicable law, the Court enters the following opinion and order. Any finding of fact that should be construed as a conclusion of law is hereby adopted as such. Any conclusion of law that should be construed as a finding of fact is hereby adopted as such. INTRODUCTION This is a suit to determine whether Defendant City of Missouri City's regulation of Plaintiff Orin Snook's amateur radio tower and antenna is preempted under federal law, particularly the FCC's rule PRB-1,101 F.C.C.2d 952, 50 Fed. Reg. 38,813 (1985). Plaintiff Orin Snook ("Snook") brought suit against Defendant City of Missouri City, Texas (the "City") complaining that Ordinance 0-01-42, enacted September 4, 2001, is preempted by federal law. Snook's complaint seeks declaratory and injunctive relief allowing Snook to maintain the tower and antenna array, as well as damages. Snook asserts a 42 U.S.C. § 1983 claim premised upon the City's alleged denial of due process rights by engaging in arbitrary and capricious zoning action. Snook seeks damages and attorney's fees under 42 U.S.C. §§ 1983 and 1988; declaratory relief that the City has engaged in bad faith or unwarranted prosecutions; and injunctive relief to prevent the City from enforcing the allegedly invalid ordinance and from continuing prosecution of the municipal violations. Snook asks the Court to declare that the zoning ordinances involve an ex post facto application and are thus invalid. The City claims its regulation of Snook's tower is not preempted. It further denies that Snook had a vested right in his 1999 building permit application; that PRB-1 creates a right, privilege, or immunity cognizable under § 1983; that Snook was immune from prosecution under the ex post facto clause; or that the City maliciously prosecuted Snook. Additionally, the City contends that portions of Snook's § 1983 claim are barred by statutes of limitations and the malicious prosecution claim is barred by sovereign immunity. 2 FINDINGS OF FACT PLAINTIFF ORIN SNOOK 1. From 1996 through the present, Snook and his family have resided at 3719 Stoney Crest, Missouri City, Texas (the "Property"). 2. Snook purchased the unimproved real property (a 0.958 acre -tract) with the intent to build a homestead and to erect an amateur radio antenna array. After surveying various sites that might be amenable to the construction of an amateur radio antenna tower and array, Snook chose this particular location because there were no deed restrictions related to towers. 3. The Property is in the Silver Ridge Subdivision. When Snook purchased the Property, there were no deed restrictions related to towers. In 1999, Snook's neighbors initiated a process to amend their deed restrictions to limit, among other things, antennas and towers. Meanwhile, Snook sought a permit from the City to construct a tower on his Property. After Snook constructed his tower, the neighbors adopted restrictions to prohibit construction of towers. Snook's tower is grandfathered from those deed restrictions because he built his tower prior to adoption of the amendment. 4. Orin Snook and his wife, Angela Snook, have been amateur radio licensees or "ham" radio operators for thirty years. Snook holds, and has held at all 3 relevant times, the highest federal amateur radio license with the maximum attendant rights. Snook is a regional emergency amateur radio coordinator within the Southern District of Texas, Houston Division. DEFENDANT MISSOURI CITY 5. The City of Missouri City, Texas is a home rule municipality of the State of Texas. The City is governed by a City Council consisting of a Mayor and six council members. The City operates under a city manager form of government. A) James Thurmond is the City Manager. B) Wayne Neumann is the Director of Planning and is responsible for the administration of the City's planning, zoning, and building permit functions. C) Carolyn Kelly is an Assistant City Attorney. She also serves as the City's Municipal Court Prosecutor and is responsible for the prosecution of cases in Municipal Court. D) Mary Holton is the City Planner. SNOOK'S ON-SITE TESTING AND ANALYSIS 6. Drawing on his experience as an engineer and amateur radio operator, Snook conducted tests from his property site to determine the type of antenna array that would produce a level of effective communications necessary for emergency and amateur radio communications. 7 Snook considered the variables that impact effective emergency or other amateur radio communications and the changes those variables undergo over 4 the passage of hours or days. 8. In his testing and analysis, Snook considered that effective emergency communications would require an ability to communicate from his antenna with the taller repeater towers in the area, from his antenna to shorter vehicles on the ground in the immediate vicinity, from his antenna to lower antenna arrays if the taller repeater towers crashed or were inaccessible during an emergency, from his antenna to cities throughout Texas, Louisiana, and the United States, and from his antenna to various cities throughout the world as necessary. 9. To conduct effective emergency operations, Snook must be able to achieve at least a 75 to 90 percent successful signal under the changing variables that impact emergency or other amateur radio communications. 10. Snook conducted tests on his real property utilizing various equipment to assess and evaluate the variables that would impact his communications. 11. Between 1996 and 1999, Snook erected a 20 -meter antenna, 40 -meter antenna, 80 -meter loop antenna, and Very High Frequency/Ultra High Frequency ("VHF/UHF") antenna at various heights on his real property. He attempted communications with these arrays at the various heights and used different devices to measure the effectiveness of the attempted communications. 12. Based on his on-site testing, Snook was unable to achieve effective emergency or other communications on any antenna array at 35 feet, 65 feet, or any other height lower than the corresponding heights of the trees on his real property. Snook determined that his antenna array could not work effectively if it were located within the canopy of the trees because, among other factors, the location and concentration of the trees created a false ground effect at the tops of the trees, distorting the required radiation pattern of his radio communications. When Snook's antenna arrays were located lower than the tops of the trees, he could not successfully reach the necessary repeaters or ground level vehicles. Pursuant to his on-site testing, Snook concluded that his antenna arrays required a height of at least 15 to 20 feet above the tops of the trees. 13. Snook determined that his antenna array also requires an area of rotation of 360 degrees for at least one antenna. The tightly bunched trees on his property would provide a visual screen for the antenna support structure, but also precluded 360 degree rotation of any of the antenna array. 14. Snook estimated the height of the trees before he erected the antenna support structure to be between 60 and 80 feet. He subsequently climbed the antenna support structure and found the tree heights to range between 70 and 85 feet. 6 15. Snook used on-site testing as a starting point to determine the height and array of antennas necessary to produce effective emergency and other communications. Based on his emergency and amateur radio experience, he estimated that an antenna array of 180 to 185 feet high would be optimal. 16. Considering neighborhood aesthetics, Snook computed that a 100-foot support structure (that would also function as part of the antenna array) with an antenna array extending an additional 12 to 15 feet would be an acceptable minimal compromise that would not preclude his effective emergency amateur radio operations. Snook understood that Memorandum and Order PRB-1 issued by the FCC ("PRB-1") required such an analysis. He was familiar with PRB-1 and the federal regulations promulgated by the FCC that expressly governed emergency amateur communications. 17. Snook determined that the trees on the real property screened much of the antenna support structure from the normal eye-level line of sight with a portion of the top of the antenna support structure and antenna array exposed at the 70 to 80-foot line of sight. Snook also determined that the antenna support structure and antenna array would be no more conspicuous than the taller television transmission towers on the same horizon line of sight. 18. In 1999, Snook reviewed the City's ordinances and was unable to locate any 7 applying directly to his proposed antenna support structure. 19. Snook met with City officials, including Oscar Arevalo, the Chief Building Official, on several occasions regarding construction of the tower and antenna array. When Snook inquired about the type of permit he needed to obtain, the City informed him he should apply for a building permit. 20. Snook was not certain whether Ordinance 15B of the 1999 zoning ordinance, requiring a specific use permit for commercial towers, applied to ham radio antenna. Thus, he consulted the City regarding the proper type of permit. 21. In 1999, the City was uncertain whether Ordinance 15B applied to ham radio antenna. This uncertainty was demonstrated in Snook's conversations with City officials and in the notes of the public zoning hearing regarding amendment to Section 15B of the zoning ordinance, which states: "Mr. Neumann said there was also confusion about towers that required [specific use permits] and those which did not." FCC REGULATIONS 22. The Federal Communications Commission (the "FCC") restricts the bands at which each individual licensee can operate. For emergency communications within the Southern District of Texas, Houston Division, the FCC reserves communications at certain frequencies in the 40 and 80 -meter bands for the 8 exclusive use of individual licensees, such as Snook. The FCC made such reservations under both the 40 and 80 -meter bands because emergency communications occur during both the day and night: one band works effectively only during the day and the other band works effectively only at night. THE CITY'S REGULATIONS (THE 1981 AND 1999 ORDINANCES) 23. In 1981, the City adopted a comprehensive zoning ordinance, Ordinance 0-81- 1. This Ordinance required a specific use permit for the use of a radio, microwave tower, or transmission site. A specific use permit is a site-specific zoning amendment that can only be granted by the City Council. The 1981 zoning ordinance, however, does not mention amateur radio antennas. 24. The City has adopted comprehensive regulations related to the aesthetics of its community, including height limitations on structures and buildings. The City's height limitations are more stringent than other cities in the Houston Metropolitan Area. 25. Before the City Council grants a specific use permit, the City's Planning and Zoning Commission must conduct a public hearing and submit a report regarding the specific use permit to the City Council. 26. When considering a specific use permit, in accordance with Ordinance 0-81-1 9 the City Council considers, among other things, the following factors: screening or buffering; landscaping and required yard, and other open space; general compatibility with adjacent properties and other property in the district; and the conformity of the proposed use with the zoning ordinance and comprehensive plan. The City Council has the authority to deny a request for a specific use permit. 27. The City has a zoning board of adjustment and appeals that has the power to hear appeals by a person aggrieved by the action of an administrative official. The City's zoning board of adjustment and appeals does not have the authority to grant a variance for a use not permissible under the terms of the zoning ordinance in the district involved. 28. The 1981 zoning ordinance contained severability provisions providing that if any part of the ordinance is adjudged invalid for any reason, the remainder of the ordinance would not be affected, impaired, or invalidated. 29. In January 1999, the City adopted Ordinance 99-04, amending its 1981 zoning ordinance as it related to the construction and maintenance of towers within the City. The 1999 tower ordinance also contained severability provisions. 30. The City added Section 15B to the 1999 tower ordinance. Section 15B defines a tower as "a structure constructed as a freestanding structure or in association 10 with a building, other permanent structure or equipment, on which is located one or more antennas intended for transmitting or receiving television, AM/FM radio, digital, microwave, cellular, telephone, or similar forms of electronic communication. The term includes alternative tower structures. The term includes radio and television transmission towers, microwave towers, common carrier towers, and cellular telephone towers. A tower does not include a lightning rod, satellite dish antenna one meter in diameter or less, a receive - only home television antenna, or any satellite dish antenna two meters or less in diameter located in a nonresidential zoning district." 31. The 1999 ordinance required that any tower be located at least 500 feet from any residence. 32. When Snook purchased his property, it was zoned as residential (R-1). The Property is also in an architectural overlay district, which requires specific architectural details, such as exterior surfaces. The general height limitation for all buildings and structures within the R-1 district is 35 feet. SNOOK'S FIRST PERMIT APPLICATION 33. In December 1999, Angela Snook was employed by the City. 34. On December 22, 1999, based on the City's instructions concerning a permit, Snook, through his wife, Angela, submitted a building permit application to 11 Oscar Arevalo, along with a $15 building permit fee, for the construction of an antenna support erection. 35. Snook, through his wife, submitted supporting documents and drawings to Mr. Arevalo with the permit application. These documents and drawings included a cover letter that began: "Attached, please find the completed Building Permit Application that I am led to believe is necessary to continue placement of a 100 -foot amateur radio communications antenna. This is the minimum height required after 3 years of extensive investigations, modeling and RF (radio frequency) engineering...." 36. In accordance with the practice at that time, Mr. Arevalo made a copy of Snook's single page form application. He then created a package containing the copy of the application and the supporting documents, which he forwarded to Mary Holton in the City Planning Depai tinent. Mr. Arevalo forwarded the original application to the building clerk. The building clerk issued the permit for an "antenna support erection." 37. Upon filing the application and the supporting documents, the City needed to consider the application, make factual findings, and attempt to negotiate a satisfactory compromise under federal law. 38. At the time that Snook submitted his building permit application to the City, 12 the City's Planning Director, Wayne Neumann, was not familiar with 47 C.F.R. § 97.15, adopting PRB-1. After reviewing the materials submitted by Snook, Neumann determined that the 500-foot residential setback requirement contained in the City's zoning ordinance was inconsistent with PRB-1. Neumann initiated the process to amend the City's zoning ordinances to comply with PRB-1. 39. On January 19, 2000, James Thurmond, City Manager, confirmed that Snook wanted "to put a 100 foot ham radio operator tower" on his real property. 40. Mr. Arevalo and Mary Holton, the City Planner, reviewed Snook's application. They concluded that Snook had complied with the necessary requirements under the City's ordinances to issue a building permit. 41. Mr. Arevalo and Ms. Holton reviewed the governing federal law for the first time after receipt of Snook's application. They recommended that the City issue Snook whatever permit was necessary under the relevant federal law. The City rejected the recommendation of Mr. Arevalo and Ms. Holton. 42. Early in the process, the City failed to conduct sufficient analysis under the governing federal law. The City did not hire an expert until August 2001, more than one and a half years after Snook's initial request. 43. Snook made himself available for questions and offered to provide more data 13 and documentation. The City, however, did not request further documents or information at this time. 44. Before conducting the proper analysis under federal law, the City determined it would not approve Snook's application. This decision was based primarily on aesthetics and the general height restrictions for all structures in Snook's district. ORDINANCE 0-00-24 45. On May 15, 2000, partly in response to the controversy regarding Snook's antenna, the City Council adopted Ordinance 0-00-24, amending its ordinances regulating towers and clarifying that certain portions of Ordinance 15B apply to ham radio antennas. Ordinance 0-00-24 eliminates the earlier prohibition of a tower within 500 feet of a residential structure. It requires an amateur radio operator to apply for a specific use permit if the applicant seeks to erect an antenna support structure or antenna array more than 35 feet high. This amendment corresponds to a general height limitation on all structures of 35 feet. 46. Ordinance 0-00-24 contains severability provisions. 47. During the consideration of the amendment, Mr. Neumann confirmed that prior to the amendment, there was some confusion about which towers required a 14 specific use permit. SNOOK CONSTRUCTS HIS TOWER 48. On May 16, 2000, Snook constructed a 114 -foot antenna support structure and antenna array on his property. Snook erected a 40 -meter dipole antenna, a separate 80 -meter loop antenna, a separate interleaved series of antennas, and a separate VHF/UHF antenna. 49. On May 17, 2000, the City's amendment to Ordinance 15B became effective. 50. Snook erected his tower in a cluster of trees, in order to provide some screening of the structure. Snook planted additional trees to provide coverage at normal lines -of -sight. 51. On May 30, 2000, Mr. Arevalo advised Snook in writing that (i) the building permit originally requested by Snook for a 100 -foot tower "could not be permitted since it violated the existing ordinance," (ii) Snook's tower violated the new ordinance limiting the height of towers to 35 feet, and (iii) Snook should remove the tower (or be subject to municipal court action) and obtain a specific use permit for a tower in excess of the 35 -foot height limitation. The letter required Snook to comply with the amended 35 -foot standard that was not in effect when Snook submitted his building permit application. During the later prosecution of Snook on municipal citations, it became evident that 15 the City had in fact issued the building permit in December 1999. In May 2000, however, the City was apparently not aware that it had done so. 52. On June 13, 2000, Snook filed a notice of appeal with Mr. Arevalo and the Zoning Board of Adjustments. The City did not respond to Snook's notice of appeal. The City later argued that it did not allow Snook to appeal because the Zoning Board of Adjustments did not have the authority to consider a variance to allow a use that was not permissible under the terms of the zoning ordinance in the district. Thus, Snook's only available relief was either to apply for a specific use permit or appeal directly to the City Council. 53. On July 31, 2000, Mr. Neumann wrote Snook, asserting that Snook was in violation of the amended 35 -foot rule and that he should apply for a specific use permit. He also stated that Snook did not pay the appropriate application fee when he submitted his permit application in December 1999. Mr. Neumann stated that the City would analyze Snook's permit application under the ordinances in existence in 1999 if Snook would pay the application fee of $302. SETTLEMENT PROTOCOL 54. On October 31, 2000, Snook responded and argued that the City had acted arbitrarily and was in violation of federal law. 16 55. He suggested a settlement protocol to allow the City to comply with federal law. On November 4, 2000, Snook and the City agreed to this protocol. 56. Subject to all rights and remedies, Snook agreed to resubmit the same application documents, but this time with a completed single page form application for a specific use permit. 57. The Court compared the single page specific use permit application form and supporting submissions with the single page building permit application form and supporting submissions. Snook's earlier building permit application contained the information required for the specific use permit application with the exception of the name of Snook's attorneys. 58. Subject to all rights and remedies, Snook and the City agreed that the Planning and Zoning Commission would consider the submitted application and make recommendations to the City Council. 59. When Snook had not applied for a specific use permit by February 23, 2001, a City Code Enforcement Officer prepared complaints to be filed in Municipal Court against Snook regarding the violation of city ordinances. 60. On March 8, 2001, Carolyn Kelly, the City Prosecutor, accepted the charges made against Snook by the City's Code Enforcement Officer for construction of a tower in violation of city ordinances. 17 61. On March 22, 2001, Snook completed an application form for a specific use permit, paid the application fee for a specific use permit, and provided the City with information regarding his request for a specific use permit. 62. The City states that it accepted Snook's specific use permit application under the 1999 Ordinance, including the application fee set by the 1999 Ordinance (i.e., an additional $285). The City did not, however, attempt to enforce the 500 -foot residential setback requirement in the 1999 Ordinance. Snook applied for a specific use permit for a 100 -foot amateur radio communications antenna. 63. In Snook's specific use permit application submitted on March 22, 2001, Snook described the trees on his property as 60 and 70 feet tall. The height of the trees on his property and near the antennas is an important factor related to the height of the tower and antennas for both technical and aesthetic reasons. When considering Snook's specific use permit application, the City's Planning Department requested that Snook provide information regarding the approximate height of the mature canopy trees on his property. Snook subsequently hired a tree survey to be completed, and provided a copy to the City. The tree survey, however, did not include the height of the trees. The taller trees on Snook's property are mature such that they no longer appear to 18 be increasing in height. 64. The City staff's April 11, 2001 report to the Planning and Zoning Commission, prepared by Mr. Neumann, specifically addressed the local government's concern regarding the height of the tower: "Preservation of community character is an additional issue. The [Property] is located within a large - acreage residential neighborhood.... The neighborhood offers a rural setting ... consisting of 122 lots, of which over 50 have been developed to date with custom homes.... [T]he visual impact of the telecommunications tower together with its antennas and the guy wires hovering above the applicant's house can be seen from various locations in the neighborhood, appears more appropriate in an Industrial District, and does not complement the character of the community." 65. The April 11, 2001 report to the Planning and Zoning Commission recommended that the natural screen of trees surrounding the tower (of approximately 60 to 80 feet in height) be considered by the Planning and Zoning Commission in developing their recommendation. 66. The Planning and Zoning Commission held a public hearing on Snook's application for a specific use permit on April 18, 2001. After considering Snook's application, the City staff's written report, the Homeowners 19 Association's written comments, comments of City staff, the applicant and his attorney, and two citizens opposed to the application, the Planning and Zoning Commission adopted a written final report, which it directed to City Council. 67. Neumann and Holton permitted James Siedhoff to argue that Snook's antenna support structure and antenna array violated the applicable deed restrictions. This argument was not relevant, however, as there are no applicable deed restrictions. 68. The Planning and Zoning Commission voted to recommend a specific use permit that limited the height of Snook's antenna support structure and antenna to 35 feet as prescribed by the amendment to Ordinance 15B. The Planning and Zoning Commission's recommendation expressly stated that Snook's application was subject to Ordinance 15B, as amended. The Planning and Zoning Commission, however, did not limit the array of antennas or require that the antenna support structure and antenna array be taken down. 69. Snook asked the Planning and Zoning Commission to make findings of fact, but none were issued. 70. After the decision of the Planning and Zoning Commission, the City requested that Snook provide additional information, including (a) whether Angela Snook, who filed the original application, approved the filing of the 20 application, (b) whether Snook could provide tax receipts, (c) the location of the power lines in relation to Snook's real property, (d) whether Snook installed a pool, (e) the species and calipers of each tree on Snook's real property, and (0 the scale of Snook's drawings. 71. The City required Snook to obtain a tree survey, at a cost of $3,200. The City has not required any other applicant to secure a tree survey. 72. Snook objected that the City submitted dilatory, pretextual, make-work questions, or questions for which the City's "comprehensive planning" department should already have had the answer. 73. In response to further requests from the City, Snook submitted a report that his antenna and support structure exceeded all code requirements. 74. Snook also supplied the City with the expert report of Kent Marshall, P.E., a professional engineer and experienced amateur radio operator. Mr. Marshall's report supported Snook's application. 75. Snook provided the City with additional data and information that supported his computations. CITY CITES SNOOK 76. On March 31, 2001, after Snook resubmitted his application, the City issued the first four of twenty-seven citations to Snook. 21 77. Snook had complied with the settlement protocol when the City presented the citations to the court to sign and issue. The City did not pull the citations even though Snook was in full compliance with the settlement protocol. 78. The City later stated in argument at trial that it issued the citations because Snook did not provide the height of his trees. However, the City did not request the height of the trees until April 2001. 79. The City cited Snook for not having a building permit and for having an antenna in excess of the 35-foot limit under the amended ordinance without a specific use permit. 80. Carolyn Kelly, the prosecuting attorney, testified that she reviewed and approved each citation and found that there was a reasonable basis for each. The City decided to issue weekly citations, or daily citations if it determined there was a lack of good faith compliance on Snook's part. 81. On July 5, 2001, City Prosecutor Kelly tried three cases against Snook. At the bench trial, the Municipal Court Judge found Snook guilty of two violations: construction of a tower without a specific use permit and construction of a tower more than 35 feet tall. The Judge dismissed the third violation (which cited Snook for not having a building permit). 82. By August 15, 2001, the City had received one letter of support, eight letters 22 of non -opposition, two letters asserting a violation of deed restrictions (which are not applicable to Snook's tower), and one letter of opposition with no specified basis. Furthermore, no residents had sought to lower the valuation of their real property because of Snook's antenna support structure, or complained that they had to lower the selling price of their property because of the antenna support structure and array. CITY EMPLOYS DR. LONG 83. In August 2001, the City employed Dr. Stuart Long, an expert in antennas and radio communications, to assist in evaluating Snook's specific use permit application. Dr. Long prepared a written report for the City Council, dated August 13, 2001. 84. The City admitted that Dr. Long provided the basis for its understanding of amateur radio communications and controlling federal law. 85. Dr. Long estimated the trees around Snook's antenna to be approximately 60 to 70 feet high. 86. Dr. Long obtained information from Snook regarding band widths of operation, type of communications equipment, including antennas, and proposed geographic areas of communication. 87. After observing Snook's property and antenna from a distance of 23 approximately 200 feet and reviewing Snook's specific use permit application, Dr. Long concluded that Snook's tower height and antenna placement for the high frequency bands (considering primarily 20 and 40 meter bands) should be about 50 to 60 feet high, and placement for the VHF/UHF antennas should be just above the treetop level. 88. Dr. Long did not go onto Snook's property or closely examine the antenna array, antenna support structure, or amateur radio equipment. 89. Snook uses the 40, 80, and 160-meter bands for communication to Austin and similar surrounding areas. These radio frequencies (10 to 160-meter bands) bounce between the earth and the ionosphere to provide communications. Dr. Long's opinion is that the trees on Snook's property do not substantially impact these bands. 90. Snook also communicates on VHF/UHF bands. These radio frequencies work on a line of sight or point to point, without a bounce. These radio frequencies pass through vegetation, but trees may attenuate the signal. Due to repeaters and the relatively greater height on the towers on which the repeaters are placed (400 feet), Dr. Long's report opines that Snook does not increase his area of communication significantly by increasing the height of his tower over 50 to 60 feet high. 24 91. According to Dr. Long, for best reception, a VHF/UHF antenna should be above the level of the treetops. 92. Dr. Long states he rendered no opinions on aesthetics. 93. The City did not ask Dr. Long to render an opinion on whether Snook must take down the antenna support structure and antenna array or whether the antenna array should be limited. 94. Dr. Long admits he is unfamiliar with the frequencies of the bands the FCC reserves for emergency communications. He admits he does not know where the repeaters that Snook needs to access during emergency communications are located. He also admits he could not specify the precise paths Snook would use to conduct emergency communications during any particular emergency. 95. Dr. Long did not conduct any tests or computer simulations. Dr. Long did not ask for any data regarding Snook's previous on-site testing. 96. The Court concludes that Dr. Long presents theory without any normative link to the facts of Snook's actual amateur radio equipment or operations. 97. Dr. Long incorrectly assumed that Snook could only communicate at the 20 - meter band, but not at the 40 and 80 -meter bands that are used for emergency communications. Dr. Long may have incorporated this assumption because his own report appears to support Snook when, as in this case, Snook 25 communicates at the 40 meter, 80 meter, or VHF/UHF bands. Dr. Long does not appear to be factoring international communications into his analysis and recommendation of a 50 to 60 foot tower. He concluded in part, like Snook, that Snook's antenna support structure had to be between 100 to 110 feet high for the 40-meter band and that Snook could not operate at the UHF/VHF band if the antenna were placed below the tree line. 98. Although Dr. Long did not recommend a 65-foot height, his report mentions a 65-foot height based upon on a statement from an attorney in the comment section of PRB-1. This comment bears no relationship to the details of Snook's amateur radio equipment, antenna array, or communications from that array. ORDINANCE 0-01-42 99. The City Council conducted two public hearings regarding Snook's application for a specific use permit on August 20, 2001 and September 4, 2001. 100. On September 4, 2001, the City Council passed a specific use permit ordinance, Ordinance 0-01-42, which pertains to Snook's radio antenna array and support structure. 101. Ordinance 0-01-42 lists specifically the array of antennas Snook may maintain on his structure, incidentally eliminating one antenna. Neither Dr. Long nor the Planning and Zoning Commission provided any support for this limitation. 26 Counsel argued at trial that the City intended to simply insert the list of antennas as provided by Snook. However, by including the list of specific antennas, the face of the ordinance precludes at least one antenna currently on the tower. 102. The list of antennas in Ordinance 0-01-42 as written does not allow for the erection of Snook's 80 -meter loop antenna. The FCC reserves both the 40 and 80 meter bands for emergency communications because one band operates at night and one operates during the day. Without the 80 -meter loop antenna, Snook cannot conduct emergency communications. 103. The Ordinance 0-01-42 dictates a height for Snook's antenna support structure and antenna array that meets the City's preordained goal to envelop the antenna support structure and antenna array within the tree canopy. It limits the height of the structure and array to 65 feet or the average height of the surrounding trees within a 20 -foot radius. In either instance, Snook's antenna support structure and antenna array must be within the canopy of trees. 104. Dr. Long provides no opinion to support this limitation. Dr. Long concluded that 50 to 60 feet would be satisfactory for the 20 -meter band. The report is unclear as to the height requirement for the 40 -meter band antenna in relation to Snook's actual antenna operations. Dr. Long also concluded that the 27 VHF/UHF antenna had to be at or above the tree canopy. Independent of Dr. Long's recommendation, the City has no background or experience in amateur radio communications or the controlling federal law to decide such a limitation. There is no determination as to why this is a minimum regulation necessary to yield the City's aesthetic concerns. There are no fact-findings to support this limitation. 105. The Court concludes that the limitations of Ordinance 0-01-42 preclude Snook's effective emergency or other communications under his existing and intended antenna arrays. 106. To comply with the specific use permit ordinance, Snook would need to burrow out an area within the canopy of the trees to permit the 360-degree rotation of one or more of his antenna arrays. 107. Based on practical experience and examination of Snook's structure, Kent Marshall confirms that Snook cannot effectively communicate if he were required to lower his antenna support structure and antenna array within the canopy of the trees. He confirms that an antenna array within the tree canopy, especially in the 20, 40, and 80 meter bands and in the VHF/UHF bands, will have an unrecognizable distorted signal and will not allow for communication to all repeaters and lower surface level vehicles, cannot rotate as necessary, and 28 will not support the emergency or amateur radio communications Snook needs to utilize. 108. On its face, the specific use permit Ordinance requires Snook to remove the antenna array and support structure and apply for a new permit. There is no determination as to why this is a minimum regulation necessary to yield the City's aesthetic concerns. There are no fact -findings to support this limitation. There is no basis for this limitation. In the course of this litigation, the City claimed, however, that Snook needs only to lower the structure. 109. The Ordinance 0-01-42 also requires Snook to reapply, resubmit data, and pay additional fees of up to $1,200 for his existing antenna support structure and array. There is no determination as to why these are minimum regulations necessary to yield the City's aesthetic concerns. There are no fact -findings to support these limitations. Mr. Marshall asserts such limitations are unreasonable and effectively require more stringent regulation than that required by the FCC. 110. Ordinance 0-01-42 recites that Snook must comply with Ordinance 15B, without specifying which version of 15B applies. 111. No residents appeared before either of the two City Council meetings to complain or voice concern regarding Snook's antenna structure and array. 29 112. Snook objected to the specific use permit Ordinance and requested findings of fact by the City Council pertaining to its determination. None were provided. 113. The City failed to respond to Snook's objections and prosecuted twenty-one of the twenty-seven citations against Snook. The City secured a conviction for Snook's violation of the 35 -foot height limit and for violations of the specific use permit ordinance. 114. In each trial, the City failed to bring forth evidence of its compliance with Local Government Code § 250.002 which requires compliance with federal law. CONCLUSIONS OF LAW JURISDICTION AND VENUE 1. The Court has jurisdiction over the parties. The Court has subject matter jurisdiction. 2. Venue is proper in the Southern District of Texas, Houston Division. SNOOK'S CLAIMS 3. Snook seeks a declaration from the Court that the height restrictions, antenna array restrictions, and structure removal requirement in Ordinance 0-01-42 are preempted, void, and unenforceable because they preclude Snook's amateur radio communications or, alternatively, because they do not represent the 30 minimum regulation that reasonably accommodates Snook's amateur radio communications and achieves a legitimate city purpose. 4. Snook seeks a declaration that the May 2000 amendment to Ordinance 15B is preempted, void, and unenforceable because its enactment did not comply with the governing federal law for amateur radio communications. 5. Pursuant to 42 U.S.C. §§ 1983 and 1988, Snook seeks: (1) a declaration that the City violated Snook's rights by denying his federal rights as a licensed emergency amateur radio operator; (2) a declaration that the City violated Snook's due process and federal rights by enacting and seeking to enforce the May 2000 amendment to Ordinance 15B without complying with the federal law governing amateur radio communications and in an ex post facto manner; (3) a declaration that the City violated Snook's due process rights by engaging in arbitrary, capricious, unreasonable, and egregious zoning actions that bore no reasonable relationship to any actual or conceivable legitimate purpose; (4) a declaration that the City violated Snook's due process rights by denying him the required permit to erect Snook's antenna array and antenna support structure in December 1999 when the City determined that Snook had complied with all of the requirements for the necessary permit, but then did not complete the administrative steps to issue the necessary permit; (5) a 31 declaration that the City violated Snook's due process rights by engaging in bad faith prosecutions; and (6) recovery of damages, attorney's fees, and expert fees. 6. Snook seeks permanent injunctive relief that: (1) restrains the City from enforcing the specific use permit Ordinance, or alternatively any portion of the specific use permit Ordinance, that is preempted, void, and unenforceable; (2) restrains the City from enforcing the May 2000 amendment to Ordinance 15B, or alternatively any portion of the May 2000 amendment to Ordinance 15B, that is preempted, void, and unenforceable; and (3) restrains the City from continuing with its criminal prosecutions of Snook. A CASE OF FIRST IMPRESSION 7. Neither the Fifth Circuit Court of Appeals nor any federal district court within Texas, Louisiana, or Mississippi has had to consider the type of relief requested by Snook under the same or similar facts as exist in this case. THE FCC ACT, ITS REGULATIONS, AND AMATEUR RADIO OPERATIONS 8. The Federal Communications Act of 1934, 47 U.S.C. §§ 151 et seq. created the FCC and granted the FCC the power to promulgate its implementing regulations, 47 C.F.R. Part 97, that comprehensively regulate all amateur radio operations. Bodony v. Incorporated Village of Sands Point, 681 F.Supp. 1009, 32 1012 (E.D. N.Y. 1987). 9. These regulations have the same preemptive effect as federal statutes. Id. 10. 47 C.F.R. § 97.15 codifies two seminal FCC rulings: FCC Memorandum Opinion and Order PRB-1 and Order RM-8763 ("RM-8763"). 11. "Undeniable tension exists between amateur radio operators' interests in erecting a radio antenna high enough to ensure successful communications, and local municipalities' interests in regulating the size and placement of amateur radio antennas. Choosing between the two, the federal government aligned its interests with those of the amateurs because `amateur radio volunteers afford reliable emergency preparedness, national security, and disaster relief communications,' and because a direct correlation exists between antenna heights and amateurs' ability to successfully transmit and receive radio signals. Accordingly, `federal interests are furthered when local regulations do not unduly restrict the erection of amateur antennas." Palmer v. City of Saratoga Springs, 180 F.Supp.2d 379, 383 (N.D. N.Y. 2001) (quoting Pentel v. City of Mendota, 13 F.3d 1261, 1263 (8th Cir. 1994)). 12. On September 19, 1985, the FCC issued In re Federal Preemption of State and Local Regulations Pertaining to Amateur Radio Facilities, 101 F.C.C.2d 952, 50 Fed. Reg. 38,813 (1985) (codified at 47 C.F.R. § 97.15(e)). This ruling is 33 referred to as PRB-1. 13. "Weighing the various local, federal and amateur interests, the FCC issued PRB-1 in an attempt to `referee' the tension between the competing interests and `strike a balance between the federal interest in promoting amateur communications and the legitimate interests of local governments in regulating local zoning matters."' Palmer, 180 F.Supp.2d at 384 (quoting PRB-1 ¶¶ 22, 24). 14. Section 97.15 (b) of 47 C.F.R. provides in part that: Except as otherwise provided herein, a station antenna structure may be erected at heights and dimensions sufficient to accommodate amateur services communications. (State and local regulation of a station antenna structure must not preclude amateur service communications). Rather, it must reasonably accommodate such communications and must constitute the minimum practicable regulation to accomplish the state or local authority's legitimate purpose. See PRB-1,101 FCC 2d 952 (1985). 15. PRB-1 considered many different positions, PRB-1 at pp. 1-7, but then focused on the amateur radio operator's rights under the comprehensive regulation and the need for an existing infrastructure of emergency amateur radio communications: 34 [T]here is also a strong federal interest in promoting amateur communications. Evidence of this interest may be found in the comprehensive set of rules that [the FCC] has adopted to regulate the amateur service. Those rules set forth procedures for the licensing of stations and operators, frequency allocations, technical standards which amateur radio equipment must meet and operating practices which amateur radio operators must follow. We recognize the amateur radio service as a voluntary, noncommercial communication service, particularly with respect to providing emergency communications. Moreover, the amateur radio service provides a reservoir of trained operators, technicians and electronic experts who can be called upon in times of national or local emergencies.... Upon weighing these interests, we believe a limited preemption policy is warranted. State and local regulations that operate to preclude amateur communications in their communities are in direct conflict with federal objectives and must be preempted. Because amateur station communications are only as effective as the antenna employed, antenna height restrictions directly affect the effectiveness ofamateur communications. Some amateur configurations require more substantial installations than others if they are to provide the amateur with the communications that he/she desires to engage in. ... We will not, however, specify any particular height limitation below which a local government may not regulate, nor will we suggest the precise language that must be contained in local ordinances, such as mechanisms for special exceptions, variances, or conditional use permits. Nevertheless, local regulations which involve placement, screening, or height of antennas based upon health, safety, or aesthetic considerations must be crafted to accommodate reasonably amateur communications, and to represent the minimum practicable regulation to accomplish the local authority's legitimate purpose. PRB-1 at p. 7. 16. PRB-1 requires a site-specific, antenna -specific, array -specific, operations - specific, ordinance -specific, and city action -specific analysis. PRB-1 at p. 7. 35 17. In November 1999, RM-8763 revisited the scope of the analysis required under PRB-1. RM-8763 at pp. 1-5. 18. In RM-8763, the FCC considers whether the traditional deference afforded a zoning regulation under a balancing of interest test still applied when the zoning regulation did not preclude ham radio operations, but still impinged on the operations. RM-8763 reaffirmed the express formula contained in PRB-1 and amplified that "[g)iven [examination required under PRB-1,1 it is clear that a `balancing of interests' approach is not appropriate." RM-8763 at p. 3. 19. RM-8763 reaffirms that "the very least regulation necessary for the welfare of the community must be the aim of its regulations so that such regulations will not impinge on the needs of the operators to engage in amateur communications." TEXAS ADOPTS THE FEDERAL LAW OF AMATEUR RADIO OPERATIONS 20. 47 C.F.R. § 97.15, Order PRB-1, and Order RM-8763 provide for limited federal preemption. Pentel v. City of Mendota, 13 F.3d 1261, 1263 (8th Cir. 1994). 21. Effective May 1999, the Texas Legislature expressly imposed this federal law on its counties and cities. TEX. Loc. GOVT. CODE §§ 250.002(a) and (b). 22. 47 C.F.R. § 97.15, Order PRB-1, and Order RM-8763 govern both the 36 enactment and the enforcement of city ordinances relating to the individual amateur radio service. Id. PREEMPTION 23. The FCC has specifically recognized that cities have authority to regulate the screening and height of antennas based on aesthetic considerations, provided the local regulation "is crafted to accommodate reasonably amateur communications and to represent the minimum practicable regulation to accomplish the local authority's legitimate purpose." PRB-1, paragraph 25. 24. 47 C.F.R. § 97.15, PRB-1, and RM-8763 do not define when zoning action precludes amateur radio communications or when a city fails to reasonably accommodate amateur radio communications with the minimally practicable regulation, except to recite that this Court must apply the PRB-1 formula as written and may not simply defer to a city's zoning actions based upon a balancing test. 25. There are several decisions outside the Fifth Circuit that provide guidance in applying 47 C.F.R. § 97.15, PRB-1, and RM-8763. Bodony v. Incorporated Village of Sands Point, 681 F.Supp. 1009 (E.D. N.Y. 1987). 26. A city's zoning action precludes amateur radio operations when that action "seriously interferes with the full enjoyment by [the applicant] of his license 37 to operate an amateur radio station. Bodony, 681 F.Supp. at 1013. 27. In Bodony, an amateur radio operator sought to erect an antenna that was 23 feet in its retracted position and 86 feet in its extended position. Id. at 1010. Trees were expected to screen the extended antenna. Id. The location and height of the trees, their true proximity to the proposed antenna, and the bands at which operations would be conducted, however, are not disclosed. The city's ordinance established a 25 -foot height restriction. Id. The city denied the operator's request for a building permit and a variance because other amateur radio operators could communicate with an antenna less than 25 feet high and the applicant failed to demonstrate that he could not conduct some amateur radio operations with a 25 feet high or lower antenna. Id. 28. The Bodony court recognized that the height of an antenna limits the effectiveness of amateur radio communications. Id. at 1012-13. It then recognized that hypothetical, non -site specific opinions are irrelevant. The Court relied upon expert testimony which took into account the actual amateur radio equipment, the actual location, and the actual operations. Id. 29. The Bodony court also did not uncritically defer to the city's recited considerations, such as alleged detriment to the character of the neighborhood or to safety. It required the city to offer evidence of these concerns and to 38 show that its zoning action was the minimum regulation to address these considerations. See id. It further held that the findings of the Zoning Board did not preclude the court's consideration of the zoning action under PRB-1. Id. at 1013. 30. Bodony predates RM 8763 and 47 C.F.R. 97.15, so it mentions in passing the need to strike a balance between amateur radio operations and local concerns. Id. at 1012-13. At the same time, it demonstrates how PRB-1, and by extension 47 C.F.R. § 97.15, should be applied to prevent serious interference with an amateur radio operator's full rights under the license. Pentel v. City of Mendota, 13 F.3d 1261, 1263 (8th Cir. 1994). 31. Pentel provides a framework to determine whether a city's zoning action that does not preclude amateur radio operations nevertheless reasonably accommodates amateur radio communications with the minimum practicable regulation. See Pentel, 13 F.3d at 63-64 ("PRB-1 [] preempts a zoning ordinance that a city has not applied in a manner that reasonably accommodates amateur communications"). 32. "The federal government's interests are aligned with those of the amateurs, for amateur radio volunteers afford reliable emergency preparedness, national security, and disaster relief communications. Because there is a direct 39 correlation between an amateur's antenna height and her ability successfully to transmit and receive radio signals, federal interests are furthered when local regulations do not unduly restrict the erection of amateur radio antennas." 33. In Pentel, an amateur radio operator sought to erect a steel tower that was 30 feet in its retracted position and 68 feet when fully extended. Id. at 1262. The operator had utilized a 56.5 foot high antenna, which yielded some, but inadequate, domestic and international communications. Id. 34. In Pentel, the city's zoning ordinance limited all structures, including radio antennas to a height limitation of 25 feet. Id. The amateur radio operator applied for a variance. Id. The city evaluated the operator's application through a planning report, and conducted a planning commission meeting and two city council meetings. Id. at 1262. The city denied the application for a 68-feet high structure, but, in recognition of PRB-1, granted the applicant a specific use permit allowing her to maintain the 56.5-feet high antenna. Id. at 1262-63. 35. The Pentel court found that the city had violated PRB-1 and concluded that "[t]he city's decision to grant a variance that allows Pentel to continue using a wholly inadequate antenna does not constitute an accommodation in any practical sense." Id. at 1265. 40 36. The Pentel court rejected the approach which simply considers whether the city "properly balanced its interests against the federal government's interests in promoting amateur radio communications." Id. at 1264. 37. Instead, the Pentel court read PRB-1 "as requiring municipalities to do more -- PRB-1 specifically requires the city to accommodate reasonably amateur communications. This distinction is important, because a standard that requires a city to accommodate amateur communications in a reasonable fashion is certainly more rigorous than one that simply requires a city to balance local and federal interest when deciding whether to permit a radio antenna." Id. (citations omitted). 38. Pentel predated RM -8763, but it reached a consistent result. 39. The reasonable accommodation standard requires that a city consider the application, make factual findings, and attempt to negotiate a satisfactory compromise with the applicant. Id. 40. The findings of fact should be a documented, enumerated basis for the denial, not merely suggestions of reasons for denial contained in the record. See id. at 1264-65. 41. The Pentel court required the city's fact -findings to focus on whether the amateur radio operator could successfully complete amateur radio operations 41 under the site-specific conditions. See id. at 1265. Marchand v. Town of Hudson, 788 A.2d 250, 254 (2001). 42. The Marchand case affirms the Pentel approach. Marchand v. Town of Hudson, 788 A.2d 250, 254 (2001). Significantly, it post-dates RM -8763 and notes that RM -8763 mandates the Pentel approach and rejects any balancing test approach. See id. 43. In Marchand, the trial court had reversed the issuance of a building permit to erect three 100 -foot antennas based on the conclusion that the antennas upset the balance between local and federal interests. Id. at 252. The state supreme court vacated the trial court's decision, examining the "reasonable accommodation" standard in the process. 44. The Marchand court adopted the Pentel approach and concluded that, after remand, the city should consider "whether the particular height and number of towers are necessary to accommodate the particular ham operator's communication objectives." Id. at 255. Palmer v. City of Saratoga Springs, 180 F.Supp.2d 379.385 (N.D. N.Y. 2001). 45. Palmer also adopts the Pentel approach. Palmer v. City of Saratoga Springs, 180 F.Supp.2d 379, 385 (N.D. N.Y. 2001). 46. Importantly, Palmer establishes that a city may not simply state that it 42 considered the application, hold several hearings, and cite to PRB-1 in order to comply with 47 C.F.R. § 97.15. See Palmer, 180 F.Supp.2d at 383-87. 47. In Palmer, an amateur radio operator applied for a specific use permit to erect a 47-foot antenna. Id. at 380. The city held hearings, denied the application, and made detailed fact-findings. Id. at 380-81. After suit was filed, the city negotiated with the applicant and agreed to reconsider the application if the applicant provided additional information. Id. at 381. The city conducted additional hearings, but it still denied the application. Id. The city entered more detailed fact-findings, including fact-findings that a partially screened antenna was aesthetically unacceptable. Id. at 381-83. 48. The Palmer court, even with the city's detailed findings, concluded that the city "failed to reasonably accommodate [the applicant's] amateur communication needs in accordance with PRB-1." Id. at 380. 49. The Palmer court conducted a detailed analysis of the city's actions. Id. at 385. It concluded that the city "engaged [the applicant] in a strictly one-sided negotiation consisting of inflexible demands and the construction of hoop after hoop for [the applicant] to jump through." Id. at 385. 50. The Palmer court found it persuasive that the applicant provided voluminous data, documents, and drawings to support the design and height of the antenna 43 and that the applicant provided most of what the city requested. Id. 51. The Palmer court considered which of the municipality's demands were unreasonable, unnecessary, or illusory. Id. at 385-86. 52. The Palmer court examined the specific bands the applicant sought to use and whether the city's regulation restricted those bands. Id. at 385. 53. The Palmer court concluded it would be futile for any further proceedings before the city. Id. at 386. 54. The Palmer court found the city's actions to be preempted and ordered the city to grant the permit the applicant had agreed to and requested. Id. MacMillan v. City of Rocky River, 748 F.Supp. 1241, 1248 (N. D. Ohio 1990). 55. Macmillan confirms the necessity of a substantive critique of a city's zoning action. MacMillan v. City ofRockyRiver, 748 F.Supp. 1241, 1248 (N.D. Ohio 1990). 56. The MacMillan court found the city's denial of a permit to be preempted in part due to the city's limited knowledge and understanding of amateur radio operations or of PRB-1. Id. 57. The MacMillan court determined that a city cannot comply with PRB-1 if its officials lack an adequate understanding of the federal law and its requirements. Id. 44 58. The MacMillan court also was persuaded by evidence in the record that city officials' concerns regarding property values and neighbors' protests dominated over the federal interests in amateur radio operation. Id. Williams v. City of Columbia, 906 F.2d 994 (4th Cir. 1990). 59. Williams is the principal source for a contrary line of cases to Pentel which essentially uncritically defer to a city's zoning action through a balancing test. 60. In Williams, an amateur radio licensee twice applied for an exception to a city's 17 -foot height restriction for antennas. Williams v. City of Columbia, 906 F.2d 994, 995 (4th Cir. 1990). The federal district court had ordered the second request for an exception in an effort to ensure compliance with PRB-1. Id. The city denied the application a second time with the basic conclusion that it had complied with PRB-1. Id. 61. The Williams court erred by first assuming the traditional pre-PRB-1 deference to a city's fact -findings. See id. at 996. The court essentially utilized a standard of review for municipal action that had been rejected by PRB-1. See id. 62. Proceeding from its incorrect assumption regarding the proper standard, the Williams court then quoted excerpts from PRB-1, while erroneously concluding that under PRB-1, "the law requires only that the City balance the 45 federally recognized interest in amateur radio communications with local zoning concerns." Id. at 996-98. 63. Although the conclusion of the Williams court is not consistent with the text of PRB-1, it may be explained in part based upon where it arises in the context of the discussion in the opinion. The Court's conclusion that a balancing of interests is the proper test does not appear after a discussion of the text of PRB- 1, but as a response to an amicus position of the American Radio Relay League ("ARRL") that an amateur radio operator must be allowed to erect the antenna of choice without any restrictions from a city. Id. at 997-98. 64. The Williams court, moreover, did not require any real scrutiny of the city's zoning actions, and instead simply reverted to the pre-PRB-1 practice of deferring to a city's zoning action if the city recites that it is in compliance with federal law. Id. 65. Williams, therefore, turns PRB-1 on its head. The FCC later confirms this when it rejects the Williams balancing test as antithetical to the text of PRB-1. RM-8763 at ¶ 7. 66. The Williams balancing test resulted in the pre-RM-8763 cases ofHoward and Evans and the post-RM-8763 case ofAlgoma. Howard v. City of Burlingame, 937 F.2d 1376, 1380 (9th Cir. 1991); Evans v. Bd. of County Comm'rs of the 46 County of Boulder, Colorado, 994 F.2d 755, 762 (10th Cir. 1993); Bosscher v. Township of Algoma, 246 F.Supp.2d 791 (W.D. Mich. 2003). 67. Although the county ordinances limited the heights of structures to 35 feet, in Evans, an amateur radio licensee applied to erect a 125-foot antenna. Evans, 994 F.2d at 757. The county denied the building permit and a variance. Id. The county conducted several hearings and received testimony, including expert testimony. Id. at 757-59. 68. In Evans, the city summarized the process it followed when it recited: "[the Board must] specifically balance the needs of amateur radio proponents against the impacts on the neighborhood.... [I]n performing this required balancing, the Board finds that the needs of the Applicant ... do not outweigh the adverse impacts on the neighborhood." Id. at 758. 69. The Evans court was faced with a "balancing decision" by the city where aesthetics trumped amateur radio communications. See id. at 758-59. The court recognized the improper balancing standard when it commented that "[t]he County interpreted the FCC regulations to mandate a balancing between the needs of the amateur radio proponents and the adverse impacts on the neighborhood. In performing this [balancing] analysis, the County determined Evans' need for a higher tower was outweighed by aesthetic degradation of the 47 neighborhood and the potential reduction in property value." Id. at 762. 70. The Evans court then quoted from that portion of Williams which rejected the ARRL amicus argument and reaffirmed that the county could regulate the heights of antennas. Id. 71. Inexplicably, the Evans court relies upon Williams even though it subsequently acknowledges that "the balancing approach underrepresents the FCC's goals" and "[t]he Board in drafting its resolution mischaracterized its responsibility to reasonably accommodate as a balancing test." Id. at 762-63. 72. The Evans court, therefore, admits that the county applied the wrong standard and that the county's findings were derived from the wrong standard. Id. Yet, without explanation, it then finds that the county's balancing approach comprises a reasonable accommodation. Id. 73. Thus, Evans wrongly resurrected the "balancing standard." Id. 74. Algoma springs from Williams and Evans. 75. In Algoma, an amateur radio licensee applied to erect a 185-foot tall antenna when the city ordinances included a height restriction of 50 feet. Algoma, 246 F.Supp.2d at 793-95. The applicant admitted that he could transmit his simplex radio signal in all directions but south toward Grand Rapids, Michigan, due to the existence of trees and some topographical features. Id. 48 The applicant did not conduct emergency communications. Id. The city denied the application. Id. 76. In Algoma, unlike the instant case, the city considered and understood the applicant's amateur radio communication needs and the federal law from the beginning. Algoma, 246 F.Supp.2d at 793-802. 77. In Algoma, unlike the instant case, the city hired experts who conducted a site- specific analysis. Id. at 794-95. 78. The Algoma court affirmed the city's decision, citing Williams and Evans. Id. at 800-802. The court cited Pentel only for the proposition that an amateur radio operator is not entitled to erect the antenna of choice. Id. 79. The Algoma court did not mention RM-8763 even though, unlike Williams, Howard, and Evans, it rendered its decision after the enactment of RM-8763. 80. The Algoma court found that the city acted in good faith and comprehensively from the beginning. See id. It did not reach this conclusion simply because the city hired an expert, but rather because the entire process, including the work of the city-retained expert, was fair and comprehensive based upon an understanding of the applicant's site-specific amateur radio communication needs and the federal law. See id. 81. This Court adopts the approach in Pentel, Marchand, Palmer, Bodony, and 49 MacMillan. 82. Pentel, Marchand, Palmer, Bodony, and MacMillan best comply with the text of 47 C.F.R. § 97.15, PRB-1, and RM -8763. 83. Pentel, Marchand, Palmer, Bodony, and MacMillan provide the standard of review. 84. The reasonable accommodation standard of PRB-1 requires a municipality to (1) consider the application, (2) make factual findings, and (3) attempt to negotiate a satisfactory compromise with the applicant. Palmer, 180 F.Supp.2d at 385. Here, the City satisfied the first prong of the reasonable accommodation test: the City received Snook's application for a specific use permit; the planning department prepared a report to the Plaming and Zoning Commission; the Planning and Zoning Commission considered the matter and made a recommendation to the City Council; the City Council addressed the matter at two meetings; Snook's counsel engaged in a significant dialogue with City officials; and, the City hired an expert who prepared a report analyzing Snook's application. However, the record demonstrates that the City failed to make factual findings or engage in an attempt to negotiate a satisfactory compromise with Snook. 85. The City argues that its factual findings consist of the final ordinance, granting 50 Snook the 65- foot tower, and Dr. Long's expert report. The Court rejects this contention, concluding that the record as it exists, even with extensive briefing, argument of counsel, and evidence received during a bench trial, leaves the Court simply guessing at how and why the City arrived at its conclusion. Even counsel in his closing argument conceded, upon direct examination by the Court, that it is unclear exactly how the City Council arrived at the 65 -foot requirement. 86. Generally, the City's position is that it relied upon Dr. Long in its determination of tower height. In the conclusion section of his report, Dr. Long recommends a tower height of 50 to 60 feet if the main antenna mounted at the top of the tower is only to be used for the 20 and 10 -meter bands (which was not so). The City Council's 65 -foot height requirement, then, does not appear to be drawn directly from Dr. Long's report. Such a conclusion by the Court may be incorrect, however, if the Council chose to rely on an isolated reference from page five of Dr. Long's report, which refers to the comment section to PRB-1 and reads as follows: Analysis of Exhibit F — Building permit application In item 15 of this FCC document it states that a tower height of 65 feet ". . . represents a reasonable accommodation of the communications needs of most amateurs and the legitimate 51 concerns of local zoning authorities." Use of this incidental reference by the City Council, which in no way relates to Snook's technology or the individuality of his application, would have been improper. 87. Thus, the Court concludes there are no findings of fact in the record that explain the City Council's reasoning, on the face of the record or implicitly through the specific use permit, the expert's report, or other documentation. The City's failure to include findings of fact in the record indicates insufficient effort by the City to reasonably accommodate Snook's specific use permit application. 88. The City failed to make findings that the 65-foot height was the minimum possible regulation to achieve its legitimate purpose. 89. Further, the Court finds that the City failed to attempt to negotiate a satisfactory compromise with Snook. The record demonstrates that throughout the process the City rejected consideration of any height extending above the trees, although Snook and his expert indicated that communications could not be effective with the tower in the trees, and even the City's own expert advised that the VHF/UHF bands would need to operate "above the level of the treetops." 52 90. The record reflects that the representatives of the City lacked understanding of incorporation of the relevant federal standard into the decision process. The City Council's August 20, 2001 meeting minutes include the following comments with regards to adoption of the 65 -foot height requirement: Council member Jimerson said he commends Mr. Snook for wanting to be a ham operator, but doesn't think it's right for the City if the subdivision out there doesn't want it. He said there definitely isn't a need for one higher than 65 feet. Mayor Pro Tem Wyatt said he has mixed feelings about the whole thing, including how it got built in the first place. He said even worse is the fact that we are trying to clean up a mess that the federal government created that prevents anything that we try to do. He said we shouldn't be fooling ourselves to that point and said there are people in Washington D.C. we should be talking to about these problems. He said he would not support this ordinance because he has mixed feelings as to how we got to this point. 91. For the reasons set forth above, the Court determines that the City failed to meet the FCC's requirement of reasonably accommodating Snook's amateur communication needs in accordance with PRB-1 when it limited him to use of a 65 -foot structure, limited the antenna array, and required removal of the structure. Accordingly, the Court declares the height restrictions, antenna array restrictions, and structure removal requirement to be preempted, void, and unenforceable. The Court concludes that Ordinance 0-01-42 is preempted by 53 PRB-1. 92. Upon reaching such a determination, some courts have instructed the municipality to reconsider the applicant's request in compliance with PRB-1. See Marchand, 788 A.2d at 255. However, because in this instance the City was cognizant of its duties under PRB-1, due to the applicant apprising it of such obligations, and because these parties have a contentious history, the Court concludes that such an order would be ineffective to reach the necessary result. See Palmer, 180 F.Supp.2d at 386. Thus, the Court enjoins the City from interfering with Snook's use of his tower and antenna array at its current height, and orders the City Council to grant a specific use permit allowing a tower support structure and antenna array of 114 feet in height, with the condition that Snook maintain the screening of the mature trees surrounding the tower. 93. Based on the evidence presented and the applicable law, the Court denies Snook's request for a declaration that the May 2000 amendment to Ordinance 15B is preempted because its enactment did not comply with federal law. Snook has failed to meet his burden of proof on this issue. SECTION 1983 CLAIM 94. Snook alleges that the City's denial of his application for a specific use permit 54 for a 100-foot tower deprived him of his due process rights pursuant to 42 U.S.C. § 1983. Snook further alleges the City violated his due process rights by enacting and seeking to enforce the May 2000 amendment to Ordinance 15B without compliance with PRB-1 and in an ex post facto manner, engaging in arbitrary and capricious zoning actions, denying his December 1999 request for a permit, and engaging in bad faith prosecutions. 95. Section 1983 creates a cause of action against any person who, acting under color of state law, abridges "rights, privileges, or immunities secured by the Constitution and laws of the United States." 42 U.S.C. § 1983. PRB-1 DOES NOT CREATE A COGNIZABLE RIGHT UNDER § 1983 96. Generally, a person may not enforce an agency rule or opinion through a § 1983 action. Gonzaga Univ. v. Doe, 536 U.S. 273 (2002); Banks v. Dallas Hous. Auth., 271 F.3d 605 (5th Cir. 2001). 97. There is no unrestricted right, enforceable under § 1983, to conduct amateur communications. PRB-1 does not create a private right of action enforceable through the Fourteenth Amendment. Algoma, 246 F.Supp.2d at 797-98 (W.D. Mich. 2003) (applying Gonzaga Univ. v. Doe, 536 U.S. 273 (2002); Howard, v. City of Burlingame, 937 F.2d 1376 (9th Cir. 1991); cf. Palmer, 180 F.Supp.2d 379, 386 (assuming without deciding that PRB-1 amounts to a 55 federally protected property interest). 98. In Gonzaga, the Supreme Court considered whether the Family Educational Rights and Privacy Act (FERPA) creates a federal right enforceable under § 1983. In determining that it does not, the Court tightened the requirements for finding such a right. The Court rejected "the notion that our cases permit anything short of an unambiguously conferred right to support a cause of action brought under § 1983." Gonzaga, 536 U.S. at 283. The Court noted that "it is rights, not the broader or vaguer `benefits' or `interests,' that may be enforced under the authority of that section." Id. The Gonzaga Court further clarified that in § 1983 cases, just as in implied rights of action cases, the initial inquiry is "whether Congress intended to confer individual rights upon a class of beneficiaries." Id. at 284-85. "[W]here the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit, whether under § 1983 or under an implied right of action." Id. at 286. 99. Having considered the arguments of the parties and the relevant law, this Court concludes that PRB-1 does not create a right enforceable under § 1983 because it was intended to benefit federal interests, not individual interests, and because it created no clear command to local governments. See Algoma, 246 F.Supp.2d 56 791; Howard v. City of Burlingame, 937 F.2d 1376 (9th Cir. 1991). In PRB-1, the FCC found that the "strong federal interest in promoting amateur communications" warranted a limited federal preemption policy: "... local regulations that operate to preclude amateur communications in their communities are in direct conflict with federal objectives and must be preempted." PRB-1 ¶ 24. Considering the text of PRB-1 as a whole, it does not "unambiguously," with "explicit rights -creating terms," indicate Congress' intent to confer individual rights on amateur radio operators. 100. Moreover, PRB-1 does not create any rights in amateur radio operators. Rather, it directs local governments to "accommodate reasonably" amateur communications. 101. Thus, the Court concludes that a claim premised solely upon preemption is not cognizable under 42 U.S.C. § 1983. No OTHER CONSTITUTIONALLY PROTECTED PROPERTY INTEREST 102. Snook also alleges that the City denied him various substantive and procedural. due process rights enforceable under § 1983. 103. Substantive due process "forbids the government to infringe certain `fundamental' liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state 57 interest." Reno v. Flores, 507 U.S. 292, 301-02 (1993). Fundamental liberties are those which are "deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed." Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (internal quotation marks and citations omitted); Johnson v. City of Cincinnati, 310 F.3d 484, 495 (6th Cir. 2002). 104. "Procedural due process requires notice and hearing before being deprived of a protected interest." Algoma, 246 F.Supp.2d at 796. 105. To establish either a substantive or procedural due process violation, Snook must first demonstrate the existence of a constitutionally protected property or liberty interest. See Washington v. Glucksberg, 521 U.S. 702, 720-22 (1997). Here Snook alleges the existence of a protected property interest in a permit for the construction of a tower on his property. 106. "Where, as here, the deprivation of a constitutionally-protected property interest is alleged, a plaintiff must show either a `legitimate claim of entitlement to' or a `justifiable expectation of' a benefit, not merely 'an abstract need or desire for it.' A showing of entitlement or justification cannot be made, however, when a local government has discretion to deny a permit." Algoma, 246 F.Supp.2d at 796 (internal citations omitted). 58 107. Thus, Snook must show either a "legitimate claim of entitlement to" or a "justifiable expectation of' abenefit. SeeBd. ofRegents v. Roth, 408 U.S. 564, 569-70 (1972); Algoma, 246 F.Supp.2d at 796. A showing of entitlement or justification cannot be made, however, when a local government has discretion to deny the permit. Triomphe Investors v. City ofNorthwood, 49 F.3d 198, 203 (6th Cir.), cert. denied 116 S.Ct. 70 (1995). Here, the City's ordinances provide that "Specific Use Permits... may be issued" by City Council. Ordinance No. 0-81-1, Section 15.3 (1981). Because the City Council has the discretion to deny or modify requests for building permits and specific use permits, Snook has no vested property interest to build an antenna tower of his choosing on his property. Given this discretion, Snook cannot demonstrate the existence of a constitutionally protected property interest, which is a necessary predicate for his substantive and procedural due process claims. 108. Even if Snook had identified a constitutionally protected property or liberty interest, he has not established that the right to a specific use permit or building permit is "implicit in the concept of ordered liberty" and would be subject to the protections of substantive due process. See Algoma, 246 F.Supp.2d at 797. JUDICIAL REVIEW OF DUE PROCESS CLAIMS 109. Assuming Snook had some right, privilege, or interest enforceable under 59 § 1983, this Court concludes, based on the relevant evidence and applicable law, that Snook did not suffer any due process deprivations. PROCEDURAL DUE PROCESS 110. Procedural due process requires an adequately noticed hearing, the opportunity to present evidence, and a meaningful opportunity to be heard. Cleveland Bd. ofEduc. v. Loudermill, 105 S.Ct. 1487 (1985). Snook's procedural due process rights were satisfied because the City's determination regarding his specific use permit was preceded by notice and hearing, and followed by a written decision. See Palmer, 180 F.Supp.2d at 286. Snook received adequate notice, the City Council held two public hearings, Snook and his counsel submitted evidence, documents, and supporting argument, and the City Council made its decision granting a specific use permit in written form. SUBSTANTIVE DUE PROCESS 111. The Fifth Circuit uses the rational basis test for review of substantive due process claims. Shelton v. City of College Station, 780 F.2d 475 (5th Cir. 1986). Having considered Snook's substantive due process claims, the Court finds that Snook has not shown the City's conduct to be outrageously arbitrary. 112. "The power to decide, to be wrong as well as right on contestable issues, is both privilege and curse of democracy." FM Properties Operating Co. v. City 60 of Austin, 93 F.3d 167, 174 (5th Cir. 1996) (citations omitted). "[T]he 'true' purpose of the [policy], (i.e., the actual purpose that may have motivated its proponents, assuming this can be known) is irrelevant for rational basis analysis. The question is only whether a rational relationship exists between the [policy] and a conceivable legitimate governmental objective." FM Properties Operating Co. v. City of Austin, 93 F.3d 167, 174 (5th Cir. 1996) (citations omitted) (emphasis in the original). If the question is at least debatable, there is no substantive due process violation. Id. at 174-75. 113. Even though the City's actions did not constitute a reasonable accommodation, the City Council's conduct, in the form of its decision to permit Snook to maintain a tower at 65 feet instead of the 100 feet requested, was not outrageously arbitrary or a gross abuse of governmental authority based upon the record before the City. See also Palmer, 180 F.Supp. at 387. No Ex POST FACTO VIOLATIONS 114. City Ordinance Nos. 0-81-1 and 0-99-04, generally requiring specific use permits from city council for construction or erection of a tower within the City, were enacted prior to Snook's construction of his tower. City Ordinance No. 0-00-24, which deleted the 500 -foot residential setback for towers, and Ordinance No. 0-01-42, which granted Snook a specific use permit, are not ex 61 post facto laws because they did not criminalize Snook's prior actions, but rather permitted him alternative ways to comply with Ordinance Nos. 0-81-1 and 99-04. OTHER RELIEF 115. The Federal Declaratory Judgment Act, 28 U.S.C. § 2201, confers discretion upon the Court as to whether to allow an action for declaratory judgment. Kerotest Mfg. Co. v. C -O -Two Fire Equipment Co., 72 S.Ct. 219 (1952). 116. Snook is not entitled to declaratory relief regarding his criminal proceedings, however, because, absent bad faith, federal courts should not generally interfere with pending state court prosecutions. See Younger v. Harris, 401 U.S. 37 (1971); Intl' Soc y for Krishna Consciousness v. Dallas -Fort Worth Regional Airport Bd., 391 F.Supp. 606 (N.D. Tex. 1975); 28 U.S.C. § 2283. The City did not act with malice in prosecuting Snook because the City Prosecutor reasonably believed that Snook had violated provisions of a City ordinance not preempted by PRB-1 when she accepted charges and prosecuted Snook in Municipal Court. 117. Further, the federal anti -injunction statute, 28 U.S.C. § 2283, bars federal courts from staying proceedings in a state court. 62 MALICIOUS PROSECUTION 118. The City is not liable for a claim of malicious prosecution because such claim is barred by sovereign immunity. TEX. CN. PRAC. & REM. CODE 101.057(2); Wells v. Nacogdoches County, 197 F.Supp.2d 709 (E.D.Tex. 2002). COSTS 119. Based upon the foregoing, all costs shall be taxed and paid by the City. Signed at Houston, Texas, on this 26 day of August, 2003. DAVID HITTNER United States District Judge 63 Ham Radio towers ordinance, TA -06-10 Page 1 of 2 Kristen Maze From: Ken Brinich [Ken@hxbri.com] Sent: Wednesday, February 20, 2008 11:16 AM To: Kristen Maze Subject: Ham Radio towers ordinance, TA -06-10 Attachments: Proposed ordinance with comments(2-20-08).doc; Ken Brinich (Ken@hxbri.com).vcf Kristen: Attached is a word file of the draft ordinance with changes I propose and comments for several of the changes. I will send a hard copy as well. Rather than send the marked up version, I am only sending my version with comments. My marked up version is difficult to read. I will identify several of the changes I made. Towers that are retractable to 70 feet or less were moved to section A. If federal or state regulation requires painting of the towers, those painting requirements should trump the county's matte silver or grey requirements. "Property owner" does not capture the appropriate population who are subject to regulation. Tenants who want to erect a ham facility should be the applicant. It is not enough to say a ham licensee should be the applicant. Some operators are alien residents sanctioned as hams in their home country. The FCC recognizes these operators as well as domestic licensees. Proof of FCC, FAA, or ODA facility construction authorization should be required only in the event that the operator is required to obtain facility construction authorization from the FCC, FAA or ODA. In the vast majority of cases, the operators will not be required to obtain agency approval of their facilities. The agencies are unlikely to document that they do not require authorization. In any event it is an unnecessary burden to require the operator to attempt to obtain documentation from the agencies that no approval is required. Section A(6) said that owner has to provide documentation of his license. It did not say to whom it must be provided. Code enforcement should be able to go to knock on the door and ask for documentary proof of a license. 1 substituted language that the operator have available for inspection his license. Section B eliminates retractable towers less than 70 feet at retracted height. Section B(1) I clarified that underlying zone criteria, other than height criteria, apply. Section B(3) I changed to provide that submittal requirements are for a "building permit" application. Section B(3)(g) 1 changes to provide that if FAA or ODA require lighting, the operator shall provide a copy of the determination letter. Section B(4) I changed to provide that the application is for a building permit. Comments to the balance of the changes I propose are included within the attached document. Please forward these comments and the copy of the draft ordinance as revised by me to the Commissioners and to County counsel. 2/20/2008 Ham Radio towers ordinance, TA -06-10 Page 2 of 2 Regards, Ken Brinich «Proposed ordinance with comments(2-20-08).doc» Hendrix Brinich & Bertalan, LLP 716 NW Harriman Bend, OR 97701 541-382-4980 541-382-9060 (fax) ken@hxbri.com The information in this e-mail is confidential and may be legally privileged. It is intended solely for the addressee. Access by others is unauthorized. To comply with IRS regulations, I am required to inform you that this message, if it contains advice relating to federal taxes, cannot be used for the purpose of avoiding penalties that may be imposed under federal tax law. Any tax advice that is expressed in this message is limited to the tax issues addressed in this message. If advice is required that satisfies applicable IRS regulations, for a tax opinion appropriate for avoidance of federal tax law penalties, please contact your «Ken Brinich (Ken@hxbri.com).vcf» 2/20/2008 HENDRIX, BRINICH � BERTALAN, L.L.P. 716 NW Harriman St. Bend, Oregon 97701 541.382.4980 541.382.9060 fax ATTORNEYS AT LAW www.hxbri.com February 19, 2008 Our File: 3301.1 Kristen Maze Deschutes County Community Development 117 NW Lafayette Ave Bend, OR 97701 RE: Amateur Radio Tower ordinance, TA -06-10 Dear Kristen: Greg Hendrix, P.C. Ken Brinich, P.C.* Usa N. Bertalan, P.C. *admitted Oregon & U.S. Patent Bar FEB 2 2 ZQ08 I write to comment on the proposal to establish an ordinance regulating amateur radio towers. I wrote most of this letter prior to the opportunity to review the draft ordinance circulated on February 15, 2008. As the County proceeds with drafting an ordinance it bears repeating that state and federal law require the ordinance meet a two pronged test. First, the County must "reasonably accommodate'.' amateur.radio communications. Second, the County's authority to regulate is limited to a leastrestrictive standard. In the language of ORS 221.295, the ordinance "must represent the minimum practicable regulation necessary to accomplish the purpose of the city or county." There is a strong federal interest in preserving and promoting amateur radio communications. This federal interest lead to the adoption of PRB-1. On November 19, 1999 PB -1 was reaffirmed by Order RM-8763of the FCC. Many states, including Oregon, adopted state statutes that mirror requirements of PRB-1. The requirement of "reasonable accommodation" of amateur radio communications has been interpreted by the federal courts to preempt local jurisdictions' specific height limits, and requires that local jurisdictions negotiate with amateur radio operators to accommodate their needs. 147 CFR Sec. 97.15 Station antenna structures. (a) Owners of certain antenna structures more than 60.96 meters (200 feet) above ground level at the site or located near or at a public use airport must notify the Federal Aviation Administration and register with the Commission, as required by part 17 of this chapter. (b) Except as otherwise provided herein, a station antenna structure may, be erected at heights and dimensions sufficient to accommodate amateur service communications. (State and local regulation of a station antenna structure must not preclude 'amateur 'service communications. Rather, it must reasonably accommodate such communications and must constitute the minimum practicable regulation to accomplish the state or local authority's legitimate purpose. Kristen Maze Page 2 February 14, 2008 Amateur radio encompasses a variety of operations. Some ham operators communicate over relatively short distances during daylight hours only. Others communicate globally and operate their equipment at any hour of the day or night. Each amateur's operations have unique equipment requirements. State and federal law requires "reasonable accommodation" of all amateur radio operations. Many amateur radio operators chose to reside in rural locations. The choice of a rural residence rather than urban is a trade off. Rather than live in a close knit neighborhood where their kids can walk to school or to a friend's home, and where access is convenient to stores, work, places of worship, etc., these operators choose remote locations to minimize public impacts. This choice of a rural rather than urban residence is an accommodation by ham operators. Whatever regulatory approach the county adopts, it should acknowledge this accommodation. The County should attempt to reciprocate by making certain tower regulation does not limit siting options. In 1999 the FCC had the opportunity to review PRB-1. The FCC Order RM -8763 reaffirms PRB-1 by stating: We return once again to the position that we have stated earlier in this Order, that is, that the standards of reasonable accommodation" and "minimum practicable regulation" are sufficiently efficacious as guideposts for state, local and municipal authorities. We believe that effectiveness of these guidelines or standards can be gauged by the fact that a local zoning authority would recognize at the outset, when crafting zoning regulations, the potential impact that high antenna towers in heavily -populated urban or suburban locales could have and, thus, would draft their regulations accordingly. In addition, we believe that PRB-1's guidelines brings to a local zoning board's awareness that the very least regulation necessary for the welfare of the community must be the aim of its regulations so that such regulations will not impinge on the needs of amateur operators to engage in amateur operations." Locations that have little public impact, and present opportunities for long distance amateur radio operations are limited. Amateur radio operators do extensive research to find good locations for operations. Some choose to reside on the high desert because of the low density of public use, and because these locations offer clear horizons, low elevation vegetation, and few manmade structures. Siting in these locations takes advantage of the absence of land based sources of radio wave interference. It is a sensible and reasonable accommodation to place tall towers in rural settings where the public experiences little impact. Whatever regulatory approach is chosen, in order to "reasonably accommodate" amateur radio operations, the ordinance must preserve siting opportunities for tall towers. PRB-1 requires a "site specific, antenna specific, array specific, operations specific, ordinance specific, and [jurisdiction] specific analysis." Snook v. City of Missouri City, Texas No. 03-cv-243, (2003, U.S. Dist. Court for the Southern District Kristen Maze Page 3 February 14, 2008 of Texas). In Snook the federal district court declared that the City's 35 foot height limitation was preempted by PRB-1 because the City failed to reasonably accommodate Snook's amateur radio communication needs. Snook showed that his mode of operations required a tower 114 feet high. His choice of tower site was made, in part, because of the absence of CCRs and the suitability of the site for his mode of operations. The Court rejected a balancing test between the needs of the city and those of the amateur radio operator. The FCC has clarified as well that a balancing of interests approach to regulation is not appropriate2. The Court stated that PRB-1 must be read to require reasonable accommodation of the operator's needs. See also, Marchand v. Town of Hudson, 147 N.H. 380, 788 A.2d 250 (N.H. 2001). The lesson of these cases is that, notwithstanding contrary language in an ordinance, a licensed operator may construct a tower that meets the needs for his mode of operation. Local jurisdictions must accommodate the licensed operator's needs. The second prong of PRB-1 and ORS 221.295 (minimum practicable regulation necessary to accomplish the jurisdiction's need) is a restriction on the County's authority to regulate. In order to regulate the County must demonstrate that its regulation is necessary to accomplish a legitimate County need. Absolute height limits, as well as expensive or complex land use processes are inconsistent with the standard of minimum practicable regulation. Oregon land use procedures generally place the burden on the applicant to demonstrate compliance with land use criteria. Any regulation adopted by the County should shift this burden to opponents of tower construction. The standard of "minimum practicable regulation" is inconsistent with requiring an operator to demonstrate how his operations, which the County is required to reasonably accommodate, does not conflict with the County's legitimate needs. Placing the costs and burdens on operators is inconsistent with "minimum practicable regulation." A building permit process should require that the operator demonstrate he is licensed, and should require an acknowledgement that the proposed tower is consistent with his mode of operation. The building official's review of construction design would meet standards that address health and safety issues. Siting in a rural zone other than the LM overlay is sufficient to show an absence of public aesthetic issues. This process suffices to establish a prima facie case allowing construction. Regulation is authorized only to the extent necessary to meet a public need. If a tower located in a neighbor's viewshed affects that neighbor's aesthetic values, the neighbor may have a claim under applicable private CCRs. Typically operators avoid CCR problems by choosing locations unencumbered by CCR height restrictions. 2 In re -affirming PRB-1 in FCC Order RM -8763, the FCC rejected a balancing test. The FCC order provides: "In PRB-1, the Commission stated: `Nevertheless, local regulations which involve placement, screening, or height of antennas based on health safety or aesthetic considerations must be crafted to accommodate reasonably amateur communications, and to represent the minimum practicable regulation to accomplish the local authority's legitimate purpose.' Given this express Commission language, it is clear that a "balancing of interests" approach is not appropriate in this context"(emphasis added). Kristen Maze Page 4 February 14, 2008 Neighbors who chose to purchase land not benefitted by CCR height restrictions would have no recourse. That is a just and equitable result as they did not pay a premium associated with property protected by CCRs. They should not expect the County to create a property right in a viewshed that they did not bargain or pay for. Regulation of towers within an area identified as an important public scenic resource may be needed to accomplish a "legitimate public purpose." The landscape management overlay zone is such an area in Deschutes County. Travelers on scenic highways and rivers are members of the public that benefit from preservation of viewsheds. Where the county has not identified aesthetics or preservation of scenic views as a purpose in a particular zone, the determination that aesthetics regulation is necessary is problematic. Preserving viewsheds is unnecessary where, for example, the purpose of the zone is to preserve agricultural uses. And unlike scenic rivers and highways, public use in the EFU zone does not warrant aesthetic regulation of amateur radio facilities. Protection of viewsheds in zones other than the LM overlay zone should be left to CCRs or deed restrictions. Deed records put amateur operators on notice of these restrictions. They can make their own determination whether to purchase land encumbered by CCRs. If the County desires to go down the road of imposing aesthetic regulations, it must demonstrate the regulation is necessary to preserve a public interest rather than to preserve or create private property owners' views. Application of the minimum practicable regulation standard requires consideration of whether no regulation at all is appropriate. With approximately 700 licensed amateurs in Deschutes County the density of operators is extremely low. Of those 700, many licensees operate from fixed bases within cities or solely from mobile bases in vehicles. Deducting these operators from the 700 leaves few operators sited on property within the County's regulatory jurisdiction. The absence of any comments about the effect on the public viewshed (as opposed to complaints from private property owners upset that their private viewshed is affected by a tower going in next door) indicates that regulating amateur radio towers is a non -issue. Regulating in response to a non -issue fails the minimal practicable regulation standard. In summary, the ordinance should be limited to requiring a building permit application, with the following provisions: 1. Proof of a license or authority to operate. 2. A declaration that the applicant's structure is appropriate for his intended operations. 3. No specific height limit. 4. No specific screening requirements. 5. Site plan approval in the LM overlay. Regards Iden Mink c: Laurie Craghead County Commissioners 2/11/08 Dennis Luke: Comments: Deschutes County Tower Regulation for Amateur Radio Operators 1. There is NO provision in Oregon Real Estate Law for view or scenic easements. 2. Amateur Radio is a hobby. Pecuniary interest is prohibited by FCC rule. 3. Amateur Radio operations are required to be in the "public service" as a primary use, again by FCC rule. 4 .Requirements for amateur radio towers to be regulated as commercial antenna support structures is NOT a "reasonable accommodation" Per FCC Order DA99- 2569. 5. A basic application fee of $2,500.00 is again not in the "reasonable accommodation" area and considered excessive and punitive. 6. Regulation of number of antenna support structures and their height is beyond the purview of Deschutes County which should defer to FCC regulation as per order above. 7. Why has this issue become front burner in this county? If the major issue is one of aesthetic appeal and view infringement, see 1. above. 8. Strongly recommend the commission decision to table this item without action. Verj best regards, George H. Morton