[PVRCNC] Re: [PVRC] Zoning wording advice

[Jim Jordan K4QPL]

Since making this posting, Brian has provided me with a copy of the proposed
ordinance. My comments:

1) Plant your corn early in Vance County this year! In other words, if there
are any PVRC members in Vance Co. besides Brian thinking about putting up a
tower, do it now. Nonconforming uses ("Grandfathered") are generally
completely safe if they're in place when the ordinance is enacted. However,
if they cease to be used for the intended purpose, generally for a year, the
nonconforming use may be lost. Likewise, if a tower is downed by a storm or
ice, failure to promptly rebuild can also subject you to a subsequently
enacted ordinance.

2) If they're going to enact a zoning ordinance, DON'T HELP THEM TO GET IT
RIGHT! Brian is correct. The proposed language is ambiguous. The good news
is the legal principle that zoning is not favored as it is a limitation on
private property rights and therefore ambiguities will be resolved against
the authority and in favor of the property owner. They define
"Telecommunications Towers ("Cell Towers")" The parenthesis is arguably
equivalent to a definition. Don't ask them to exempt amateur radio--they may
just broaden their definition to include it or put in a new section with
height restrictions and setbacks. They are also limiting the applicability
elsewhere in this proposed ordinance. In the chart of uses, for example,
they refer to them as "Commercial Communications Towers (Cell Towers)". Note
the added word "Commercial". That evidences a clear intent not to include
"Amateur." The chart also shows the towers are prohibited in standard
residential zoning. Here another presumption comes into play--"No law is
intended to violate another law." The authority must be presumed to know
about PRB-1 and that therefore they do not intend to restrict amateur use
siunce they cannot prohibit an amateur tower in a residential district
without "reasonable accommodation." Again good ammunition to contest any
restriction.

3) The "shall not interfere" language is an attempt to get around federal
preemption. In the same paragraph they go on to say, "Violations shall be
considered zoning violations and shall be corrected under the enforcement
provisions." I think that what they're doing is probably OK to the limited
degree that in addition to FCC sanctions, a violator could lose his
privileges under the zoning statute. They're not trying to limit
communications, they're just saying if you want a tower, here are the rules.
Here again, don't rock the boat. Wouldn't it be great if this language could
be used against BPL facilities? If the FCC doesn't do something, get the
county to go after them on zoning.

Bottom line: County wide zoning WILL happen almost everywhere. You won't
stop it.  Most of the language is copied from somewhere else or prepared by
laymen with input from the County Attorney who in the smaller counties is
just another lawyer who has the county for his client, often part time.
Unless they try to explicitly regulate amateur towers, our best position is
ambiguity---"That ordinance doesn't apply to us because...." Counties don't
like fights (well, most of the time) and usually don't want to spend their
legal budget litigating a case that only affects one specific, not very
important situation. I've won some very good positions on zoning for clients
by pointing out the deficiencies in the wording of the ordinance--after it's
already been enacted and they don't want to go back and re-do it. This is a
classic case where you won't be doing hams any good by pointing out the
drafters' ignorance and forcing them to learn how to write a "good"
ordinance. The presumptions in the existing language are better than
anything we could get through political action where hams are a very small
and misunderstood minority.

73,

Jim, K4QPL

----- Original Message ----- 
From: "alsopb" <alsopb at gloryroad.net>
To: <pvrc at mailman.qth.net>
Sent: Thursday, December 29, 2005 2:11 PM
Subject: [PVRC] Zoning wording advice


> Guys,
>
> Vance county in NC is trying to bring institute zoning for the first
> time.  Getting favorable tower wording the first time would be a real
> benefit.
>
> I have a draft of the proposed ordinances in PDF file format.  I'm
> looking for someone with expertise to review it for me.
>
> I've tried contacting several of the Volunteer Legal eagles on the
> ARRL website but it is hopelessly out of date and incorrect.
>
> Trying to read this zoning stuff is impossible.  However any zoning
> which includes wording such as:
> "A. Towers shall not interfere with normal radio and television
> reception in the vicinity. "
>
> doesn't seem to be a friendly one.
>
> 73 de Brian/K3KO
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