[PVRCNC] Re: [PVRC] Zoning wording advice

[Jim Jordan K4QPL]

Hi Brian,

I'm copying this to the reflector as it may clarify questions others may
have thought but not asked.

Well, I don't disagree with your desire for certainty. But the people in
MD and FL and other areas have gotten certainty---50-75' limits and 1' or 2'
x height setbacks. Is this what you want? Most of these things never get
close to court. The zoning guys get an opinion from their counsel that they
will lose in court and then they cave in. I've almost
never had zoning cases actually get litigated because the zoning authorities
will compromise or just give up if their ordinance is defective. If it's a
major problelm, they'll rewrite it later. Or, if it isn't truly ambiguous,
the developer doesn't want to test it.

 In this case the ambiguity in the current draft is so much in your favor
that the intent is only
to regulate commercial towers that I sure wouldn't want to go to them and
say, "What about ham towers? There isn't anything in the ordinance on that."
You probably wouldn't like what you get.

I'm just applying the same principles that developers like to see. If it
isn't clearly regulated, you can probably do it and let someone else try to
plug the loophole.

You're right. There probably aren't many hams in Vance Co so here again best
not to put it into the ordinance.

I would keep an eye on developments and watch to be sure they don't realize
their problem and fix it before the final draft. If the ordinance can
reasonably be interpreted to regulate ham towers, then obviously one doesn't
stand by and watch it happen. The ordinances need to be reviewed on a case
by case basis.

73,

Jim
----- Original Message ----- 
From: "alsopb" <alsopb at gloryroad.net>
To: "Jim Jordan K4QPL" <k4qpl at nc.rr.com>
Sent: Friday, December 30, 2005 7:10 AM
Subject: Re: [PVRC] Zoning wording advice


> Jim,
>
> Thanks for reading this with an educated eye.
>
> However, your reading of it seems to imply:  If challenged in court,
> they will loose because of ambiguity, PRB-1 etc.  That's not the
> position I want to be in.  I'd rather have the rules clearly defined
> and not have to resort to a lawsuit.  Of course, unreasonable clearly
> defined rules are not acceptable.  Look at the costs and limited
> successes of those who have attempted to use PRB-1 to get their tower
> up. To expect the average ham to go though such legal actions is not
> reasonable.
>
> I do agree than once on paper, getting them to change anything would
> be quite difficult.  I suspect they will be sufficiently bloodied by
> the institution of zoning that there will be great reluctance to
> revisit anything.
>
> In my opinion, the "not to intefer" requirement in any form is a death
> sentence for operation.  One complaint, valid or not, and you are QRT.
>
> In reality, there are few hams in Vance county and most are tech's.
> There is no base to organize and no possible political force which can
> be assembled.
>
> Thanks again.
>
> 73 de Brian/K3KO
>
> Jim Jordan K4QPL wrote:
> > 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.
>
> Six months is indicated.
> >
> > 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
> >>_______________________________________________
> >>PVRC mailing list
> >>PVRC at mailman.qth.net
> >>http://mailman.qth.net/mailman/listinfo/pvrc
> >
> >
> >