[South Florida DX Association] Restrictive Local Zoning Ordinance Proposed as Court Date in California Antenna Case Nears

[Bill]

From: Tony N2MFT



 

http://www.arrl.org/news/stories/2008/12/19/10512/?nc=1


Restrictive Local Zoning Ordinance Proposed as Court Date in California
Antenna Case Nears


As his February 2009 court date approaches, Alec Zubarau, WB6X, of Palmdale,
California, gets ready to battle his town after being ordered to dismantle
his previously approved antenna system. The City of Palmdale has widened its
opposition to Amateur Radio antennas by proposing an ordinance
<http://www.arrl.org/news/files/Palmdale_Antenna_Ordinance_DRAFT.pdf>
written to thwart the installation of antenna support structures throughout
the city.

In 2005, Zubarau applied for a building permit to erect an antenna support
structure on his property. The City approved his request, and building
permit in hand, Zubarau installed a 22 foot tall crank-up tower (with an
ultimate height of 55 feet), but did not place an antenna atop the
structure. He also installed a 23 foot tall mast on his house, for a total
mast height of 43 feet; he installed an inverted-V on the mast. In January
2007, he placed a 4 element 20 meter SteppIR antenna on the crank-up tower,
and the neighbors started complaining to the City.

ARRL Southwestern Division Vice Director Marty Woll, N6VI, said that the
neighbors' assertions consisted of what he called "the typical complaints:
Aesthetic impact, diminution of property values and RF interference. The RFI
complaints were general in nature; no direct evidence was shown of actual
RFI, but the City's Planning Commission staff took the position that "based
on anecdotal evidence presented by the homeowners, the transmissions
occurring from the antenna are causing interference with electrical
equipment in the surrounding neighborhood."

Woll said that after Zubarau installed the StepIR in 2007, the City of
Palmdale, acting on a petition signed by almost 70 of Zubarau's neighbors,
voted to revoke Zubarau's original building permit after he had relied on it
in putting up his tower. "In order to gain a continuance, Zubarau told the
Planning Commission he would remove the SteppIR, in essence, reverting his
antenna configuration back to the way to it was before he installed the
antenna" said Len Shaffer, WA6QHD, Zubarau's attorney. "At the next hearing,
he was ordered to remove not only the antenna, but the support structure, as
well."

The City's planning staff also pointed out that Zubarau's recently erected
horizontal array extends three feet into the required 10 foot sideyard
setback, and that the active array exceeds thirty feet in height beyond the
limit in the ordinance.

"Because Zubarau's permit referred to the support structure as 'an antenna
with cage (the base)' and the Planning Commission called it a tower antenna,
everyone assumed it was indeed an antenna," Shaffer recalled. "When I
pointed out to the Planning Commission that it was nothing more than a
support structure and did not radiate, they were surprised. They asked if
the support structure functioned as an antenna without the horizontal
element. I told them it did not. Judy Skousen, Palmdale's Assistant City
Attorney, told the Commission did not matter -- the permit and application
was for a tower antenna and that is what it was. It did not matter if the
nomenclature was added by city employees rather than Zubarau."

"After exhausting his administrative remedies, Zubarau challenged the action
in the courts, aided by Shaffer," Woll said "The court date has been set for
early February 2009." Woll continued, saying that the planning staff is
placing the burden on Zubarau, saying that he has not submitted a
site-specific engineering study showing that the operation or transmission
from his house is not interfering with residential uses. The staff also
notes that the FCC has failed to resolve RFI complaints in this matter,
inferring that the City must act to solve them.

Palmdale Proposes Rewrite of Amateur Radio Antenna Ordinance 

Shortly after issuing the permit revocation order, ARRL Southwestern
Director Dick Norton, N6AA, said that the City of Palmdale began drafting an
amended antenna ordinance that placed severe restrictions on all Amateur
Radio antennas. "The draft was released just before Thanksgiving, and a
hearing was scheduled for December 4," Norton said. "Prior to that hearing
and at the request of Vice Director Marty Woll, N6VI -- who attended the
Palmdale Planning Commission meeting along with about a dozen local hams and
supporters -- ARRL General Counsel Chris Imlay, W3KD, wrote a lengthy letter
to the City Attorney pointing out numerous flaws in the proposed ordinance
and explaining why many of its provisions are void or unenforceable, being
pre-empted by federal or state law."

In his letter, Imlay explained to the City that it is without authority to
resolve RFI complaints; the jurisdiction is solely that of the FCC, as
stated in the Communications Act of 1934, as amended. "The Federal
Communications Commission has exclusive jurisdiction over radio frequency
interference (RFI) matters, and technical matters specifically," he said.

Imlay pointed out that the "first specific concern in the draft ordinance is
the statement that 'an Amateur Radio antenna, the operation of which causes
unreasonable interference with electrical equipment in the surrounding
neighborhood, is not compatible with that neighborhood.'"

This is "patently false," Imlay said, stating "there is no correlation
between the presence of an outdoor Amateur Radio antenna, its height,
configuration or placement and radio frequency interference (RFI) to home
electronic equipment. As a matter of technical fact, the higher an antenna,
the lower the electrical field in the horizontal plane of the home
electronic equipment, and the less the likelihood of RFI in that equipment.
Furthermore, the 'cause' of RFI is not the power of an Amateur Radio
station, or the presence of an antenna, but rather the inability of home
electronic equipment to reject unwanted signals. FCC regulations clearly
obligate most home electronic equipment to accept any interference from
licensed radio services as a condition of the permitted marketing and
operation of that equipment."

Furthermore, in a Conference Report from the 97th Congress in 1982, Imlay
explained that Congressional report "...is further intended to clarify the
reservation of exclusive jurisdiction to the Federal Communications
Commission over matters involving RFI. Such matters shall not be regulated
by local or state law, nor shall radio transmitting apparatus be subject to
local or state regulation as part of any effort to resolve an RFI complaint.
The Conferees believe that radio transmitter operators should not be subject
to fines, forfeitures or other liability imposed by any local or state
authority as a result of interference appearing in home electronic equipment
or systems. Rather, the Conferees intend that regulation of RFI phenomena
shall be imposed only by the Commission."

Saying that the Conference Report went on to clarify "that the exclusive
jurisdiction over RFI incidents (including preemption of state and local
regulation of such phenomena) lies with the FCC," Imlay told the City of
Palmdale that "Obviously, state or local regulations based on interference
from one radio service to another would directly frustrate the intention and
goals of the Communications Act of 1934, as amended."

Imlay said that in 1985, the FCC said that the "federal power in the area of
radio frequency interference is exclusive; to the extent that any state or
local government attempts to regulate in this area, [its] regulations are
preempted." Imlay explained that the FCC concluded that the Federal
regulatory scheme is so pervasive that it is reasonable to assume that
Congress did not intend to permit states to supplement it.

According to Shaffer, the City of Palmdale does not think antenna support
structures are "compatible" with the town's image. In a hearing of the
Palmdale City Council earlier this year, the following exchange took place:

Councilmember Hofbauer: The Ordinance did not provide a prospective review.
So, I mean, at what point do we? Let's, let's take this out of the context
of his antenna. You've got a building that is down the street we don't like,
do we retroactively revoke the permits and come and bulldoze it?

Mayor Ledford: That's not.

Councilmember Hofbauer: Because we don't like the paint color on it now?

Mayor Ledford: That's not the same.

Councilmember Hofbauer: No, it could be termed incompatible.

Mayor Ledford: I don't think the courts would support that. I think an
antenna, like this, gives us that discretion." 

"The Mayor told the Council that while, if a house was built that was not
compatible with the neighborhood, they would not bulldoze it to the ground,
this is 'just an antenna,' and they can get rid of it if they want to,"
Shaffer said.

Going to Court 

Norton said that the ARRL's Amateur Radio Legal Defense and Assistance
Committee has voted to contribute $5000 toward the cost of Zubarau's lawsuit
against the City of Palmdale. "More than $1500 has already been contributed
by clubs and their members from throughout the Southwestern Division, and
this contribution from the League-managed Antenna Defense Fund will further
help defray the expenses of preparing for the February 2009 court date,"
Norton said. "Len Shaffer is performing the legal work pro bono, but even
just compiling the record to present in court can be costly."

ARRL Defense Committee Chair Jay Bellows, K0QB, said that although the case
has not yet reached the appellate level, "The egregious nature of Palmdale's
actions -- including ordering removal of a previously approved antenna tower
-- the potential impact on a large number of amateurs and the existence of
substantial local financial support from the ham community were significant
factors in the Committee's decision to provide support for this case."

Bellows said he has participated in nearly 100 tower and antenna matters,
from working with local hams and municipalities on tower ordinances to
individual tower issues including litigation at the local and appellate
level over the past 20 years. "If I've learned anything," he said, "I
learned that a simple, clear explanation of who we are, what we do and why
the antenna is needed are essential. Even if those steps are perfectly
executed, the local authority (in this case, the City of Palmdale) has to be
convinced that: 1. Federal law trumps the local zoning interests either
generally or in the particular case; 2. The amateur is going to be politely
persistent despite opposition from the locality; 3. The cost to the locality
in time and treasure will exceed any political benefit in 'protecting its
citizens from the scourge and despoliation of ugly Amateur Radio antennas.'
Still, the single most important factor is that the amateur should always be
the guy in the 'white hat,' no matter how reprehensible or offensive the
actions of the locality or the opposing neighbors."

Norton went on to say that Woll has met with Palmdale hams and the
management of the Palmdale Public Safety Department, who he described as
"supportive of hams." Woll and Keith Hoyt, K6GXO, will meet with Palmdale's
Planning Department and Assistant City Attorney in early January. "The
proposed ordinance has been the subject of considerable discussion in
Amateur Radio circles," Norton said. "Local hams, [as well as] Division and
National League representatives are devoting considerable time and effort
toward resolving the issue."

 

-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://mailman.qth.net/pipermail/sfdxa/attachments/20090209/ad49b0f8/attachment-0001.html