Amateur Radio - Legal Library

 

Documents not on CD-ROM accompanying the ARRL book Antenna Zoning:

  • American Red Cross Letter to ARRL - GIF
  • ARRL Funding Criteria for Litigation (at Minute 43) - PDF
  • Rohn Tower Letter on Fall Radius of a Guyed Tower - PDF 
  • Sabre Tower Letter on Fall Zone of an Unguyed Tower - PDF

Legal documents not readily available from free published internet legal sources, and sometimes not on CD-ROM accompanying the ARRL book Antenna Zoning: 

Wodtke v. Village of Swanton (Fulton County, OH, 2013 and 2014)

Ham (WW8N)  sought to erect 60' of Rohn 55G on a 0.2041 acre lot. His neighbors consented. The zoning ordinance allows an antenna for "wireless telecommunication" not more than 20 feet above the roof-line. Ham applied for a variance but was denied. On appeal from the Planning Commission, the Village council also denied the variance. Ohio passed O.R.C. Sec. 5502.031 (an Ohio version of PRB-1), but the Village claimed that 5502.031 is unconstitutional, based on Ohio's Home Rule Charter. Court holds the Village's ordinance to be preempted.

In the final judgment entry, the Court ruled that the "wireless telecommunication" section did not apply. Then things got exciting.

  • Swanton's Application to Ct of Appeals for Reconsideration - PDF
  • Decision of Ct of Appeals dismissing Swanton's appeal as not timely filed - PDF
  • Ct of Common Pleas Final Judgment, January 17, 2014 [now a "nulity"] - PDF
  • Decision of the Ct of Common Pleas, August 20, 2013 - PDF

Disclosure: K1VR qualified pro hac vice with the Ohio Supreme Court and was of counsel in this matter.

Resolution of Findings and Conclusions, Ira J. Saber (Board of Adjustment, Township of Morris, NJ, 2012)

Ordering issuance of a building permit to N2IS for an 86' Triex DX-86 crank up, with 4' of mast above it, in this suburban NJ town. 

  • Decision -  DOCX
  • Opinion Letter from Board Counsel - PDF

Disclosure: K1VR qualified pro hac vice with the New Jersey Supreme Court and was counsel in the matter, appearing before the Board of Adjustment.

Application of Paul K. Isaacs (NYC Board of Standards and Appeals, 2012)

Ham (W2JGQ) obtained building permit antenna system comprised of 40’ of Rohn 45, topped by a Force 12 Yagi, on the roof of a four story brownstone in Southern Manhattan. The roof is 58 feet above ground.

After the erection of the system, the Department of Buildings declared its intention to revoke the building permit, claiming that this antenna system was not an ordinary accessory use. After an appeal within the Department of Buildings, two hearings were held before the New York City Board of Standards and Appeals - which ruled 4-1 that the building permit was properly granted.

  • Decision - PDF   
  • Photo of antenna system - JPG
  • 1955 NYC Dep't of Buildings Memorandum - PDF
  • Isaacs Submission of November 13, 2012 - PDF
  • Isaacs Submission of September 25, 2012 - PDF
  • Isaacs Submission of July 12, 2012 - PDF

Disclosure: K1VR was of counsel in the matter, and appeared before the BSA.

Taormina v. Storey County, Nevada (USDC Nevada, 2012)

The County Commission denied a permit for any amateur radio antenna support structure over 45' in height on 10 acres owned by K5RC. The case was settled when the Commissioners agreed to grant the permits necessary for four towers 45' high, and four towers more than 45' high (120', 140', 140' and 175').

  • Complaint - PDF
  • Stipulation (of Settlement) and Order for Dismissal, with Conditions - PDF
  • Photo layout of approved structures as of May 2012 - PDF
  • Photosimulation of antenna system as of Fall 2012 - JPG
  • Photo of antenna system as of June 2013 - DOC, JPG
  • Final Sign-Off Letter - PDF

Disclosure: K1VR was counsel in this matter, and appeared before the District Court.

In re Application of Gottfried (Freylinghuisen, NJ, 2007-2008)

Ham (K2NG) applied for a building permit in a town where the maximum height appeared to be 18 feet, plus 15%, for a total of 20.7 feet as a firm, fixed maximum. Counsel for the Zoning Board, and Town Counsel, each wrote that a building permit could be issued, without the requirement for a hearing before the Zoning Board, or a variance, as a result of NJ and federal law preemption. Separate antennas were erected at heights of 22', 85', 88' and 117'.

  • Opinion of Counsel to the Zoning Officer - PDF
  • Opinion of Town Counsel - PDF  

Disclosure: K1VR prepared the supplement to the building permit application.

Boyd v. Town of Ransom Canyon

547 FSupp 2d 618 (USDC ND Texas, 2007)

Court rules that WA5VSK is ineligible for a Section 1983 claim. That is the only holding of the District Court opinion. But if you think WA5VSK lost, be sure to read the Mediation Agreement for an eye-opening surprise! Documents courtesy of Atty. Dulan Elder, who did a masterful job getting $40,000 and the costs of mediation without a Section 1983 claim, as a result of multiple violations of the open meetings act.

Evans v. Burruss (MD Court of Appeals, 2007)

401 Md.586, 933 A. 2d 872 (MD Court of Appeals, 2007)

         http://www.courts.state.md.us/opinions/coa/2007/1a07.pdf

Ham (N3HBX) applied for building permit (not special permit, not variance) for four 190' antenna support structures.  Permits were granted as a matter of right. He began construction. Over a year later, a new bylaw promulgated. Court holds rights have vested. Held, the grant of a building permit is a ministerial act.  No notice to neighbors is required.

  • Motion for Summary Judgment - PDF
  • Statement of Material Facts - PDF
  • Statement of Grounds and Authorities - PDF
  • Photo of erected structures - JPG  

Disclosure: K1VR was of counsel in subsequent litigation, signing the Motion for Summary Judgment when the neighbors claimed private nuisance. After the MSJ and brief were filed, the neighbors withdrew the claim, with prejudice.

In the Matter of Governale (County Bd. of Appeals of Baltimore Co., MD, 2007)

Ham (W3LL) obtained a building permit in 2004. Neighbors appealed and the ham requested  approval of his AN Wireless HD-90 antenna support structure, topped by a SteppIR and VHF/UHF antennas, to a maximum height of 99'. A neighbor who was a lawyer represented himself and some (but not all) other neighbors.

  • Decision - PDF
  • Post-hearing Submission by W3LL - PDF
  • Submission by W3LL - PDF
  • Photo of approved structure - JPG

Disclosure: K1VR was of counsel in this matter and appeared at the hearing with Howard Alderman, Esq., of the Maryland Bar.  

Smith v. Board of County Commissioners, Co. of Bernalillo (NM, 2005)

137 N.M. 280, 110 P.3d 496  (N.M. 2005)

Complicated history in case involving W6TER. Court holds that "reasonableness" cannot be read into the ordinance as a consideration in determining "customarily incidental" use. Para. 25 holds two 130-foot antenna systems are an accessory use.   

  • W6TER Brief on Remand (below) - DOC
  • W6TER Brief in Chief to NM S. Ct. - DOC
  • ARRL Amicus Brief - DOC
  • Slip Opinion of the New Mexico Supreme Court - DOC, PDF, WPD

Disclosure: K1VR was of counsel in this matter.

Naumburg K5HAB (Bernalillo Co., NM, 2004)

Needs case created by Gerry Smith, W6TER. Support structure of 80 feet, with 12 feet of antennas on top, total: 92', on 0.89 acres.  

  • Needs Case (as submitted) - PDF or DOC
  • Grant of Special Exception - PDF
  • Photo of antenna system - JPG

Disclosure:  K1VR was of counsel in this matter.

Hammett K4VV (Loudon Co., VA, 2004)

Jack Hammett, K4VV, sought a zoning determination that his proposed installation of two 120-foot and two 100-foot towers would be permitted under the Zoning Ordinance.

Disclosure:  K1VR was counsel in this matter.

Chedester v. Town of Whately (MA, 2003)

Bylaw with 35’ maximum height preempted by PRB-1 and state statute. KB1IPR’s building permit for 140' structure reinstated.  

  • Complaint - WPD
  • PTC Memorandum - WPD
  • Trial Memo - WPD
  • Pltf Rqstd Rulings of Law - WPD
  • Pltf Rqstd Findings of Fact - WPD
  • Superior Court Decision - PDF  
  • Photo of finished structure - JPG

Filings courtesy of Atty. Alan Seewald. Disclosure: K1VR appeared for the applicant before the town board.

Snook v. City of Missouri City, Texas (USDC, 2003)

Courtesy of Orin Snook, KB5F (holding that 65' not adequate to conduct effective communications). Ham constructed 114' on 0.958 acre lot in residential subdivision. City ordinance preempted by PRB-1. 

  • Final Judgment - PDF
  • Order - PDF

Disclosure: K1VR consulted to Snook in this matter.

Marchand v. Town of Hudson (NH, 2001)

147 N.H. 380, 788 A.2d 250  (N.H. 2001)

Finds three 100’ structures to be an ordinary accessory use for KØTV.  Ruling that balancing not appropriate. “(T)o "reasonably accommodate" amateur radio communications . . . the ZBA may consider whether the particular height and number of towers are necessary to accommodate the particular ham operator’s communication objectives.”

  • KØTV Brief to NH Supreme Court - DOC
  • Justification of Need - ZIP Package
  • ZBA Decision on Remand - PDF 
  • Decision at 147 NH 380, 788 A.2d 250 (NH 2001), or

http://www.courts.state.nh.us/supreme/opinions/2001/march221.htm 

Courtesy of Atty. Mike Raisbeck, K1TWF. Disclosure: K1VR consulted to the applicant.

Palmer v. City of Saratoga Springs (USDC NDNY, 2001)

  • Complaint - PDF or DOC
  • Federal Rule 34 Demand for Production of Documents - PDF or DOC 
  • Decision at 180 F.Supp 2d 379 (NDNY 2001) or  PDF   
  • Photo of the N2NVH home and antenna system - DOC

Courtesy of Atty. Albert J. Millus, Jr., WB2EQR, who represented Palmer, N2NVH (holding absolute height limit of 20' preempted, as "an unvarying height restriction on amateur radio antennas would be facially invalid in light of PRB-1"; and request for information on RFI was "unreasonable on its face.")

Anderson v. Planning Board of Islip (Supreme Court, Suffolk Co., NY, 1998)

  • Order on Petition - PDF

N2TX sought a special permit for a retractable (22'=>85') preexisting antenna system. Article 78 petition granted as Court finds all six arguments by Islip are arbitrary and capricious.

Korins v. Kornienko et al (Superior Court NJ, 1997)

  • Final Judgment - DOC
  • Petition to the Supreme Court of NJ (Denied) - DOC

Neighbors sued Kornienko (K2WK), claiming (private) nuisance due to RFI. Held: No factual basis plus 47 USC 301; dismissed with prejudice. In 1999, the Supreme Court of NJ declined to hear the case. Final Judgment courtesy of Walt Kornienko, K2WK.

Baskin v. Bath Twp. BZA (OH) (US Court of Appeals, Sixth Circuit, 1996)

This decision is Baskin II, Baskin's second trip to the Sixth Circuit Court of Appeals. Baskin I is reported at 15 F. 3d 569 (1994), holding that the district court's abstention was improper and ordering a remand. Baskin I may be found at https://bulk.resource.org/courts.gov/c/F3/15/15.F3d.569.92-4375.html

The late Bruce Baskin, W8PGD, sought permission for four towers. As the antennas would exceed the applicable height restrictions, he sought and received a variance, with conditions. After Baskin I remanded the case, the District Court found the fall zone requirement to be void and unenforceable as a failure to reasonably accommodate.

  • Unpublished Opinion - PDF or DOC 

Kleinhaus v. Town of Cortlandt (NY, 1996)

Zoning code contained a 35' height limit. W2XX applied for 120' on a 1.4 acre property; denied. Held: FCC regulations have the force of statutes.  Merely balancing town interests against Federal government's interests in promoting amateur communications is not enough.  Denial of variance set aside as irrational, arbitrary and capricious.  On remand to ZBA, 100' tower approved. Courtesy of J.P. Kleinhaus, W2XX.

  • Supreme Court Decision - PDF
  • ZBA Final Decision and Order - PDF

Rush Creek Golf Club v. City of Corcoran and Fraasch (MN, 1996)

Ham (KØSF) wins an appeal of the grant of a permit for his 130' structure. Damage to Trumpeter Swans wholly speculative; does not appreciably impair wetlands resources; less visual impact than farmyard equipment and nearby mobile home park; not a nuisance. 

  • Decision and Order - PDF 
  • Fraasch Written Argument - PDF 

Courtesy of Atty. John B. Bellows, KØQB.   

Pentel v. City of Mendota Heights (MN, 1994)

13 F.3d 1261 (8th Cir. 1994)

N0MRW wins significant circuit court case. Courtesy of Atty. John B. Bellows, KØQB

Bay v. ZBA of New Canaan (Superior Court at Stamford, CT, 1993)

Court finds antenna is an accessory use to a single-family residence, that multiple-antennas are customarily and reasonably incident to a single-family residence, and that the height, a 72' structure plus a 10' mast (total: 82') was necessary. Court accepts separation of 9' between antennas as necessary to avoid interaction. 

  • Unpublished Opinion - PDF or DOC 

Heinemann v. Town of Lyme, et al (USDC CT, 1993)

Bylaw with 35' maximum height, more height by Special permit.  USDC orders W1YG's Special Permit granted as applied for (78').

  • Pltf Memo of Law in Opp to Def's Mtn in Limine - PDF
  • USDC Ruling on Mtn Sum Judg - PDF
  • USDC Order - PDF
  • Local press coverage of decisions - PDF

Parma Heights v. Haase (OH Municipal Court, 1992)

Criminal misdemeanor case. K8VI not guilty of creating a public nuisance.   

  • Judgment with Opinion - PDF or DOC 

Courtesy of Atty. Robert M. Winston, W2THU.  

MacMillan v. Rocky River (OH) (USDC, Northern District of Ohio, 1990)

WA8ZHN won when Court found "significant federal interest in amateur radio communications" expressed in PRB-1. MacMillan I may be found at 748 F.Supp. 1241 (1990). This is MacMillan II, a grant of attorney's fees under §1988 by a Federal District Court after finding the bylaw valid but preempted as applied. Courtesy of Atty. Robert M. Winston, W2THU.  

Randle v. Phillips (District Court, Dallas County, Texas, 1985)

Defendant's Post-Trial Brief - PDF

A CC&R case in which W5BOS argued issues of notice, estopppel and equitable remedy.

1985 - The Year of PRB-1

Borowski et al v. City of Burbank (USDC Northern District Ill., 1984)

The case may be found at 101 FRD 59 (ND IL, 1984). There is a decision of the Court on class action status, and a subsequent Consent Decree.  This case is pre-PRB-1, but it is an antenna case where class action status was granted against a city in Federal court. It may have a positive effect when a ham's lawyer attaches it to a letter in a situation where the zoning ordinance fails to comply with PRB-1. This is the only known class action against an ordinance. Courtesy of counsel, Jim O'Connell, W9WU.

  • Decision of the Court, with Consent Decree - Word
  • Consent Decree, slip signed by Nicholas J. Bua, USDJ - PDF

Guschke v. City of Oklahoma City (USDC Western District Okla, 1982)

This final outcome of this lawsuit predates PRB-1.The ultimate court decision is widely available, but irrelevant, because, again, it was decided before PRB-1. Gushke (N5SW) challenged an ordinance that allowed 35' by right, up to 50' by Special use Permit, with an absolute ban on antennas above the height of 50'.

  • Plaintiff's Proposed Conclusions of Law and Argument - PDF

Spencer v. County Court of Clay County, MO (Circuit Court of Clay County, Seventh Judicial Circuit of Missouri, 1983)

Spencer (then ABØI, now K7KF), planned to erect five towers (150’, 138’, 118’, 75’, and 40’). Application for a special permit denied after hearings. Court finds ordinance unconstitutional, as it did not make it clear as to whether a special permit was required or not , and had no standards. Finding that the federal government had preempted the field. No direct correlation between height and safety or aesthetics. Direct correlation netweem height and reliatbility and range of transmission. Finding that this involves a prior restraint on non-commercial speech with no rational justification or standards, and there are lesser restrictive alternatives.

  • Findings of Fact, Conclusions of Law, and Order - PDF

Pirtle v. Wade, 1979 OK CIV APP 4, 593 P.2d 1098 (1979)

Suit in equity by homeowners to enforce a restrictive covenant which did not mention exterior antennas, but requires only “residential purposes.”  Covenant forbids a “noxious or offensive trade or enterprise . . . which may be, or become, anything annoying or a nuisance to the neighborhood.” Wade applied for approval and received no response. Held: This is a hobby “within the normal range of activities conducted at one’s residence.”   The existence of a radio antenna is not forbidden by the nuisance clause. The “approval by silence” clause granted permission. The court strictly construes language in favor of the unencumbered use of real property. 

Baysinger v. City of Northglenn (Supreme Court of Colo., 1978)

Cite as 195 Colo. 99, 575 P.2d 425 (1978). Baysinger (then WBØBAE, now WGØN) sued (as a class-action) when Northglenn adopted an ordinance requiring special use permits for all antennas. Held: Ordinance invalid as an unreasonable exercise of the police power. 

  • Opinion - DOC
  • Brief of Baysinger - PDF
  • Trial Transcript - PDF

Original materials courtesy of Atty. Marshall Quiat, AGØX.

Brown v. Twp. of Hinckley (Court of Common Pleas, Medina County, Ohio, 1976)

Reverses denial of variance for a 58' tower, in a town with a 35 foot height limitation. Follows reasoning in Wondrak v. Kelly, et al, 129 IS 268, and Dettmar v. County Board of Zoning Appeals, 28 Oh. Misc. 35. Orders issuance of a permit for the tower.

  • Opinion - PDF  

Dettmar v. County Bd. of Zoning Appeals (Court of Common Pleas, Hamilton County, Ohio, 1971)

Rejects Presnell v. Leslie, prefers Skinner v. Zoning Board and Wright v.Vogt. BZA upheld Building Inspector's decision to deny a permit to construct a 64'  antenna. " ''(U)ses customarily incident to single family home dwellings' . . . does not limit the use to the identical use chosen by the neighbors." "(E)ven though it may be unusual," "it is permissible . . .unless it is specifically excluded." 

Appeal of Slemenda (County Court of Allegheny County, PA, 1966), 115 Pitts.L.J. (1967)

Court finds that "In Order to effectively receive and transmit radio waves to communicate with other amateurs, it is necessary to utilize an antenna which must be elevated at least 40 to 50 feet above ground level." The Court rules that Slemenda may erect a 41-foot E-Z Way tower, despite a 30-foot maximum height, ordering the Borough "to issue the permit as applied for."

  • Findings of Fact and Order - PDF

Appeal of Schmigel (County Court of Allegheny County, PA, 1965), 114 Pitts.L.J. (1966)

After trial, Court finds "5.  A physical height of 50' above ground is required for an amateur radio antenna in order to effectively communicate with other radio amateurs in the United States and throughout the world." The Zoning Board of Appeals is ordered to grant the permit as prayed for. Allows erection of 50-foot Vesto tower.

  • Findings of Fact and Decision - PDF

Afflerbach et al v. McManus (Ct Common Pleas of Bucks Co PA, 1964)

Cite as: 36 Pa. D&C2d 495 (1964). A CC&R case won by the radio ham under principles of equity, allowing a 39-foot tower with five-foot mast.

  • Adjudication and Decree Nisi - PDF

In re Putschi (County Board of Appeals, Baltimore Co., MD, 1964)

Holds that while the Zoning Regulations of Baltimore County may prohibit a commercial antenna use, unless a special exception is obtained, a special exception is not required for an amateur radio use.

Skinner v. Twp. of Cherry Hill (Superior Court, Appellate Division, 1963)

Cite as 80 NJ Super 380 (App Div 1963). Relying on Wright v. Vogt, 7 NJ 1 (1951), holding that a radio amateur's 100-foot radio antenna structure used in “his hobby” is an accessory use customarily incidental to the enjoyment of a residential property, and does not violate the 35-foot maximum height allowed in a residential zone.

Menlo Park v. Orr (Superior Court, San Mateo County CA, 1962)

Orr (W6SAI), author of the HF Antenna Handbook, received Planning Commission approval and building permit. Erected 70' Trylon (a brand name) retractable antenna support structure and antenna on 12, 200 s.f. lot.  Antenna system not a public nuisance, and not maintained for any commercial purpose.  Ordinance cited to void permit is an invalid exercise of the police power, because it does not bear any reasonable relationship to public safety, health, morals or general welfare. City estopped from ordering removal. Attorney: the late Ed Peck, K6AN.

  • Findings of Fact and Conclusions of Law - PDF

Halter v. Bd. of Comm'rs (3rd Cir. Ct. Md.,1954)

With stirring words and a comment on "busy and persistent planners," affirms Board of Zoning Appeals (BZA) ruling that "(t)he public safety, health, morals or welfare will in no wise be affected by the erection of the tower among the trees in Mr. Cheek's backyard."

Village of St. Louis Park v. Casey (MN, 1944)

Cite as 218 Minn. 394, 16 N.W.2d 459 (1944). Court holds amateur radio to be a use customarily incident to a residential establishment. This is a "two-lot" case.  Court also finds that antennas on the adjacent lot, where that lot is used by the owner as a part of a single residential estate, are incidental to the residence.

  

  

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Fred Hopengarten 
Telecommunications Lawyer 

 
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