COMMONWEALTH OF MASSACHUSETTS

TRIAL COURT

FRANKLIN, ss.	SUPERIOR COURT DEPARTMENT

CIVIL ACTION No.03-00002

RICHARD CHEDESTER,

Plaintiff

v.

TOWN OF WHATELY;

ROGER P. LIPTON, DEBRA CARNEY, AND ROBERT SMITH in Their Capacities as Members of the ZONING BOARD OF APPEALS OF THE TOWN OF WHATELY;

FRED BARDWELL, PETER DEGREGORIO, ANITA HUSTED, NICOLAS JONES AND JOHN TORCIA in Their Capacities as Members of the WHATELY PLANNING BOARD;

AND EDWARD H. BERMAN AND JULIA C. BERMAN,

Defendants

PRE-TRIAL CONFERENCE MEMORANDUM

I. AGREED FACTS IN A FORM SUITABLE FOR SUBMISSION AS AN EXHIBIT AT TRIAL

1.	This is an appeal from the decision of the Zoning Board of Appeals of the Town of Whately ("ZBA") in which the ZBA voted to rescind a Building Permit issued to the plaintiff for the construction of an amateur radio tower antenna structure.

2.	The plaintiff, RICHARD CHEDESTER, is, and at all relevant
times has been, a natural person residing at 260 Haydenville Road, Whately, Massachusetts ("the locus").

3.	The defendant, TOWN OF WHATELY, is, and at all relevant times has been, a municipal corporation existing under the laws of the Commonwealth of Massachusetts, located at 218 Chestnut Plain Road, Whately, Franklin County, Massachusetts.

4.	The defendants, ROGER P. LIPTON, 9 Laurel Mountain Road, DEBRA CARNEY, 15 Laurel Mountain Road, P.O. Box 238, and ROBERT SMITH, 303 Long Plain Road are natural persons who, for the purposes of this action, constitute the ZONING BOARD OF APPEALS OF THE TOWN OF WHATELY. The addresses set forth above are all located in Whately, Massachusetts, although the mailing addresses for the defendants Lipton and Smith are located in Haydenville and South Deerfield, Massachusetts, respectively. The ZBA members are named herein solely in their official capacities.

5.	The defendants, FRED BARDWELL, 159 Haydenville Road, P.O. Box 83,PETER DEGREGORIO, 123 Christian Lane, P.O. Box 131, ANITA HUSTED, 121 Chestnut Plain Road, P.O. Box 145, NICOLAS JONES, 175 Chestnut Plain Road, P.O. Box 515, and JOHN TORCIA, 11 Laurel Mountain, P.O. Box 108, are natural persons who, for the purposes of this action, constitute the PLANNING BOARD OF THE TOWN OF WHATELY ("Planning Board"). The residential and mailing addresses set forth above are all located in Whately, Massachusetts. The Planning Board members are named herein solely in their official capacities.

6.	The defendants, EDWARD H. BERMAN AND JULIA C. BERMAN ("the Bermans"), are natural persons residing at 60 Masterson Road, Whately, Massachusetts.

II. STATEMENT OF WHAT EACH PARTY EXPECTS THE EVIDENCE TO SHOW

PLAINTIFF'S STATEMENT OF THE EVIDENCE

The plaintiff holds record title to the locus jointly with his wife, Jacqueline Kennedy.

The plaintiff is a licensed amateur radio operator and private, noncommercial amateur (also known as "ham") radio station owner, holding an amateur radio operator license and the amateur radio station license with the call letters KB1IPR, both issued by the FCC.

On or about August 14, 2002, the plaintiff applied for a building permit from the Whately Inspector of Buildings for the construction of an amateur radio tower on the locus.

On or about August 21, 2002, the Whately Inspector of Buildings issued the building permit for the proposed tower.

The locus is approximately 10 acres in area and is heavily wooded. The proposed antenna would be located approximately 500 feet from Haydenville Road and 500 feet from the nearest residential neighbor. The tower would be 140 feet in height.

On or about October 28, 2002, the Bermans purported to appeal the issuance of the building permit to the ZBA.

On or about October 28, 2002, the Planning Board purported to appeal the issuance of the building permit to the ZBA.

On or about November 21 and December 5, 2002, the ZBA held a consolidated hearing on the purported appeals filed by the Bermans and the Planning Board.

After hearing, the ZBA voted to revoke the building permit.

The basis for the decision to revoke the building permit was that the support structure for the antenna exceeded the 35 foot height limitation contained in § 171-9 (C) of the Whately Zoning Bylaw ("the bylaw").

The bylaw, on its face and as applied by the ZBA, contains a fixed and unvarying 35-foot limit on the height of structures which may be erected and maintained within Whately, including structures supporting private amateur radio antennas.

The decision of the ZBA failed to reasonably accommodate the amateur radio antenna proposed to be built by the plaintiff and it did not apply the minimum practical regulation to accomplish the Town's legitimate purposes in regulating the height of the plaintiff's proposed radio antenna.

The height limitation contained in the bylaw and its application by the ZBA are unreasonable and arbitrary in that they so restrict plaintiff's ability to receive and transmit radio communications within the terms of his federally granted amateur radio licenses as to constitute a denial thereof.

The plaintiff asserts that the Whately Zoning Bylaw, which contains a fixed and unvarying height limitation, and the decision of the ZBA applying the provisions of the bylaw, violate the "reasonable accommodation" requirements of Federal law, 47 CFR § 97.15 (b), and the "minimum practical regulation" requirement of Federal and state law. Id.; M.G.L. c. 40A, § 3.

A real and justiciable conflict divides the parties as to 1) the applicability of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151 et seq., and the regulations promulgated thereunder, 47 CFR § 97.15 and 101 F.C.C.2d § 952, and 2) the applicability of M.G.L. c. 40A, § 3.

The plaintiff is entitled to a judgment declaring that § 171-9 (C) of the Whately Zoning Bylaw, on its face and as applied by the ZBA, is in conflict with and preempted by the Communications Act of 1934, as amended, 47 U.S.C. §§ 151 et seq., and the regulations promulgated thereunder, 47 CFR § 97.15 and 101 F.C.C.2d § 952; and

The plaintiff is entitled to a judgment declaring that § 171-9 (C) of the Whately Zoning Bylaw, on its face and as applied by the ZBA, violates the provisions of M.G.L. c. 40A, § 3; and

The plaintiff is entitled to a judgment declaring that the application of § 171-9 (C) of the Whately Zoning Bylaw by the ZBA in this case rested on a legally untenable ground inasmuch as the height limitation, by its terms, does not apply to antennas.

The plaintiff further expects the evidence to show that the decision of the ZBA was arbitrary, capricious and rested upon a legally untenable ground, and therefor, the plaintiff is entitled to a judgment annulling the decision of the ZBA and thereby reinstating the building permit.

DEFENDANTS' STATEMENTS OF THE EVIDENCE

Please see attached addenda from the defendants.

DEFENDANTS' BERMAN'S STATEMENT OF THE EVIDENCE

The FCC has made it 100% clear that local boards may regulate the height of antennas and such regulation is not an FCC issue.

This is the threshold issue in this case.

Although plaintiff would like to made the Court think that the Whately bylaw limits antenna heights, nothing could be further from the truth.

In fact, the Whately bylaw permits antennas of unlimited heights.

This is an appeal from the decision of the Zoning Board of Appeals of the Town of Whately (hereafter sometimes referred to as the ZBA) in which the ZBA revoked a building permit issued to the plaintiff to construct an "amateur radio tower" (the building permit did not provide for construction of a supporting structure).

The so-called "amateur radio tower" was to be 140 feet tall, 100 feet taller than any building in Whately except the Congregational Church and five times taller than the average two story house in Whately.

Furthermore, the supporting structure for this "amateur radio tower" seemingly required tons of poured concrete and supporting triangular supports nearly twenty feet apart.

Although the plaintiff bought his structure on an internet auction for a modest price, this "amateur radio tower" probably would have cost in the area of $100,000.00 at the time it was originally built.

Based on plaintiff's own documents, this "amateur radio tower" had to be brought in on a flat-bed trailer truck and would require over 160 hours to erect.

The tower would be located on a pristine wooded hill and would rise 80 to 100 feet over the existing treeline. It would be visible for miles around.

While Mr. Chedester would like to characterize his 140 tall structure as an "amateur radio tower," it is not and, in fact, would be a structural monstrosity which should rather be characterized as an "eyesore" totally out of character with the Town of Whately and indeed totally out of character with all of Franklin County and with all of the western half of Hampshire County which it abuts.

The Town of Whately and indeed all of the communities in the surrounding area have an interest in preserving their communities and their environment.

People live in towns like Whately because 140 foot towers are not there.

In fact, as shown in the Building Permit set forth in plaintiff's Exhibit D, the Building Official did not issue a permit for a 140 foot tower. In fact, as shown in the Building Permit; the Building Official issued a permit for a tower that was 0 feet tall, 0 feet wide, and 0 feet long.

The Whately Zoning Bylaw includes specific provisions for the regulation of communications towers. If Mr. Chedester had not labeled his structure an "amateur radio tower," he would have had to comply with the zoning applicable to communication towers.

These defendants state that the Whately bylaw speaks for itself. The alleged 35 foot limit has no applicability whatsoever as to antennas as they are exempt under the bylaw. The bylaw provides a clear standard by which residents may measure their conduct, including plaintiff who would seek to erect a 140 foot tower in obvious disregard of the 35 foot standard, which standard is a reflection of the wishes of his neighbors and their community.

The evidence will also show that amateur radio operators communicate all over the world without 140 foot tower structures, most of them doing so with antennas that are one-third the size of what plaintiff claims he needs.

The evidence will show that plaintiff had ample opportunity to review the zoning bylaw before purchasing his 140 foot tower.

The evidence will show that in order to have an amateur radio license issued by the FCC an applicant must aver to the FCC that he is familiar with FCC rules and regulations as to amateur radio operations, and that FCC rules clearly and categorically state that the FCC does not preempt local zoning with respect to antenna height bylaws.

DEFENDANTS TOWN OF WHATELY ET ALS STATEMENT OF THE EVIDENCE

III. AGREED SUGGESTED DESCRIPTION OF THE CASE TO BE READ TO THE

JURY DURING EMPANELMENT

Counsel believe that this is not a jury case. Nevertheless, a description follows:

This case involves a dispute over whether the plaintiff, Richard Chedester, is entitled to a permit to build an amateur radio tower on property he owns in the town of Whately, Massachusetts.

IV. STATEMENT OF ALL UNUSUAL LEGAL ISSUES

There are no unusual legal issues.

V. THE NAME AND ADDRESS OF EACH WITNESS TO BE CALLED BY BOTH PARTIES

PLAINTIFF'S LIST OF WITNESSES

In addition to the plaintiff himself and the defendants, the plaintiff may but will not necessarily call the following witnesses at trial:

Tom Williams, writer for QST, an amateur radio magazine, of Shutesbury, Massachusetts

Fred Hopengarden, Attorney and amateur radio operator of Lincoln, Massachusetts

James Hawkins, Building Inspector

Franklin County Co-Operative Inspection Services

James Ross, Neighbor and Contractor, Whately, Massachusetts

Bill Willard, Concrete Contractor, Florence, Massachusetts

Plaintiff reserves the right to supplement this list.

DEFENDANT'S LIST OF WITNESSES

BERMAN'S LIST OF WITNESSES

Julia Berman

Ed Berman

Tom and Maureen Litwin

Jay Kaplan

Marie Huet

Rita Andrus

Marie Shanahan

All witnesses are Whately residents; numerous other witnesses would apparently be prepared to testify.

The Bermans would like to reserve the right to supplement their list of witnesses.

VI. THE NAMES, ADDRESSES, AND QUALIFICATIONS OF EXPERT WITNESSES AND A SUMMARY OF EXPERTS' TESTIMONY

PLAINTIFF'S EXPERTS

The plaintiff may but will not necessarily call the following expert witnesses to testify about the technical aspects and requirements for amateur radio broadcasting:

James B. Mead, B.S.E.E., Ph.D.

President, ProSensing, Inc.

102 Sunderland Road

Amherst, MA 01002

Doc Ewen, Ph.D.

Microwave Remote Sensing Laboratory

University of Massachusetts

Amherst, MA 01003

Plaintiff reserves the right to supplement this list.

DEFENDANT'S EXPERTS

BERMAN'S EXPERTS

The defendants Berman would like to reserve the employing of expert witnesses until the issues for which experts would be necessary or useful have been reasonably identified.

The Bermans would like to reserve the right to supplement their list of expert witnesses.

VII. ESTIMATED LENGTH OF TRIAL

The parties estimate that the trial shall take approximately two to five full trial days.

VIII. SETTLEMENT NEGOTIATIONS

The parties have attempted some settlement negotiations without success.

Respectfully submitted,

Plaintiff, RICHARD CHEDESTER

By his Attorneys,

___________________________

Kristi A. Bodin, BBO # 566802

Alan Seewald, BBO #

SEEWALD, JANKOWSKI & SPENCER, P.C.

Five East Pleasant Street

Amherst, Massachusetts 01002

Telephone: (413) 549-0041

Facsimile: (413) 549-3818

Email: Kristi.Bodin@SeewaldJankowski.com

Defendants, TOWN OF WHATELY, ZONING BOARD OF APPEALS OF WHATELY, and PLANNING BOARD OF WHATELY, et als,

by their Attorneys,

____________________________

Patricia A. Cantor, BBO # 072380

Joel B. Bard, BBO #072380

Kopelman & Paige, P.C.

31 St. James Avenue

Boston, MA 02116-4102

Telephone: (617) 556-0007

Facsimile: (617) 654-1735

Defendants, BERMAN, et als,

by their Attorney,

_____________________________

John C. Jakobek, Jr., BBO #249940

48 Union Street

Easthampton, MA 01027

Telephone: (413) 527-6513

Facsimile: (413) 527-0401

Dated: ________________________________

Certificate of service

I hereby certify that on this day, I served a copy of the foregoing documents upon the parties in this action by in-hand service at Franklin County Superior Court, to all counsel of record.

Signed under the penalties of perjury,

____________________________

Kristi A. Bodin

Dated: _______________