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

PLAINTIFF'S REQUEST FOR FINDINGS OF FACT

The plaintiff in this case, Richard Chedester, by and through his counsel, respectfully requests this Court to make the following findings of fact based upon the testimony and evidence presented at the trial of this matter on October 5, 2004:

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

2.	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.

3.	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.

4.	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.

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

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

7.	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.

8.	On or about August 21, 2002, the Whately Inspector of Buildings issued the building permit for the proposed tower. A true copy of the building permit was submitted as Trial Exhibit 9.

9.	On or about October 28, 2002, the Bermans purported to appeal the issuance of the building permit to the ZBA. A true copy of the Berman's purported appeal was attached to plaintiffs trial memorandum as Exhibit C.

10.	On or about October 28, 2002, the Planning Board purported to appeal the issuance of the building permit to the ZBA. A true copy of the Berman's purported appeal was attached to plaintiffs trial memorandum as Exhibit D.

11.	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.

12.	After hearing, the ZBA voted to revoke the building permit. A true copy of the ZBA decision was submitted as Trial Exhibit 10.

13.	The plaintiff filed his Appeal from the decision of the Whately ZBA on January 3, 2003 in Franklin County Superior Court, Civil Action No. 2003-FRCV-0003.

14.	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. A true copy of plaintiff's licenses was submitted as Trial Exhibit 1.

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

16.	The general height of the trees in the neighborhood is in the range of 80 to 100 feet.

17.	The amateur radio use planned by the plaintiff requires line of sight communication over distances up to 80 miles.

18.	The plaintiff needs an antenna tower sufficient in height to allow communication at the 2.4 and 24 Ghz bands.

19.	To project signals to the south above the trees, a height of approximately 120 feet is needed to equal the tree height.

20.	Clearance is needed to accommodate tree growth so the antenna can emit its energy without being absorbed by the trees.

21.	Exhibits and testimony presented at the ZBA hearing and during trial in this case illustrate the need for the 140 foot tower.

22.	A tower height of 35 feet would prohibit the plaintiff from amateur radio operation at his property.

23.	The plaintiff is prohibited by law from using his amateur radio equipment for commercial purposes.

24.	The plaintiff has no intention of using his amateur radio equipment for any commercial purposes.

25.	The plaintiff intends to use his amateur radio equipment for strictly amateur purposes, including public service purposes.

26.	The sole reason for the Berman's opposition to plaintiff's amateur radio tower was that it would be visually offensive.

27.	The ZBA decision so restricts 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.

Respectfully submitted,

Plaintiff, RICHARD CHEDESTER

By his Attorneys,

___________________________

Kristi A. Bodin, BBO # 566802

Alan Seewald, BBO #546790

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

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 first class mail, postage prepaid, to all counsel of record.

Signed under the penalties of perjury,

____________________________

Kristi A. Bodin

Dated: _______________