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 TRIAL MEMORANDUM

I. INTRODUCTION

1.	This is an appeal, pursuant to G.L. c. 40A, § 17, from the decision of the Zoning Board of Appeals of the Town of Whately ("ZBA") in which the ZBA ordered the revocation of a building permit issued to the plaintiff for the construction of an amateur radio tower and supporting structure on property he owns in the town of Whately, Massachusetts. A true copy of the decision of the ZBA is attached as Exhibit A. In addition, the plaintiff seeks a declaratory judgment that the Whately Zoning Bylaw ("the 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. This Court has jurisdiction over the subject matter of this action pursuant to M.G.L. c. 231A and M.G.L. c. 40A, § 17.

II. STIPULATIONS OF FACT

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.

III. PROCEDURAL HISTORY

1.	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. A true copy of the building permit is submitted herewith as Exhibit B.

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

3.	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 is attached hereto as Exhibit C.

4.	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 is attached hereto as Exhibit D.

5.	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.

6.	After hearing, the ZBA voted to revoke the building permit. (Exhibit A, supra.)

7.	The plaintiff filed this Appeal from the decision of the Whately ZBA on January 3, 2003.

IV. PLAINTIFF'S STATEMENT OF THE EVIDENCE

1.	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.

2.	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.

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

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

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

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

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

8.	Exhibits were presented at the ZBA hearing and during discovery in this case illustrating the need for the 140 foot tower.

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

10.	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.

V. ARGUMENT

1.	The plaintiff's evidence shows that the decision of the ZBA was arbitrary, capricious and rested upon a legally untenable ground, insofar as "antennas" are exempt from the 35 foot height limitation in the Bylaw, and therefor, the plaintiff is entitled to a judgment annulling the decision of the ZBA and thereby reinstating the building permit.

a.	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").

i.	Whately Zoning bylaw § 171-9 (c) addresses Height regulations, and provides:

(1)	Height regulations. No building or structure shall exceed a maximum height of 35 feet, measured from the highest point of the roof to the average finished ground grade on the premises. Measurements shall not include antennas, chimneys or any other permitted accessory which is not intended for human habitation. Height restrictions do not apply to agricultural uses, municipal buildings and churches.

b.	The plain language of the bylaw exempts "antennas" from the 35 foot limitation. State and federal laws pertaining to height of amateur radio antennas make no distinction between an "antenna" and the structure which supports it.

i.	G.L. c. 40A, § 3 uses the term "antenna structure" three times in the section on regulation of amateur radio operators. The terms "antenna" and "structure" are never used separately in this section of the statute.

ii.	47 CFR § 97.15 uses the term "station antenna structures," and never uses the terms "antenna" and "structure" separately.

c.	The rules of statutory construction support the plaintiff's argument that antennas are by definition exempt from the height requirements of the bylaw.

i.	"A basic tenet of statutory construction requires that a statute 'be construed "so that effect is given to all its provisions, so that no part will be inoperative or Superfluous."'Wolfe v. Gormally, Jr., 440 Mass. 699, 704 (2004), citing Bankers Life & Cas. Co. v. Commissioner of Ins., 427 Mass. 136, 140 (1998), (and quoting 2A N. Singer, Sutherland Statutory Construction s. 46.06 (5th ed. 1992).) A statute which contains seemingly conflicting language must be interpreted by a court ". . . if possible, so 'as to make it an effectual piece of legislation in harmony with common sense and sound reason," and "tak[ing] care to . . . carry out the legislative intent." Gormally, 440 Mass. at 704, internal citations omitted.

d.	In addition to the authorities cited, common sense dictates that, with respect to regulating the height of amateur radio operations, the terms "antenna" and "structure" cannot be considered separately. To do so would require one to accept the preposterous notion that an "antenna" can simply float free in the air, unattached to any supporting structure.

e.	The Whately ZBA decision is based on a legally untenable construction and application of the Bylaw, and the plaintiff is entitled to a judgment reinstating his permit.

2.	The Whately Zoning 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 applying the provisions of the bylaw, violates the "minimum practical regulation" requirement of state law. M.G.L. c. 40A, § 3.1

a.	G.L. c. 40A, § 3 provided a measure of protection for amateur radio antenna structures, which was added to the statute in 19952, in an apparent attempt to assure local zoning compliance with the ruling of the FCC in PRB-1. This section of the Massachusetts Zoning Statute has not yet been construed by a Massachusetts court.3

3.	The Whately Zoning Bylaw violates the "reasonable accommodation" requirements of Federal law, FCC Order PRB-1, 101 FCC 2d 952, 50 Fed. Reg. 38813 (September 25, 1985, ("PRB-1") codified in relevant part at 47 CFR § 97.15 (b), and further discussed in FCC Order DA 99-2569.

a.	PRB-1, paragraph 25 provides, "Because amateur station communications are only as effective as the antennas employed, antenna height restrictions directly affect the effectiveness of amateur communications. Some amateur antenna configurations require more substantial installations than others if they are to provide the amateur operator with the communications that he/she desires to engage in . . . Nevertheless, local regulations which involve placement, screening, or height of antennas based on health, safety, or aesthetic considerations must be crafted to accommodate reasonably amateur communications, and to represent the minimum practicable regulation to accomplish the local authority's legitimate purpose." Federal Communications Commission Order PRB-1, 101 FCC 2d 952, 50 Fed.Reg. 38813 (September 25, 1985). ("PRB-1")

b.	The FCC regulations for amateur radio operations codify the above-referenced section of PRB-1:

Station antenna structures.

(a) [Pertains to stations near airports]

(b) Except as otherwise provided herein, a station antenna structure may be erected at heights and dimensions sufficient to accommodate amateur service communications. (State and local regulation of a station antenna structure must not preclude amateur service communications. Rather, it must reasonably accommodate such communications and must constitute the minimum practicable regulation to accomplish the state or local authority's legitimate purpose. See PRB-1, 101 FCC 2d 952 (1985) for details.) 47 CFR § 97.15

c.	"In addition, we believe that PRB-1's guidelines brings to a local zoning board's awareness that the very least regulation necessary for the welfare of the community must be the aim of its regulations so that such regulations will not impinge on the needs of amateur operators to engage in amateur communications." FCC Wireless Order DA-99-2569 (November 19, 1999).

d.	Federal Courts have applied these principles in considering amateur radio antenna height limitations in the following relevant cases:

i.	The relationship between antenna height and effective communication has been expressly stated: "The effectiveness of radio communication depends on the height of antennas." Izzo v. River Edge, 843 F.2d. 765, 768 (3rd Cir. 1988)

ii.	Municipalities must reasonably accommodate amateur radio communications, and are required to attempt to negotiate a satisfactory compromise with applicants: "PRB-1 specifically requires the city to accommodate reasonably amateur communications. This distinction is important, because a standard that requires a city to accommodate amateur communications in a reasonable fashion is certainly more rigorous than one that simply requires a city to balance local and federal interests when deciding whether to permit a radio antenna." . . . "Application of this reasonable accommodation standard, however, does not require the city to allow the amateur to erect any antenna she desires. Instead, it requires only that the city 'consider the application, make factual findings, and attempt to negotiate a satisfactory compromise with the applicant.' Howard v. City of Burlingame, 937 F. 2d 1376, 1380 (9th Cir. 1991); see, e.g., Evans, 994 F. 2d at 762 (stating that the county was willing to permit a crank-up tower, a shorter tower, or a tower located elsewhere); Williams, 906 F. 2d at 997 (stating that the city suggested a limitation on the hours the antenna could be extended, and noting that the amateur could apply for a shorter antenna). Under this approach, a local regulation that impairs amateur radio communications is preempted as applied if the city has not crafted it 'to accommodate reasonably amateur communications' while using 'the minimum practicable regulation (necessary) to accomplish the local authority's legitimate purpose.' (PRB-1 para.25)" Pentel v. Mendota Heights, 13 F.3d 1261 (8th Cir. 1994)(internal citations omitted.)

iii.	The New Hampshire Supreme Court has construed Federal regulations pertaining to amateur radio towers. Marchand v. Town of Hudson, 147 N.H. 380, 788 A.2s. 250 (2001). In Marchand, the town appealed a Superior Court order rescinding a building permit for three 100 foot amateur radio towers. The Marchand court took express notice of the requirements in PRB-1 and its regulatory counterpart, 42 CFR §97.15(b). Id., at 788 A.2d 254. The court held that PRB-1 requires municipalities to do more than simply balance the interests of local and federal government in promoting amateur communications, Id., citing Pentel v. Mendota Heights, 13 F.3d 1261 (8th Cir. 1994). The town is required to consider the application, make factual findings, and attempt to negotiate a satisfactory compromise with the applicant. Id., citing Pentel.

iv.	Zoning bylaws or ordinances which impose an absolute height restriction on amateur radio antennas are facially invalid in light of PRB-1. Palmer v. Saratoga Springs, 180 F. Supp. 2d 379 (N.D.N.Y. 2001), citing Pentel. PRB-1 also preempts a local regulation where a city fails to apply a local ordinance in a manner which reasonably accommodates amateur communications. Id., citing Pentel. Such ordinances are also invalid if they are applied The city had a 20 foot limit on antenna heights. While the ordinance did allow additional heights by special permit, the court held that the city Planning Board had shown bad faith in denying Palmer's application, and ordered the permit to be issued.

v.	A height restriction of 25 feet was held to be invalid as applied to the plaintiff in Bodony v. Sands Point, 681 F.Supp. 1009 (1987). The plaintiff sought to erect a retractable amateur radio antenna which would extend to 86 feet in height. The town argued that antennas were not prohibited, but their height was regulated. The town also argued that the plaintiff had not demonstrated that he could not operate an amateur radio within the height limitation. The court found that the 25 feet limit "seriously interferes with the full enjoyment by Bodony of his license to operate an amateur radio station." Id., at 681 F.Supp. 1013. "The action of the Zoning Board [was] devoid of any effort to make a reasonable accommodation between the two sides." Id. A similar result obtained in Bulchis v. Edmonds, 671 F.Supp. 1270 (W.D. WA 1987).

e.	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.

f.	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.

g.	The ZBA decision contains no mention of any attempt to accommodate the plaintiff, reasonably or otherwise.

h.	The Town may not present evidence regarding the necessity of plaintiff's requested antenna structure height, since that was not a basis for the ZBA decision.

4.	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.

5.	DECLARATORY JUDGMENT

a.	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.

b.	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

c.	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

d.	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.

VI. CONCLUSION

For the foregoing reasons, and on the evidence submitted, the plaintiff is entitled to the relief he seeks.

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 in-hand service at Franklin County Superior Court, to all counsel of record.

Signed under the penalties of perjury,

____________________________

Kristi A. Bodin

Dated: _______________