Posted by: Patricia Salkin | June 4, 2015

Fed. Dist. Court in PA Holds Municipality Not Preempted in Regulation of Antenna of Ham Radio Operator

Ham radio aficionado Jeffrey J. DePolo filed a request for a building permit for a “180–foot self-supporting antenna system” in order to pursue his amateur radio operations from his residence in Pennsylvania. Because of the many tall trees on his property and the hilly terrain, that height was the “minimum height necessary” to permit communication on the radio frequencies of interest to him. After the Zoning Officer denied his permit, he appealed to the Township’s Zoning Hearing Board of Appeals and its members (collectively, the “ZHBA”) requesting a permit for an antenna in excess of the 35–foot ordinance limit.

He argued that the Federal Communications Commission (“FCC”) rule known as PRB–1, Federal Preemption of State and Local Regulations Pertaining to Amateur Radio Facilities, 101 F.C.C.2d 952 (1985), adopted at 47 CFR § 97.15(b), (“PRB–1”) preempted the Township from restricting antenna height and the Pennsylvania state law adopting the federal standard preempted the township’s antenna height restrictions.
The ZHBA found that the proposed 180–foot tower was “not compatible” with the surrounding residential neighborhood and “would create an adverse visual impact on the neighborhood.” It also found that the tower’s “height, mass, and latticework design” was “of a type universally associated with a factory area or industrialized complex” and posed a safety hazard to neighboring properties because its fall radius extended well into those properties.

The ZHBA reviewed state and federal regulations. At the state level, Section 302 of the General Local Government Code provided that municipalities regulating antenna height “shall impose only the minimum regulations necessary to accomplish the legitimate purpose of the municipality. Municipalities may impose necessary safety regulations but must accommodate amateur radio communications, by not restricting radio antenna height to less than sixty-five feet above ground level. Municipalities may also take action to “protect or preserve a historic, a historical or an architectural district that is established by the municipality or pursuant to Federal or State law.” And, at the federal level, the ZHBA considered PRB–1’s “policy of limited preemption of state and local regulation.” The ZHBA interpreted this regulation to prohibit “local municipalities from precluding amateur radio communications”, but observed that the FCC expressly declined to regulate the height of radio antenna towers. PRB–1, directed municipalities to “accommodate reasonably” such communications without creating any rights for the amateur radio operators themselves.

The ZHBA found that the R–1/2 residential district in which DePolo lived was designed under Zoning Ordinance § 208–16 “to minimize disruption to notable features such as the Exceptional Value Valley Creek Watershed, Valley Forge Mountain, and the natural, scenic and historic character of the Township.” It also found that the reasonable accommodation required under the FCC’s Second Modification did not “require a municipality to allow an amateur operator to erect any antenna he desires.” The ZHBA concluded that the Township had made a reasonable accommodation contemplated by the FCC by allowing a 65–foot tower which DePolo declined despite “ample evidence” it would permit him to engage in extensive radio communications. The ZHBA also concluded that the Tredyffrin Township Zoning Ordinance limiting the maximum height of structures in the R–1/2 residential district to thirty-five feet was not invalid because DePolo had the opportunity to seek a variance that he withdrew by stipulation. The ZHBA denied DePolo’s application for the 180–foot tower but granted him a permit for a 65–foot tower.

DePolo filed suit. The Court noted that there was no question that the Township took steps to reasonably accommodate DePolo. The Township demonstrated that the Township’s building height ordinance was not rigidly inflexible since the ZHBA compromised and granted DePolo a permit for a 65–foot tower. Further, the ZHBA considered DePolo’s application during the course of hearings held on five days over three months at which it took testimony from the applicant, neighbors and a neighborhood association, as well as interested parties such as the National Park Service and experts who were able to discuss the communications range of differently configured antennas. It made factual findings about DePolo’s proposed tower in comparison with other industrial structures in the neighborhood both as to its physical presence and broadcast reach and it reviewed over one hundred exhibits admitted into evidence. DePolo contended that the Township did not offer to negotiate with him and that he required a 180–foot tower, not a 65–foot one. The Township was silent as to any efforts to negotiate. The ZHBA pointed to Pennsylvania statutes, which block a zoning hearing board from initiating or participating in mediation.

Whether the ZHBA offer of a permit for a 65–foot tower showed enough spirit of compromise was not a question the court needed to answer because the FCC’s requirement for reasonable accommodation requires both sides to strive for accord. PRB–1 does not oblige any Township to give DePolo the tower height he wanted. Indeed, the court stated its focus on the federal interest in radio communications were amply met because of the ZHBA’s factual findings, by DePolo’s existing antenna and the offer of a permit for a 65–foot tower. DePolo, by his own admission, took no steps to meet the Township part way. Instead, he inflexibly demanded a permit for a 180–foot tower. And his subsequent decision to withdraw his permit application short-circuited the process. The court found that the Township’s proposed permit for a 65–foot tower sought to reasonably accommodate DePolo and his decision to insist on his way or the highway did not satisfy the FCC’s accommodative approach. Therefore, the court did not declare that PRB–1 preempted Tredyffrin’s zoning ordinance or the ZHBA’s decision. It granted the defendants’ motions concluding that he cannot invoke the FCC’s limited preemption doctrine when he himself thwarted the very reasonable accommodation that the FCC urged on applicants and municipalities alike.

DePolo v Bd. of Supervisors of Tredyffrin Tp., 2015 WL 2365565 (ED Pa May 18, 2015)

The opinion can be accessed at: http://dockets.justia.com/docket/pennsylvania/paedce/2:2014cv06689/498296


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